Metco Plating Co.

National Labor Relations Board - Board Decisions

Jul 18, 1955

113 N.L.R.B. 204 (N.L.R.B. 1955)

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WEEK ENDING NOVEMBER 13 , 1953
Total Doa
Prod.
Op 15
Total
Op 16
Paula Davila Ramos---------------------------------------- 296 214
Carmen Gloria Quinones------------------------------------ 210 208
Isabel Garcia______________________________________________ 130 110
Mercedes Diaz_____________________________________________ 76 122
Ana Maria Acevedo---------------------------------------- 162 114
Nicolasa Catala -------------------------------------------- 214 214
Graciela Serrano___________________________________________ 204 118
Carmen Lina Avila_________________________________________ 78 78
Teofila Flores_____________________________________________ 34 48
WEEK ENDING NOVEMBER 20, 1953
Paula Davila Ramos---------------------------------------- 206 130
Carmen Gloria Quinones------------------------------------ 146 134
Isabel Garcia______________________________________________ 174 4
Mercedes Diaz_____________________________________________ 166 6
Ana Maria Acevedo________________________________________ 244 28
Nicolasa Catala -------------------------------------------- 248 166
Graciela Serrano___________________________________________ 236 106
Carmen Lina Avila_________________________________________ 106 96
Teofila Flores--------------------------------------------- 60 60
Metco Plating Company and Local No . 1, International Union,
Metal Polishers, Buffers, Platers, and Helpers, AFL. Case No.
7-CA-1074. July 18,1955
DECISION AND ORDER
On February 7, 1955, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of those allega-
tions. Thereafter, the Respondent, the C eneral Counsel, and the
Union filed exceptions to the Intermediate Report and supporting
briefs.'
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.2
'Respondent also requested oral argument. In our opinion, the record, the exceptions,
and the briefs fully present the issues and the positions of the parties. Accordingly, the
request is denied.
2 The Trial Examiner resolved many of the credibility issues without specifically dis-
cussing evidence in the record which was contrary to his ultimate findings. The Board
113 NLRB No. 23.
METCO PLATING COMPANY
ORDER
205
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Metco Plating Company,
Detroit, Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Local No. 1, International Union,
Metal Polishers, Buffers, Platers, and Helpers, AFL, or in any other
labor organization of its employees, by discharging or refusing to
reinstate any of its employees or in any other manner discriminating
against them in regard to hire or tenure of employment or any term
or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local No. 1, International Union,
Metal Polishers, Buffers, Platers, and Helpers, AFL, or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion, and to refrain from any or all of 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a.) Offer Gordon E. Brooks immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges previously enjoyed.
(b) Make Gordon E. Brooks whole for any loss of pay he may
have suffered as a result of the discrimination against him by paying
him a sum of money computed as set forth in section V of the Inter-
mediate Report entitled "The Remedy."
(c) Upon request make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records,
social-security payment records, timecards, personnel records and re-
ports, and all other records necessary for a determination of the amount
of back pay due under the terms of this Order.
has carefully consideied the entice record, and finds no reasons to upset the Trial Exam-
iner's credibility findings. Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F.
2,1 362 (C A 3) we agcec with the Trial Examiner that Brooks' discharge violated both
Section 8 (a) (1) and (3) of the Act Whether the discharge be regarded as a violation
of Section 8 (a) (1) or of Section 8 (a) (3), we find that it is necessary to order rein-
statement and back pay, as recommended by the Trial Examiner , in order to effectuate
the policies of the Act.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its plant in Detroit, Michigan, copies of the notice at-
tached hereto marked "Appendix ." ' Copies of said notice, to be
furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by Respondent 's representative , be posted by
Respondent immediately upon receipt thereof and maintained by it
for a period of sixty ( 60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered , defaced, or covered by any other material.
(e) Notify the Regional Director for the Seventh Region in writ-
ing, within ten (10 ) days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORI)ERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that Respondent discharged Charles R.
Carter, Joseph R. Hemsteger , Clarence Limbert , and Jesse H. Martin
in violation of Section 8 (a) (3) and ( 1) of the Act.
