Machine Products Co., Inc.

National Labor Relations Board - Board Decisions

May 18, 1951

94 N.L.R.B. 668 (N.L.R.B. 1951)

(668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that period. Earnings in one particular quarter shall have no effect upon the back
pay liability for any 'other quarter.
I shall also recommend that the Respondent make available to the Board,
upon request, payroll and other records to facilitate the checking of the amount
•of back pay due 2'
The violations of the Act which the Respondent committed are persuasively
related to other unfair labor practices proscribed by the Act, and the danger
^of their commission in the future is to be anticipated from the Respondent's
conduct in the past. The preventive purposes of the Act will be thwarted unless
the order is coextensive with the threat In order, therefore, to make more
effective the interdependent guarantees of Section 7, to prevent a recurrence of
unfair labor practices, and thereby minimize industrial strife which burdens
.and obstructs commerce, and thus effectuate the policies of the Act, it will be
recommended that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record of the
case, I make the following :
CONCLUSIONS OF LAW
1. Amalgamated Clothing Workers of America 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 Helen
Little and Hazel MViunyon, 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 such discrimination and 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.
[Recommended Order omitted from publication in this volume ]
zx F. W. Woolworth Company, supra.
MACHINE PRODUCTS COMPANY, INC. and LOCAL No. 948 , INTERNATIONAL
UNION OF OPERATING ENGINEERS . Case, No. 16-CA-252. May'
18, 1951
Decision and Order
On February 12, 1951, Trial Examiner C. W. Whittemore 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 he cease' and desist
therefrom and take certain affirmative action, as set forth in the copy
,of the Intermediate Report attached hereto. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a brief in
support thereof.
.94 NLRB No. 106
MACHINE PRODUCTS COMPANY, INC. 669
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].
The Board 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 brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the addition noted in the margin.2
Order
Upon the entire record in the case, the National Labor Relations
Board hereby orders that Machine Products Company, Inc., its offi-
cers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local No. 948, International
Union of Operating Engineers, or in any other labor organization of
its employees by discriminatorily discharging them, or by discrimi-
nating in any other manner in regard to their hire, tenure of employ-
ment, 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 Local No. 948, International
Union of Operating Engineers, or any other labor organization,,to
bargain collectively through representatives of their own choosing,
and to engage in collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities except to the extent
that such right may be affected by an agreement requiring membership,
in a labor organization as a condition of employment, as authorized in-
Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof.
2. Take the following affirmative action which the Trial Examiner
finds will effectuate the policies of the Act:
(a) Offer to M. B. Rosenbuml and W. J. Ballew immediate and'
full reinstatement to their former or substantially equivalent positions.
without prejudice to their seniority and other rights and privileges.
(b) Make whole said Rosenbum and Ballew in the manner set
forth in the section of the Intermediate Report entitled "The Remedy."
(c) Upon request, make available to the Board or its agents for ex-
amination and copying all payroll records, social security payment
i The Respondent' s request for oral argument , is hereby denied as we believe that they
record and brief adequately present the issues and positions of the parties
2 We agree with the Trial Examiner ' s finding that jurisdiction should be asserted__
Memphis Cold Storage Warehouse Company, 91 NLRB 1404; Westport, Moving and Storage-
Company, 91 NLRB 902
670 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
records, time cards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due.
(d) Post at the plant in Tulsa, Oklahoma, copies of the notice
attached hereto as Appendix A.3 Copies of such notice, to be fur-
nished by the Regional Director for the Sixteenth Region, shall, after
being duly signed by the Respondent's representative, be posted by it
for sixty (60) consecutive days thereafter in conspicuous places in-
cluding all places where notices to employees customarily are posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) days from the date of the receipt of this
Order what steps the Respondent has taken to comply herewith.
Intermediate Report
Mr. James R. Webster, for the General Counsel.
Mr. Joseph H. McDowell, of Kansas City, Kans, for the Respondent
Mr. C. C. Callicoat, of Tulsa, Okla., for the Union.
STATEMENT OF THE CASE
Upon charges duly filed by Local No. 948, International Union of Operating
Engineers, herein called the Union, the General Counsel of the National Labor
Relations Board, herein respectively called General Counsel and the Board,
by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued
a complaint dated December 18, 1950, against Machine Products Company, Inc.,
of Wichita, Kansas, and Tulsa, Oklahoma, herein called the Respondent,
alleging that the 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,
herein called the Act. Copies of the charges, the complaint, and notice of hear-
ing were duly served upon the parties.
