National Electric Products Corp.

National Labor Relations Board - Board Decisions

Dec 30, 1949

87 N.L.R.B. 1536 (N.L.R.B. 1949)

In the Matter of NATIONAL ELECTRIC PRODUCTS CORPORATION and
CLAUDE C. CARNES, AN INDIVIDUAL
Case No. 6-CA-63.-Decided December 30, 1949
DECISION
AND
ORDER
On October 19, 1949, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent 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 attached hereto. Thereafter, the charg-
ing party, Claude C. Carnes, filed exceptions to the Intermediate
Report together with a supporting brief.
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 brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendation
of the Trial Examiner.2
ORDER
Upon the entire record in this case, and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the complaint issued herein
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
[ Members Houston , Reynolds , and Murdock].
2 The Intermediate Report contains certain inaccuracies , none of which affects the Trial
Examiner ' s ultimate conclusions or our concurrence in such conclusions . Accordingly,
we make the following corrections : ( 1) although we agree with the Trial Examiner that
the Board decision with respect to Marfia's discharge is not relevant to this case, we
reject his implication that a Board finding in one proceeding may not be used as a basis
for a finding in a later proceeding involving the same employer ; ( 2) we reject the Trial
Examiner 's conclusion that Carnes was not eligible for membership in the UE because the
unit for which the UE petitioned did not include chemical and laboratory workers.
Eligibility for union membership is not necessarily dependent upon unit inclusions ; and
(3) we do not adopt that portion of the Intermediate Report in which the Trial Examiner
expresses a belief that Carnes' activity in connection with Executive Order 9240 might
not be protected under the Act. We express no opinion as to whether the activity in which
Carnes engaged was protected under the Act.
. 87 NLRB No. 150.
153E
NATIONAL ELECTRIC PRODUCTS CORPORATION 1537
against the Respondent, National Electric Products Corporation, Am-
bridge, Pennsylvania, be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Emil E. Nariclc, Esq., for the General Counsel.
James M. Houston, Esq., and Eugene R. Speer, Esq., of Pittsburgh, Pa., for the,
Respondent.
STATEMENT OF THE CASE
Upon a charge filed by Claude C. Carnes, an individual, the General Counsel'
by the Regional Director for the Sixth Region (Pittsburgh, Pennsylvania), of the.
National Labor Relations Board, herein called the Board, issued his complaint
dated June 24, 1949, against National Electric Products Corporation, 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 Labor Management Relations
Act, 1947, 61 Stat. 136, herein.called the Act. Copies of the complaint and the,
charge, together with notice of hearing thereon, were duly served upon the Re-
spondent and Claude C. Carnes.
With respect to unfair labor practices, the complaint alleged in substance that.
the Respondent on or about November 28, 1947, discharged Claude C. Carnes, and
thereafter refused and failed to reinstate him because of his activities for and
on behalf of the United Electrical, Radio, and Machine Workers of America,
C. I. 0., hereinafter called the UE, and because he engaged in concerted activities
with other employees of the Respondent for the purpose of collective bargaining
and other mutual aid and protection, and in order to discourage membership in
the Union.
The Respondent thereafter filed its answer admitting the material allegations
of the complaint with respect to the nature of its business, denying the com-
mission of any unfair labor practices, and setting up certain affirmative defenses,
which are hereinafter described and considered.
Pursuant to notice, a hearing was held on July 19, 20, and 21, 1949, at Pitts-
burgh, Pennsylvania, before the undersigned, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. On July 21, 1949, the General Counsel re-
quested an adjournment of the hearing so that he might examine certain docu-
mentary evidence in the Respondent's files. The motion was granted by the
undersigned without objection and the hearing was adjourned to August 2, 1949.