3In the event that this order is enforced by it decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enfoi cing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Local No. 1, Inter-
national Union, Metal Polishers, Buffers, Platers, and Helpers,
AFL, or in any other labor organization, of our employees by
discharging or refusing to reinstate any of our employees or in
any other manner discriminating against them in regard to hire
or tenure of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organiza-
tion, to form labor organizations, to join or assist Local No. 1,
International Union, Metal Polishers, Buffers, Platers, and
Helpers, AFL, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from
any or all of 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 Sec-
tion 8 (a) (3). 1
METCO PLATING COMPANY 207
WE WILL offer Gordon E. Brooks immediate and full reinstate-
ment to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges previously
enjoyed.
WE WILL make Gordon E. Brooks whole for any loss of pay
suffered as a result of the discrimination against him.
All our employees are free to become, remain, or to refrain from
becoming or remaining members of the above-named Union, or
any other labor organization, except to the extent that this right may
be affected by an agreement authorized by Section 8 (a) (3) of the Act.
METCO PLATING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date of posting,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF TIDE CASE
These proceedings authorized by Section 10 (b) of the National Labor Relations
Act, as amended, 61 Stat. 136 and 65 Stat. 601-602, herein called the Act, were ini-
tiated pursuant to a charge filed on April 6, 1954, a first amended charge filed on
July 1, 1954, and a second amended charge filed on July 15, 1954, by Local No. 1,
Metal Polishers, Buffers, Platers, and Helpers International Union, AFL, herein
called the Union, against Metco Plating Company (a corporation), herein called the
Respondent or Metco The General Counsel of the National Labor Relations
Board, herein separately designated as General Counsel and the Board, issued a
complaint on August 18, 1954, alleging that Respondent engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the
Act, affecting commerce within the meaning of Section 2 (6) and (7) of the Act.
Copies of the charge, amended charges, and the complaint were duly served upon
the Respondent, who in due course filed an answer denying that it is engaging in
commerce, and specifically denying all allegations of unfair labor practices.
With respect to unfair labor practices, the complaint more specifically alleges in
substance that Respondent, by reason of their affiliation with the Union and con-
certed activities for the purposes of collective bargaining or other mutual aid or pro-
tection, unlawfully discharged, refused to reinstate and continually refuses to re-
employ its employees, Gordon E. Brooks, Charles R. Carter, Joseph R. Hemsteger,
Clarence Limbert, and Jesse H. Martin, thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7 of the
Act, and discriminating in regard to their hire or tenure of employment or other
terms or conditions of employment to discourage membership in a labor organization.
Upon due notice to all interested parties, a hearing was conducted at Detroit,
Michigan, on November 2, 3, 4, 5, and 6, 1954, before the Trial Examiner duly
designated by the Chief Trial Examiner. All parties were represented and partici-
pated in the hearing and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence pertinent to the issues involved.,
When all evidence had been introduced, motion by the General Counsel to con-
form the pleadings to the proof as to minor irregularities such as typographical er-
rors, the spelling of names, dates, etc., was allowed without objection. Ruling on
1 Counsel for Respondent filed exception to invocation of Section 102.87 of the Board's
Rules and Regulations, Series 0, by counsel for the General Counsel in answer to subpoena
duces tecum directing the Regional Director to produce written statement made by Gordon
Brooks to a field examiner of the Board, and the ruling of the Trial Examiner thereon.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motion by Respondent to dismiss the complaint in its entirety at the close of all the
evidence was reserved by the Trial Examiner, and is now denied to the extent set
forth in this Intermediate Report. Oral argument on the record was waived by all
parties. All parties were allowed 20 days from the close of the hearing to file
written briefs and/or proposed findings and conclusions Written brief was filed
only by counsel foi the General Counsel, and has been given due consideration.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Metco Plating Company and Ajax Manufacturing Company are separate corpo-
rations organized and existing under and by virtue of the laws of the State of
Michigan, having a jointly occupied principal office and operating space in adjacent
buildings in the city of Detroit. The operations of both corporations are directed
and controlled by the same management officials. At the present time the officers
of both corporations are Edward Torosian, president and treasurer, Milton K. Pitts,