With respect to unfair labor practices the complaint alleges that the Respond-
ent: (1) Warned its employees to refrain from assisting the Union; (2) dis-
criminatorily discharged employees Al. B. Rosenbum and W. J. Ballew because
of their union activities; and (3) by those acts interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed by the Act.
Thereafter the Respondent filed an answer, in which it denied that it was
engaged in commerce within the meaning of the Act and that it had committed.
the unfair labor practices alleged.
Pursuant to notice a hearing was held at Tulsa, Oklahoma, on January 16,
1951, before the undersigned Trial Examiner, duly designated by the Chief
Trial Examiner. The General Counsel and the Respondent N% ere represented
3 This notice, however, shall be and it hereby is amended by striking from the first
paragraph thereof the words, "The Recommendations of a Trial Examiner" and sub-
stituting in lieu thereof the words, "A Decision and Order." In the event that this
Order is enforced by a decree of a United States Court of Appeals, there shall be inserted
betore the wordy, "A Decision and Order" the words, "A Decree of the United States Court
of Appeals Enforcing "
MACHINE PRODUCTS COMPANY, INC. 671
by counsel ; the Union by an official. All parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
hearing upon the issue At the conclusion of the hearing counsel waived oppor-
tunity to file briefs, but argued orally before the Trial Examiner. Ruling was
reserved upon a motion by the Respondent to dismiss the complaint Disposition
of said motion is made in the findings, conclusions, and recommendations appear-
ing below.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Machine Products Company, Inc., is a Kansas corporation, having its prin-
cipal office and place of business at Wichita, Kansas. It is engaged in the
vicinity of Tulsa, Oklahoma in the protection and maintenance of an aircraft
assembly plant consisting of eight permanent buildings and an undetermined
number of temporary buildings, with floor space aggregating more than 1,988,000
square feet. The plant was constructed for and is used by the U. S. Air Force
for the assembly of aircraft parts and equipment. At the time of the hearing
it was being maintained by the Respondent in a stand -by condition for the U. S,
Air Force.
Contrary to the contention of the Respondent, the Trial Examiner is of the
opinion that the nature of the Respondent's business, at the Tulsa operation,
is such that it falls within the category of enterprises "substantially affecting
national defense" over which the Board has determined it will exercise jurisdic-
tion. (Westport lloi.ing and Storage Co )
H. THE LABOR ORGANIZATION INVOLVED
Local No. 948, International Union of Operating Engineers, is a labor organi-
zation admitting to membership employees of the Respondent at said Tulsa
operations.
HI. THE UNFAIR LABOR PRACTICES
A. The discriminatory discharges; interference, restraint, and coercion
The kernel of this case is the question as to whether or not two employees were,
in violation of the Act, discriminatorily selected for layoff at a time of non-
discriminatory reduction in force. That is, General Counsel concedes that
the Respondent was motivated by legitimate reasons in effecting a reduction in
force, but contends that it selected two individuals for layoff because of their
union activities.
The reduction in force as a setting requires but brief mention. Under con-
tract with the U S Air Force the Respondent assumed maintenance responsi-
bility for the Tulsa operations on September 30, 1949. It hired and placed on
its payrolls about 100 employees who had, in some cases, for many years been
Government employees doing generally the same type of work at the same plant.
In early November the Respondent decided that in order to keep within funds
allotted under the contract it would be necessary to reduce its force. At a con-
ference of two of the Respondent's officials and representatives of the U. S.
Air Force, held on November 8, it was determined that a necessary saving would
he made by laying off two electricians and two employees of the boiler room force.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support of his claim of discriminatory selection of two of the four em-
ployees , General Counsel introduced evidence establishing considerable union
activity in the plant at this time, in which these two employees were known
leaders. These circumstances , in summary , were as follows. About Novem-
ber 1 , M. B Rosenbum , an engineer in the boiler room and for some years a
member of the Union , approached the union business representative regarding
the organization of the employees under the new setup. They discussed the
possibility of establishing the "industrial " type of representation , as opposed to
separate craft units , and Rosenbum was given authorization cards for the
purpose of obtaining signatures to them . Rosenbum again met with the union
representative on November 3 and a meeting of employees was held the follow-
ing day. On November 7, Callicoat, the union representative , called on T. P.