On July 28, 1949, the undersigned telegraphed the parties as to their position
as regards resuming the hearing on August 2, 1949. On or about August 1, 1949,
the undersigned was advised informally by the General Counsel that the parties
had agreed that the hearing should be closed as of August 2, 1949. On the latter
date the undersigned received letters from counsel for the parties to the effect
that both were desirous of closing the record as of July 21, 1949. Thereafter, on
August 5, 1949, the undersigned issued an order closing the hearing as of July
21, 1949. At the hearing herein the General Counsel and the Respondent were
represented by counsel. Carnes though present throughout the hearing did not
enter an appearance, nor was he represented by counsel or otherwise. Full op-
portunity to examine and cross-examine witnesses and to introduce evidence bear-
ing upon the issues was afforded all parties. At the opening of the hearing the
General Counsel filed a motion with the undersigned to the effect that the
877359-50-vol. 87-98
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent particularize its affirmative defense that Carnes was discharged be-
cause he was an undependable employee. The motion was denied by the under-
signed. At the close of the hearing the General Counsel moved to conform the
pleadings to the proof as regards formal matters such as names, dates, and the
like. The motion was granted without objection. Counsel waived oral argument.
Though given an opportunity to file with the undersigned proposed findings of
fact, conclusions of law, and briefs in support thereof, counsel did not avail
themselves of this opportunity.
Upon the entire record in the case, and from his observation of the witnesses, the
undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The National Electric Products Corporation is a Delaware corporation, hav-
ing its principal office and place of business in Ambridge, Pennsylvania, where
it is engaged in the production, manufacture, sale, and distribution of steel con-
duits, wire, cables, and other electrical equipment.
During the past 12-month period the Respondent purchased raw materials for
use at its Ambridge, Pennsylvania, plant, valued in excess of $12,000,000, approxi-
mately 90 percent of which was shipped from points outside the State of Penn-
sylvania. During the same 12-month period, the Respondent manufactured at
its Ambridge, Pennsylvania, plant, equipment valued in excess of $19,000,000, ap-
proximately 88 percent of which was shipped to points outside the State of
Pennsylvania.
The Respondent employs approximately 1,700 people.
The Respondent concedes and the undersigned finds that it is engaged in com-
merce within the meaning of the Act, and that it is subject to the jurisdiction of
the Board.
II. THE ORGANIZATIONS INVOLVED
United Electrical, Radio, and Machine Workers of America, C. I. 0., is a labor
organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The alleged discriminatory discharge of Claude C. Carnes
. Claude C. Carnes was hired by the Respondent in 1931 as a chemist. He was
hired by R. J. McCrory, chief chemist in charge of the Respondent's laboratory.
Throughout Carnes tenure of employment with the Respondent he was under the
direct supervision of McCrory. On November 28, 1947, Carnes was discharged
by McCrory on the direct instructions of R. W. Biggs, the Respondent's works
manager.
Carnes' tenure. of employment with the Respondent was a stormy one, par-
ticularly during the war years and up to the date of his discharge. He and
McCrory got along well together from 1931 to sometime in 1941 or 19421 Their
working space occupied a small area and they were in daily contact with each
other. In.fact they had an office together and their desks were opposite each
other. In 1935, McCrory bestowed the title of assistant chief chemist on Carnes.
This was done at the time he was taken off an hourly basis and put on a salary.
1 The record is not clear as to the exact date.
NATIONAL ELECTRIC PRODUCTS CORPORATION 1539
The record is clear that he had no supervisory authority at any time during
his tenure of employment. According to McCrory, Carnes was an excellent
chemist, and the quality of his work was outstanding. The quantity of his
work was likewise good, at least up until the last few months before his discharge.
Sometime in 1941 or the early part of 1942 Carnes and McCrory had a dis-
agreement over the signing of certain affidavits relative to the testing of materials
and equipment which Respondent was then manufacturing for the Navy. Ac-
cording to Carnes, McCrory was engaged in sabotage in that he was permitting
faulty equipment to be shipped to the Navy, and in order to protect himself and
the Respondent forced Carnes to sign false affidavits that the equipment met
the Navy's requirements. Carnes and McCrory had a heated argument at this
time and Carnes refused to sign any more affidavits. The truth or falsity of
Carnes' accusation is no concern of the undersigned, except insofar as the feeling
that developed between McCrory and him following this incident is material to
the issues herein. Suffice it to say however that as a result of Carnes' accusation,
the friendship between the two men cooled following the incident and from that
time on they spoke to each other only when necessary in the course of their work
in the laboratory. Despite Carnes' accusation against him, McCrory testified that
from the time of the incident up until at least a few months before Carnes'
discharge, the quality and quantity of his work remained at a high standard.