vice president and general manager, and Vera Elliott, secretary. Pitts is in charge
of overall labor and personnel policies and the coordination of operations. Al-
though separate books are kept, the office employees of Ajax currently perform all
clerical work for Metco, including the preparation of payrolls. Both corporations
employ the same auditor. Ajax employees perform maintenance and janitorial
services for Metco. Employees of both corporations punch a common time clock,
but are distinguished by the use of different colored timecards. Operating space is
leased sepaiately, but the two rooms devoted to Metco's operations are separated by
a third room used by Ajax, and a conveyor belt used by Metco passes through this
room. A dividing wall between the buildings has been broken through to facilitate
combined operations. Metco Plating Company was incorporated to perform the fin-
ishing operations on automobile hardware manufactured, sold, and delivered to
Chrysler Corporation. It purchased from Ajax the machinery and equipment for-
merly used to perform its own finishing operations. The finishing operations in-
clude deburring, polishing, buffing, and plating of hood ornaments, grill bars, name-
plates, ashtrays, and other accessories for new automobiles manufactured by Chrys-
ler Corporation. Ajax delivers its fabricated die castings in skid boxes or tubs to
the buffing room of Metco, where they are deburred, polished, buffed, and placed on
the conveyor belt moving to inspectors and rackers prior to plating. After passing
inspection, the parts are placed on racks and processed through an automatic chrome
plating machine. After plating and further inspection, the finished parts are returned
by conveyor to employees of Ajax in another room, where they are packed and
shipped to Chrysler Corporation.
In the representative annual period from July 1, 1952, through June 30, 1953,
Metco purchased supplies valued in excess of $112,000 primarily within the State of
Michigan. During the same period it furnished products services and supplies to Ajax
Manufacturing Company valued in excess of $200,000. During the same period
Ajax sold and delivered to Chrysler Corporation its entire output of products valued
in excess of $1,200,000. It is admitted that Chrysler Corporation engages in inter-
state commerce on a large scale making annual shipments of newly manufactured
automobiles, parts, accessories, etc., valued in excess of $1,000,000 to points outside
the State of Michigan.
The Board has previously found in Case No. 7-RC-2424, and, by reason of the
interrelated character of their operations and common control of their labor rela-
tions, I find that the operations of Metco Plating Company and Ajax Manufacturing
Company as an integrated business constitute a single employer for the purpose of
asserting jurisdiction.2 It will, theiefore, effectuate the policies of the Act to assert
jurisdiction herein.
It. THE LABOR ORGANIZATION INVOLVED
Local No. 1, International Union, Metal Polishers, Buffers, Platers, and Helpers,
AFL, is a labor organization within the meaning of Section 2 (5) of the Act admit-
ting to membership employees of the Respondent.
2 See F Hilgemeiei & Biro Inc 108 NLRB 352; Marvel Roofing Products, Inc, et at,
108 NLRB 292, Rushville Metal Products Inc, 107 NLRB 1146.
METCO PLATING COMPANY
III. THE UNFAIR LABOR PRACTICES
209
A. The regime of Foreman Weimer
Respondent customarily employed approximately 20 experienced metal polishers
and buffers to perform the finishing work on die castings for Ajax Manufacturing
Company. These operations were conducted in a separate buffing room under the
plenary jurisdiction of a foreman with full authority to hire, promote, and discharge
employees. In January 1953, Respondent hired Homer E. Weimer, and placed him
in complete charge of its polishing and buffing operations. Weimer informed the Re-
spondent that he was a member of the Union, and thereafter hired and fired whoever
he pleased without consultation with General Manager Pitts or anyone else. He
never discriminated against any employee by reason of his affiliation with any labor
organization. On March 5, 1953, an election was conducted by consent, and the
Union failed to receive a majority of the votes required for certification. No ob-
jections or exceptions were filed to the conduct or results of the election. In De-
cember 1953 Robert W Riley joined the Union, and distributed membership appli-
cation cards to employees in the buffing room Thereafter, Riley, Limbert, and
Wondolkowski requested leave of absence to work for another employer. While on
leave, Riley received a request from Foreman Weimer by telephone to pick up two
union application cards for Limbert and Wondolkowski, and to tell them "If they
don't join the Union they are not going to get back over here to work." 3 About
January 1, 1954, Charles R. Carter told Foreman Weimer that all employees in the
buffing room were joining the Union again, and had paid their dues. During the
first week in January General Manager Pitts inquired whether he knew that the men
had signed up for the Union, and Foreman Weimer denied any knowledge of the
organizational activities.