Buck, the Respondent 's general superintendent , and asked for recognition of
the Union as representative of certain employees in the plant . Buck told Calli-
coat that he would first have to talk with Captain C E Emanuel , commanding
officer at the assembly plant. Emanuel told Callicoat that while he had no
objections to organizing , it would be necessary that the Union be "properly
investigated ," and if nothing "disfavorable to the Goveinment " was rei ealed,
the Air Force would not be "opposed to organized labor "
Credible evidence establishes that Buck and other management representa-
tives were aware of the organizing leadership taken by Rosenbum and W J.
Ballew , an electrician , and that this knowledge was acquired before the two
were selected for layoff on November 12. Both Buck and Foreman J. O. Sill-
man admitted that the former had questioned the latter about "dissension"
among the employees and eabout union activity in the plant , and that they had
discussed Ba1lew specifically-particularly the fact that Ballew had asked
Sillman himself to join . On November 8 Sillman called Ballew aside, asked
him how many cards he had "signed up ," inquired if he thought Buck knew of
his activity and when the employee admitted some uncertainty assured him
that "I think he knew it" and then told him that if he lost his job because of
it he did not want him to think that he had had anything to do with it. Buck
and H . B. Hobby, plant engineer with supervision over the department in which
Iosenbum woiked directly under Foreman K. C . Ellington , discussed the fact
that Rosenbum was a member of the Union. And Ellington, as a witness,
admitted that he had warned Rosenbum that he had "better go a little bit
slow on his talking," and that while he did not mention the word "Union"
he was "sure that Rosenbum understood that I was talking about the Union
as well as I did."
In the foregoing setting Rosenbum and Ballew were selected for termination
on November 12 According to the credible testimony of Hobby, on November
8 or 9 Buck told him of the reduction decided upon and said he wished to make
it effective as soon as possible . Hobby suggested that he, himself, check with
Ellington who was in direct charge of the engineers , and then submit two
names to the superintendent. Buck said he would prefer to decide the identity
of the individuals to be laid off in this department at once, and said he had
already decided Rosenbaum was to be one On the basis of Buck's own testi-
mony it is found that Rosenbum was selected for termination by the superin-
tendent without reference to any of the company records, without consulta-
tion with the foreman in charge, and without consideration of Rosenbuni ' s ability
as a workman . On the basis of Hobby's credible testimony it is further found
that in the selection of the second person for layoff from this department,
with whose termination this case is not concerned, Buck consulted Ellington.
MACHINE PRODUCTS COMPANY, INC. 673
As to Ballew, Foreman Sillman made the selection. According to his testimony
he chose Ballew from among the electricians under him on the basis of "classifi-
cation" and qualifications Later in his testimony he admitted that there was
no "classification" of his electricians at that time Thus "qualification" re-
mained, according to his testimony, the sole basis. His testimony on this point
is confused and unconvnncinc After stating flatly that Ballew "couldn't do
refrigeration work" he said lie could recall no specific occasion when he had
"tried" him on this work and "couldn't say" as to his qualifications for this work.
'He further admitted that Ballew performed all jobs given to him, and the only
single incident when he had found fault with his performance was in making
one "feeder" splice. Sillman further admitted that Ballew had tutored him in
his studies he was engaged in during a course in electrical engineering. Ballew's
testimony, on the other hand, is undisputed that as to experience in maintenance
at that plant he had considerably more seniority than a number of other elec-
tricians who were retained at the time of the reduction in force. He was an
electrician of 16 or 17 years' general experience.
Buck claimed that he selected Rosenbum because he "had heard from
various sources" that he "spent lots of time talking," although lie said lie did
not know what he was talking about. He later said he "thought" Rosenbum was
wasting his time and that of others, but admitted he knew of no complaints
on this score, and admitted lie consulted no one about the selection. Ellington,
Rosenbum's direct supervisor, testified that the employee never neglected his
work, and that it was his duty to "go round over the building," that he knew
of no occasion when he had criticized Rosenbum, and that when lie warned
the employee about talking it was with reference to union matters.
In resolving the conflict in evidence as to motives for selecting Rosenbum,
the Trial Examiner relies in large part upon the marked credibility of Hobby's
testimony. His testimony was given with convincing restraint and directness;
it was unchallenged by any cross-examination. Although Buck's testimony,
when first called as a witness, was substantially different from that of Hobby,
subsequently called, when the superintendent thereafter was recalled he admitted
that Hobby's account of their consultation at the time of selecting Rosenbum
was correct Following his interview with Buck, when the superintendent in-
sisted upon laying off Rosenbum and declined to permit himself and Ellington
to make suggestions based upon availability, IIobby lay awake that night and
tendered his resignation the next morning because he did not feel he "could
stay and enjoy the confidence of the Company and the employees" Under the
circumstances the Trial Examiner is convinced, and finds, that Buck selected
Rosenbum for layoff in this department because of his known leadership in
organizing for the Union.