Sometime in. 1945, Carnes went to McCrory and requested an increase in his
salary. McCrory agreed that he was entitled to a raise and promised to take
it up with the works manager, at that time one Lamont, which he did. Shortly
thereafter Carnes became impatient when the raise did not come through as
quickly as he thought it should and requested permission from McCrory to go di-
rect to Lamont and discuss the matter. McCrory granted him permission to
do so. Carnes went to Lamont and in the course of the conversation that en-
sued became angry and called Lamont "a saboteur and a son-of-a-bitch." For
this offense he was fired forthwith and ordered out of the plant. Some 6 or 8
weeks later he was reinstated to his old job, and his offense was forgiven by
the management. The record is clear however that regardless of his "for-
giveness" a deep resentment still remained between him and members of the
management. However he went about his work as usual and followed his usual
routine.
At all times material herein the personnel in the laboratory consisted of
McCrory, chief chemist, Carnes, and three girls all of whom were paid on a
salary basis. In addition there were two hourly paid employees, Charles Maupin
and Edward A. Rafferty.
. Carnes being an experienced chemist handled the more difficult jobs, and
when not so engaged took care of the routine work, such as testing wires and
the like. Maupin and Rafferty, who were broken in by Carnes, performed the
routine work and the more simple analyses. Up until either the latter part
of February or early March 1947, Carnes went in and out of the plant at will.
At about that time, R. W. Biggs, works manager, instructed McCrory to confine
Carnes to the laboratory, and not to permit him to go out in the plant unless
he first secured permission to do so. The reason for Biggs' instructions will
be set forth in detail hereinafter.
There is some conflict in the testimony as to just when Biggs issued his orders
to McCrory regarding Carnes' confinement to the laboratory. According to the
testimony of Biggs and McCrory, the orders were issued. in November 1946.
On the other hand, Carnes, Maupin, and Rafferty testified that they were present
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when McCrory told Carnes of Biggs' instructions and that the order was issued
in either the latter part of February or early in March 1947. Both McCrory
and Biggs in the main. impressed the undersigned as honest witnesses. Carnes
though a nervous and garrulous witness with obvious animus towards the Re=
spondent, nevertheless impressed him as an honest witness despite the fact that
he tended to exaggerate in his testimony. Maupin and Rafferty favorably im-
pressed him as being honest and forthright witnesses. In such a state of the.
record the undersigned credits the testimony of Carnes, Maupin, and Rafferty
that McCrory notified Carnes of Biggs' instructions sometime in either the latter
part of February or March 1947. The undersigned is convinced that Biggs and
McCrory were mistaken as to the date, and did not deliberately testify falsely in
this regard.
Sometime in the latter part of December 1946, or the first part of January
1947, Carnes became interested in Executive Order 9240, which provided for over-
time payments for work performed on the seventh day. He discussed the mat=
ter with several fellow employees, particularly Andrew I. Duda, Frank Marfia,
and Raleigh Caesar. After several meetings the above-named employees and
Carnes decided to circulate a petition in the plant and secure the signatures of
employees who desired to join with them in a suit against the Respondent to
recover the overtime that was provided for in Executive Order 9240. Due to
the fact that he was permitted to go to all parts of the plant he was thus able
to discuss the petition with numerous employees, and as a result several of them
signed the petition. In addition, numerous employees came into the laboratory
and discussed the petition with Carnes. His activities in this regard were
done on company time and property. The record is clear that Carnes' activity
as regards Executive Order 9240, was telling people about it, and urging them
to sign the petition. Among those he discussed the matter with were Foreman
Joe Losco and Tom Mahalic.
After several signatures were secured on the petition, Carnes went to the
officers of the International Brotherhood of Electrical Workers, AFL, here-
inafter called the AFL, which was and has been the collective. bargaining agent
for the employees in the Respondent's plant for years, and asked them to prose-
cute the suit for overtime against the Respondent. The AFL flatly refused
to do so. Carnes and the others engaged in the venture with him, then decided
to go to the UE who had unsuccessfully attempted to organize the plant for
years, and see if they would assist them in the prosecution of the suit. At
the same time Carnes and the others associated with him agreed to cooperate
with the UE in an organizational drive among the Respondent's employees.