B. Discharge of Gordon E. Brooks
In November 1953, Foreman Weimer hired Gordon E. Brooks, who had practiced
his vocation as a buffer and been a member of the Union for more than 40 years.
Thereafter, Brooks promoted organizational activities among Respondent's employees,
and procured approximately 15 applications for membership in the Union. He
conferred with Foreman Weimer, and requested his cooperation. He was not per-
sonally acquainted with General Manager Pitts, and there is no evidence that his
union activities came to the attention of management other than his immediate
foreman. In the meantime, Foreman Weimer admittedly became disgruntled by
reason of an inadequate bonus tendered to him at Christmas and by failure of
Respondent to grant him an increase in salary. Consequently, Weimer began looking
around for other employment.
During the afternoon of January 14, 1954, Gordon E. Brooks reported to Foreman
Weimer that the blower system, designed to protect workers at their machines
from dust and filth, was out of order. Weimer reported this deficiency to Mainte-
nance Foreman Herman Reckley. Reckley ascertained that a new pulley was needed
to make the necessary repairs, but was delayed until the following morning in
obtaining the required mateiials. At 7 o'clock on the morning of January 15, 1954,
employees in the buffer room, as a group, refused to start up their machines and
go to work. Brooks and others again complained to Foreman Weimer and threat-
ened to go home. Weimer said to them: "The only way you would get that blower
fixed is if you do go home. The quicker you go home that's when you get it fixed."
Thereupon, Gorden E. Brooks and another went home immediately. All other
employees remained idle in the shop to await developments. In the meantime,
another foreman reported the situation to General Manager Pitts at his home by
telephone. Pitts called Foreman Weimer to the phone and said: "Well, Red, if you
don't have any more control over those men than that, and they don't stay here
and work, when they go home you might just as well go home with them." Foreman
Weimer replied: "Well that suits me all right. When can I get my money?" Gen-
eral Manager Pitts proceeded to the buffer room and ordered all striking employees
to go home and stay until notified to return to work. Charles R. Carter and Clarence
Young on behalf of the employees attempted to discuss the situation with General
Manager Pitts, but received scant consideration. Thereupon, the buffers left the
plant. Foreman Weimer was then called into the office and discharged. Upon
investigation thereafter, General Manager Pitts reached the conclusion that Gordon
E. Brooks was the chief instigator of the work stoppage. For that reason, he dis-
8 From testimony of Homer E. Weimer and Robeit «' Riley.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged Brooks by telegram that afternoon , and at the same time notified all of
the other employees to return to work on Monday.
In the absence of other unlawful conduct, the concerted work stoppage on Janu-
ary 15, 1954 , was clearly a protected activity within the meaning of the Act. By
discharging Gordon E. Brooks, the Respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act, and also discriminated in regard to hire or tenure of employment to discourage
membership in a labor organization .4
C. The regime of Foreman Riley
Following the blower incident on January 15, 1954, Respondent recalled Robert
W. Riley and Clarence Limbert from leave status. Riley was appointed as foreman
to succeed Homer E. Weimer ( discharged ). Clarence Limbert was designated
as a subforeman to set up and operate automatic buffing machines . Riley told
Respondent that he was a member of the Union , and no objection was raised.
Charles R. Carter credibly testified that before resuming work on January 18,
1954, he told Foreman Robert W. Riley that all employees in the buffing room
had joined the Union , and wanted fair treatment . Riley assured him of coopera-
tion, because he was himself a member of the Union . At the same time Riley
was informed that Charles R. Carter and Clarence Young had been designated as
a committee to represent the employees.