The Trial Examiner is likewise persuaded by the preponderance of credible
evidence that Sillman's selection of Ballew was also based upon the employee's
known union activity. Whether Buck actually was instrumental in the selection
of Ballew or not, it is undisputed' that Sillman warned the employee that
because of his union activities he was likely to be discharged.
In summary, it is concluded and found that both Rosenbum and Ballew were
discriminatorily discharged on November 12, 1949, because of their union
activities, and that by these discriminatory discharges, and by: (1) Sillman's
questioning of Ballew as to the number of authorization cards signed and his
statement to the effect that lie might be discharged because of union activities,
and (2) Ellington's warning to Rosenbum that he had better go slow in similar
'When queried about this warning, Sillman simply said he did not remember it. The
Trial Examiner does not consider an avowed lack of memory as an effective denial.
953841-52-vol 94-44
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities, the Respondent has discouraged membership in the Union and inter-
fered with, restrained, and coerced employees in the exercise of rights guaranteed
by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring
in connection with its operations described in Section 1, above, have a close,.
intimate, and substantial relation to trade. traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V THE REMEDY
Having found that the Respondent has engaged in unfair labor practices,
the Trial Examiner will recommend that it cease and desist therefrom and
take certain affirmative action which will effectuate the policies of the Act.
It has been found that the Respondent discriminated in regard to the hire
and tenure of employment of Al. 13 Rosenbuni and W. J Ballew. It will be
recommended that the Respondent offer to them immediate and full reinstate-
ment to their former or substantially equivalent positions 2 and make them
whole for any loss of pay they may have suffered as a result of the discrimina-
tion against them by payment to each of a sum of money equal to that wbich
be would havg earned as wages from November 12, 1249, to the date of the
offer of reinstatement Loss of pay shall be computed on the basis of each
separate calendar quarter or portion thereof dining the period from the Re-
spondent'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 each would normally have earned
for each such quarter or portion thereof, his net earnings,' 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 accordance
with the Woolworth decision, it will be recommended that the Respondent, upon
reasonable request, make available to the Board and its agents all records
pertinent to an analysis of the amount due as back pay.
The unfair labor practices found reveal on the Part of the Respondent such
e fundamental antipathy to the objectives of the Act as to justify an inference
that the commission of other unfair labor practices may be anticipated. The
preventive purposes of the Act may be frustrated unless the Respondent is
required to take some affirmative action to dispel the threat. It will be recom`
mended, therefore, that the Respondent cease and desist from in any manner
interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local No 948, international Union of Operating Engineers, is a labor
organization within the meaning of Section 2 (5) of the Act.
2 The Chase National Bank of the City of New York, San. Juan, Puerto Rico, Branch,
65 NLRB 827.
2 Crossett Lumber Company , 8 NLRB 440 , 497-8.
4 F. W . Woolworth Company, 90 NLRB 289.
ANGWELL CURTAIN COMPANY, INC. 675
2. By discriminating in regard to the hire and tenure of employment of Al. B.
Rosenbum and W. J. Ballew, 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 such discrimination and by interfering with, restraining, and coercing
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.
[Recommended Order omitted from publication in this volume.]
ANGWELL CURTAIN COMPANY , INC. and AMERICAN FEDERATION OF
LAROII . Case No. 35-CA-118. May 18, 1951
Decision and Order
On February 2, 1951, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged 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
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the Respondent's brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the additions and modi-
fications hereinafter set forth :
1. The Trial Examiner found, and we agree, that the Respondent
discriminatorily discharged Stella Thomas in violation of Section 8
(a) (3) and 8 (a) (1) of the Act.
As detailed in the Intermediate Report, the record shows that
Thomas was regarded as an efficient and wholly satisfactory employee;
she has received several merit increases, and was utilized to train new
and inexperienced workers in her department. After her layoff in
July, she was called back on August 15, but was discharged 3 days
later, on August 18, the day the Union filed its petition for representa-
tion. Thomas had become active in the Union after August 15. At
the time Thomas' employment was terminated she was advised that
1Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Houston, Reynolds,
and Styles].
94 NLRB No. 83.