The UE agreed to cooperate with them. Shortly thereafter they retained a
local attorney for this purpose. On February 12, 1947, the attorney, Eugene A:
Caputo, filed a Bill of Complaint in the District Court of the United States for
the Western District of Pennsylvania. On April 10, 1947, the Court dismissed
the case for lack of jurisdiction. •
When the AFL refused to prosecute the suit referred to above, Carnes along
with Duda, Marfia, and Raleigh Caesar became vindictive towards the AFL,
and as indicated above, it was at this time that they went to the UE for assis-
tance. All were members of the AFL at the time. The record shows that
only Marfia and Caesar actually participated in the UE's organizational drive.
Both of them distributed hand bills and engaged in other activities on the UE's
behalf. On May 8, 1947, the AFL demanded the discharge of Marfia, under
the terms of their contract with the Respondent which inter alia contained a
closed-shop provision. The company complied with their request. On June 30,
NATIONAL ELECTRIC PRODUCTS CORPORATION 1541
1947, the UE filed a charge with the Board. The Regional Director of the Sixth
Region issued a complaint against the Respondent.the same day. On July 14
.and 15, 1947, a hearing was held on the matter before Trial Examiner Robert
N. Denham, now General Counsel for the Board. Later the Board issued its
Decision and Order in the matter in which it ordered the reinstatement of Marfia.•`
• On May 12, 1947, the UE filed with the Regional Director of the Sixth Region
.a petition for the certification of representatives among the Respondent's em-
ployees in an alleged appropriate unit. The petition was later withdrawn. The
unit alleged by the UE to be appropriate requested the exclusion of all chemical
.and laboratory workers. Thus Carnes was not eligible for membership in the UE.
. The record is clear that following his confinement to the laboratory on or
about March 1, 1947, Carnes became morose, and his attitude towards the
Respondent became increasingly more vindictive. For the most part he sat
at his desk, smoked innumerable cigarettes, drank copious cups of coffee, and
read magazines, mostly of a technical nature. He only worked when requested
to do so by McCrory. Moreover he would only answer questions addressed
to him by either Biggs or McCrory and would not volunteer suggestions and
the like as he had in the past. The latter testified credibly that not only did
Carnes' attitude towards the Respondent become increasingly worse, but the
quantity of his work decreased. McCrory admitted however that the quality
-of his work continued to be excellent.
. Sometime in the early fall of 1947, Carnes became very nervous. His condi-
tion became increasingly worse until he was forced to ask McCrory for a leave
,of absence in the early part of October 1947. McCrory granted him a leave of
.absence for 2 weeks.
Following Marfia's discharge several of the UE adherents together with mem-
bers of other UE locals established a picket line in protest of the discharge. It is
.significant that Carnes did not respect the picket line, and passed through it
daily to his working place.
As far as the record is concerned Carnes' activities on behalf of the UE con-
sisted for the most part of talking about the organizational drive in connection
with the circulation . of the so-called 9240 petition. In fact, Carnes testified in
substance that the UE drive was secondary as far as he was concerned, and
that the circulation of the 9240 petition was what he was primarily interested
in. In other words the UE drive was used by him as a vehicle to assist in the
circulation of the. petition for overtime pay under the provisions of Executive
-Order 9240.
During his leave of absence Carnes went to see his brother, a doctor and sur-
geon in Lancaster, South Carolina. Carnes told him of his troubles, and his
nervous condition. His brother advised him that there was nothing wrong with
him that "hard work wouldn't cure." He also suggested that Carnes either take
a rest or quit his job in view of all the surrounding circumstances.