In February 1954 Charles R. Carter consulted Foreman Riley concerning the
possibilities of a new election . Riley cautioned Carter to go slow with the or-
ganizational activities until the volume of work increased , when there would be a
better chance to succeed . In the meantime, Foreman Riley had rehired Joseph
R. Hemsteger , who had also been a member of the Union for approximately 43
years. Although solicitation was prohibited during working hours, no effort was
made to conceal the continuing organizational activities during the lunch period and
other off-duty time.
In March 1954, Charles R. Carter, Joseph R. Hemsteger , and Jesse H. Martin
procured authorization cards to be signed by a majority of the buffing room em-
ployees, and requested the Union to file petition for a new election.5
Foreman Robert W. Riley credibly testified that Weimer, Brooks , Carter, Hem-
steger, and Limbert had been his friends and fellow workers in the buffing trade
for many years . After his appointment as foreman , he did not attend union meet-
ings , but continued to send in his dues by other union members including Hem-
steger. He knew that most of the "old timers" belonged to the Union, but some
of the younger employees did not.
D. Alleged discriminatory discharges
In March 1954 General Manager Pitts repeatedly complained to Foreman Riley
that excessive amounts of work and materials were being scrapped and remelted
on account of faulty buffing .6 Foreman Riley himself discovered and complained
to Clarence Limbert in the automatic machine section that windshield wiper pivot
covers were not properly deburred . Limbert failed to correct the defective work,
and also had trouble in getting adequate production on the automatic machines.
General Manager Pitts closed down that section, and Limbert was transferred to
work on the manually operated polishing and buffing machines . Thereafter, a
large number of hood ornaments buffed by Limbert were rejected , and he worked
overtime at full pay to repair them . Foreman Riley complained to Charles R. Carter
and Jesse H. Martin about wheel marks on vertical grill bars, and insisted that
they do a better job. Martin said to Foreman Riley: "By God, if I have to do
them any better , I will just quit ." Foreman Riley complained to Joseph R. Hem-
steger about faulty buffing on "Custom " nameplates , and instructed him to repair
a large number of the pieces . Hemsteger disregarded his instructions.
On April 2, 1954, General Manager Pitts pointed out to Foreman Riley a large
amount of accumulated scrap , called him to the office , and demanded that some ac-
s Southern Silk Hills Inc, 101 NLRB 1, 209 F. 2d 155 (C. A. 6) ; N. L. R. B. v. Kenna-
metal, Inc 182 F 2d 817 (C. A. 3) ; Carter Carburetor Corp. v. N. L. R. B., 140 F. 2d
714-18 (C A. 8) ; N. L R B. v J. I Case Company, 198 F 2d 919-22 (C A. 8) ; N. L. It. B.
v. Globe Wireless Ltd., 193 F. 2d. 748-50 (C A. 9) ; Automobile Workers v. O'Brien, 339
U. S 454-459
See Metco Plating Co.. Case No. 7-RC-2424, 110 NLRB 615.
e Defects were often also attributable to die casting and plating , but this case is only
concerned with defective work done in the buffing room.
METCO PLATING COMPANY 211
tion be taken to remedy the situation . Riley explained that he had already talked
to his men about their defective work, and that he deemed it necessary to dis-
charge them. He named Carter, Hemsteger, Limbert, and Martin as the respon-
sible parties . Pitts expressed surprise , because he regarded all of these men as good
buffers of long experience. He agreed, however, that the foreman take such ac-
tion as he saw fit, and consented to the discharges. Thereupon, Foreman Riley
returned to the buffing room shortly before quitting time on April 2, 1954, and
discharged Charles R. Carter, Joseph R. Hemsteger, and Jesse H. Martin. Clarence
Limbert was notified of his discharge by telegram, because he was absent from work
on that date.
Counsel for the General Counsel introduced in evidence a written statement
made by Robert W. Riley through attorneys for Respondent to the National Labor
Relations Board on May 10, 1954, as follows:
I have been employed by Metco Plating Co. since January, 1953, beginning
first as a buffer . I have held my position as foreman of the day shift since
February, 1954, supervising alternately the work of approximately twenty (20)
men who are engaged in deburring , buffing and polishing zinc die castings.
As the supervisor and foreman of these men, I was given , by the company,
the responsibility of hiring , that is, the maintenance of a complement of twenty
( 20) men when , in my opinion , the work in the plant requires such a number.