2 See National Electric Products Corporation and United Electrical, Radio and Machine
Workers of America (CIO), 80 NLRB 995. At the hearing herein the General Counsel
requested that the undersigned take judicial notice of the Board's Decision and Order in
'the Marfia case, for the purpose of using the Board 's findings therein as a basis for his
findings in the instant case. Of course the undersigned takes judicial notice of the Board's
Decisions and Orders, but not for the purpose requested by the General Counsel. In the
first place the issues in the two cases are entirely different . In the Marfia case the issue
was an illegal discharge under the provisions of a union-shop contract between the
'Respondent and the I. B. E. W., and the Board's Decision was based primarily on its
.holdings in the Rutland Court, Iron Fireman, and Wallace cases . Such an issue is not
involved herein.
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carnes, upon his return to work October 25, 1947, went to McCrory and de-
manded additional time off. McCrory denied his request on the grounds that
work had accumulated during Carnes' absence, and that since he was the only
qualified chemist he could not be spared at the time. As a result of McCrory's.
refusal to grant Carnes' request a violent argument ensued.
According to Carnes he never informed either McCrory or any other member-
of management of his nervous condition. Moreover he did not retain the serv-
ices of a local physician to treat him for his condition. The only medical advice
he received during this period was from his brother whom he called occasionally
on long distance.
Upon Carnes' return to work the same conditions existed in the laboratory,
insofar as his relation with McCrory was concerned. Each continued to ignore
the other and they conversed together only when it was absolutely necessary in
the course and conduct of the laboratory's business.
On or about Wednesday, November 19, 1947, Carnes had a friend and neighbor
call the Respondent's personnel manager and inform him that he was ill and was
unable to come to work. He was absent from work the balance of the week.
In the interim Biggs, Respondent's works manager,, in the course of his daily
rounds through the various departments, noticed Carnes' absence, and queried.
McCrory as to the reason. McCrory advised that Carnes had reported off sick
on November 19, but he could not enlighten Biggs as to the nature of his illness.
or give him an estimate of the time that would elapse before Carnes would be in
a position to return to work. On Monday morning, November 24, Biggs who in
making his rounds observed that Carnes was still absent, instructed Woods,.
the personnel manager, to go to Carnes' home and ascertain his condition and
when he would be able to return to work. Woods followed Biggs' instructions
and went to Carnes' home. Upon his arrival there he found Carnes fully clothed
and preparing to leave the house. Woods questioned Carnes about his illness and
asked him when he expected to return to work. Carnes advised Woods that if he
felt better he might return the latter part of the week, and if not he would when
he felt able to do so. Woods reported his findings to Biggs and McCrory.
On Friday, November 28, 1947, Carnes being still absent, Biggs and McCrory
held a conference in this regard. They reviewed the whole situation and as a
result thereof McCrory suggested that Carnes be discharged forthwith. Biggs
agreed, and instructed McCrory to write Carnes a special delivery letter notify-
ing him of his discharge. The letter is set forth herein below :
Mr. C. C. CARNES,
Rear of #4 Glenwood Drive, Ambridge, Pa.
DEAR Sin : Due to your irregular attendance at work, you are hereby noti-
fied that your employment is terminated as of November 30, 1947, for the
reason you are an undependable employee.
Yours very truly,
R. J. MCOEORy, Chief Chemist.
Prior to the receipt of the above letter Carnes had never been warned by either
McCrory or any other member of management that his absences from work were
placing his job in jeopardy.
Subsequent to his discharge, Carnes filed on at least two occasions, February 14
and February 24, 1948, a grievance with the AFL with respect to his discharge.
The AFL refused to process it. In view of his ultimate findings herein, the
undersigned is of the opinion that Carnes' letter to the AFL dated February 24,
1948, should be set forth in its entirety hereinbelow. The reason for his action
NATIONAL ELECTRIC PRODUCTS CORPORATION - 1543
in this regard is that he is of the opinion that the letter clearly shows the state
of Carnes' mind and in particular his animus towards the Respondent both prior
to and subsequent to his discharge. on November 28, 1947.
To : Local B-1.073 A. F. of L., Ambridge, Pennsylvania.
From : C. C. Carnes, #4 Glenwood Drive, Ambridge, Penna.
Subject: Request for Negotiating Employees' Grievances.
1. On or about March, 1946, Mr. R. J. McCrory, Chief Chemist at National
Electric Products Corporation, Ambridge, Pennsylvania, told me that Mr.