I have likewise been given the authority to discharge an employee when, in my
opinion , his work or conduct does not meet the standards of the company.
With this authority the company has likewise charged me with the responsibility
of producing quality work.
I have been engaged in the work of buffing and polishing for twenty-seven
years and have held a position as foreman with four different companies. I
am, and have been, a member of the Metal Polishers , Buffers, Platers and
Helpers Union, A. F. of L., since January of 1953, having previously been a
member of United Automobile Workers Union since 1937.
Joseph R. Hemsteger, hired by the company February 23, 1953, laid off
April 14, 1953 and re-hired February 22, 1954; Charles Carter, hired by the
company August 14, 1953, who worked intermittently together with Jesse
Martin, hired February 9, 1953, and who likewise worked intermittently, were
all discharged by myself on April 2, 1954 because of unsatisfactory work.
I had on a number of previous occasions called defective work to their atten-
tion, with the direction that they correct same. These men were all engaged
in buffing and polishing zinc die castings preparatory for chroming , and their
work required that no scale or scratches be left on the same.
A few days before April 2, 1954, I found Joseph Hemsteger, who was working
with a man by the name of Al Rimas, leaving scale on his work. I showed him
a whole box which should have been redone by Hemsteger; somehow it got
through inspection and was chromed, after which the defect was again found
with the result that all of this work had to be scrapped.
On April 2, 1954, it was brought to my attention that some 1,400 castings
finished by Messrs. Carter and Martin were found, after having been chromed,
in the same condition as afore-mentioned and this work likewise had to be
scrapped.
The result of all of the foregoing compelled the discharge of these men
on April 2, 1954. They were personal friends of mine whom I had known
for some period of time, I feel that I should have discharged them before this
date but kept them on thinking that their work would improve. I had, and do
not now have any knowledge as to whether these men were engaged in Union
activity. To my knowledge, they were not creating any dissension among any
of the other employees. The sole and only reason for their discharge was
because that even after it was brought to their attention on a number of
occasions that they were producing unsatisfactory work, they failed to correct it.
Concluding Findings
Having found as a matter of law that the discharge of Gordon E. Brooks for
engaging in the concerted work stoppage of January 15, 1954, was in violation of
the Act, the question remains whether Respondent for the purpose of discouraging
membership in a labor organization also discharged Charles R. Carter, Joseph R.
Hemsteger, Clarence Limbert, and Jesse H Martin on April 2, 1954. Despite his
professed lack of knowledge of the organizational activities of Respondent's employees
in his written statement of May 10, 1954 , it is apparent from all the evidence,
including testimony of Riley himself at the hearing, that Foreman Robert W. Riley
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was apprised of and cooperated to large extent with employees in their efforts on
behalf of the Union. By reason of his membership in the Union and friendly
relationship with other members , I cannot find from a preponderance of the
evidence that he completely aligned himself with Respondent and against the Union.
Undoubtedly , Riley realized that Respondent preferred not to deal with a labor
organization , and advisedly cautioned his fellow union members to go slow in their
organizational efforts until the employment situation was more favorable , but the
evidence is not convincing that he interfered with , restrained , or coerced employees
or indicated any intention to discriminate in regard to their hire or tenure of employ-
ment or other terms or conditions of employment prior to the discharges on April 2,
1954. Foreman Riley had complete authority to hire and fire employees in the
buffing room without consultation with General Manager Pitts or any other higher
official. The record fails to show that any hostility to the organizational activities
was exhibited or communicated to the rank and file employees by General Manager
Pitts or anyone else, other than the discharge of Gordon E. Brooks for participation
in the work stoppage of January 15, 1954.
Upon the entire record in the case, it cannot be convincingly contended that
during the latter part of March 1954 the Respondent was not seriously concerned
and disturbed in its operations on account of an unusual amount of defective work
resulting in the scrapping of valuable work and materials , and that a considerable
part of the deficiency was traceable to faulty buffing of the hardware. In the
absence of adequate records and other information to fix responsibility for the situa-
tion, it was logical for General Manager Pitts to hold his foreman responsible and
demand a remedy . When he did so, Foreman Riley indicated that it would be
necessary to discharge certain men who in his opinion were performing unsatis-
factory work . There is no evidence that General Manager Pitts participated in
or suggested that responsibility be attributed to any particular employees , and there
is scant evidence that he had knowledge of the organizational activities of any particu-
lar individuals . At the time , practically all employees in the buffing room had
joined the Union. Pitts authorized Foreman Riley to take such action as he deemed
best. Thereupon , Foreman Riley , while himself a member of the Union , assumed
full responsibility , made his own decision , and discharged Charles R. Carter, Joseph R.
Hemsteger , Clarence Limbert , and Jesse H. Martin 4 A preponderance of the evi-
dence supports a finding that the aforesaid employees were discharged for cause. In
that respect , I shall therefore recommend that the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III , above, occurring in connec-
tion with its operations described in section I, 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 Respondent engaged in certain unfair labor practices by dis-
criminatorily discharging Gordon E. Brooks because he participated in a concerted
work stoppage with other employees on January 15, 1954, for the purposes of col-
lective bargaining , or other mutual aid or protection , thereby discriminating in re-
gard to hire or tenure of employment , or other terms and conditions of employ-
ment, to discourage membership in a labor organization, and thereby interfering
with, restraining , and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act, it will be recommended that Respondent cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
It will be recommended that Respondent offer to Gordon E. Brooks immediate
and full reinstatement in his former or substantially equivalent position 8 without
prejudice to his seniority or other rights and privileges , and make him whole for
any loss of pay suffered by reason of the discrimination against him by the payment
to him of a sum of money equal to that which he would normally have earned since
the date of his discharge on January 15, 1954, to the date when a proper offer of
'Lmmbert had not participated in the union activities , and it would be purely conjectural
to find from the testimony of Carter and Ilenieteger that Respondent had knowledge that
they had in a public beer garden on the preceding night solicited the membership of
Limbei t.
8 See The Chase National Bank of the City 'of New Yoi k , San Juan , Puerto Rico , Branch,
65 NLRB 827.
CHARLES HART AND LOCAL 450 213
reinstatement is made by Respondent , less his net earnings 9 to be computed on a
quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB
289. Earnings in one particular quarter shall have no effect upon the back-pay lia-
bility for any other such period It will be further recommended that Respondent
make available to the Board and its agents, upon request, all payroll records, time-
cards, and other records necessary to compute the back pay herein awarded
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. Respondent , Metco Plating Company, is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. Local No 1, International Union, Metal Polishers, Buffers, Platers, and Help-
ers, AFL, is a labor organization within the meaning of Section 2 (5) of the Act ad-
mitting to membership employees of Respondent.
3. By discriminatorily discharging Gordon E. Brooks because he participated in
a concerted work stoppage with other employees for the purpose of collective bar-
gaining or other mutual aid or protection, thereby discriminating in regard to hire
or tenure of employment or other tei ms or conditions of employment, to discour-
age membership in a labor organization , and thereby interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act, Respondent, Metco Plating Company, engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of the Act
4. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
6 See Crossett I nnibcr Company, 8 NLRB 440, 497-8.
Charles Hart and Local 450 , International Union of Operating
Engineers , AFL and E rnest H. Liles. Case No. 39-CB-69. July
18,1955
DECISION AND ORDER
On February 28, 1955, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents, Charles Hart and Local 450, International Union of
Operating Engineers, AFL, herein called Local 450, had not engaged
in any unfair labor practices and recommending that the complaint
be dismissed, as set forth in the copy of the Intermediate Report at-
tached hereto.
On May 5, 1955, the Board denied the General Counsel's motion to
reopen the record on the basis of newly discovered evidence which was
not particularized. Thereafter, on May 9, 1955, the General Counsel
renewed the motion, alleging specifically that the newly discovered
evidence consists of a letter drafted by a duly authorized representa-
tive of Local 450 on April 1, 1955, subsequent to the hearing herein ;
that the letter allegedly states that a representative of Local 450 re-
quested Ernest H. Liles, the Charging Party, not to work on the job
on which he was then working and that this request covers the same
work involved in this proceeding. The General Counsel asserts that
113 NLRB No. 24.