Biggs, Plant Manager had ordered him to inform me if I left the lab with-
out permission I would be terminated instantly. Further that no job was
to be given me unless he (Mr. McCrory) was notified previously; neither was
any person to discuss shop problems or procedure with me.
2. I asked Mr. McCrory why Mr. Biggs had given such an order. Mr.
McCrory replied that he did not know; he was merely following instructions.
I explained to Mr. McCrory that I had asked his permission to take a
thermometer out to Mr. John Keenig-who was the only person with whom
I had talked-but Mr. Biggs had seen me talking to Mr. Keenig in his
office.
3. I worked under these nerve-wrecking conditions until November 28, 1947,
when I received a registered letter signed by Mr. McCrory stating that I was
terminated because of my irregular attendance ; hence was an undependable
employee. At that time, I was suffering from a nervous breakdown and had
properly reported off on sick leave, as records in Mr. McCrory's office should
show.
4. Because my grievance probably will end up in arbitration, there is no
point in me withholding any facts concerning the annoying conditions under
which I worked.
5. Prior to Mr. Biggs' order restricting my work to the lab, my relations
with N. E. P. C. were fairly good, although Mr. McCrory and I never spoke
to each other except on Company business. The immediate cause of our
unfriendliness was that Mr. McCrory asked Mr. Dave Riggle and Mr. Edward
Rafferty to get a carload of defective field wire "by" so shipment could
be made that day. When they told me they had refused, I advised them
to have nothing to do with such methods ; but if Mr. McCrory wanted to
get defective field wire "passed", to let him do it himself. This is exactly
what Mr. McCrory did.
6. Mr. G. L. Warsack and I saw Mr. McCrory make a spurious test in
order to get this carload of defective field wire O. K.'d for shipment. Mr.
Warsack later told Mr. Andrew Duda what happended.
7. As a result of this incident, Mr. McCrory showed a definite animus
toward me; thereafter, we never spoke except on company work.
8. This in no way jeopardized my full Union seniority, nor interfered with
my performing any and all jobs assigned to me.
9. However, when Mr. Biggs gave Mr. McCrory the order limiting my work
and restricting me to the confines of the lab, subject to his permission, I
realized that for all practical purposes I was an employee without a definite
job.
10. The assistant in the lab was an ex-GI with a fine war record ; Mr.
Maupin is taking advantage of the GI college training with a part-time
job. At present, he is in his second year of chemistry, and I taught him
as much chemistry as he should know for the job. I believe eventually
he will become a very good chemist. Meantime, he is an apprentice chemist,
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working half a day, so could not be expected to competently perform my
duties, for I have a B. S. degree from a reputable college and training and
experience for eighteen years with N. E. P. C.
11. Mr. McCrory never gave me any work unless it was obvious that my
co-worker could not do it. In effect, this made me subordinate . This treat-
ment was in force from March 1946 until October 1947.
12. Naturally , under the treatment described , I have a nervous break-
down-like so many other N. E. P. C. employees . the past few years. In
October 1947 I made formal request for a two-week leave of absence after
making sure such sick -leave was to be without pay, it was granted. I went
to my home for rest and treatment , believing my brother to be the best
qualified doctor under the circumstances due to his knowledge of my previous
robust health , his qualified certification to practice , and his excellent rating
during World War II where he was Lt. Commander on active duty.
13. As my personal physician , my brother examined me several times and
told me the only thing for me to do-if such persecution persisted-was to
quit the job and take a complete rest.
14. The day I reported back for work , Mr. McCrory started an argument
over an issue which previously had been settled to our mutual satisfaction.
Frankly, I can't recall what I said to him . . . all I know is that the dis-
cussion was extremely violent.
15. The day before I obtained sick -leave, I was sitting at my desk reading
when Mr. McCrory accosted me and said , "This is the very thing that Mr.
Biggs is complaining about." When he observed that what I was reading
was a new method of Hydrogen Ion Determination-which I thought might
be used to advantage by N. E. P. C.-he realized he'd made a mistake. He
cooled off perceptibly and began to talk in a natural tone of voice. But my
nerves were shot, and although I did not argue with him, I said if Mr.
Biggs objected to the desk , it was all right with me if it were taken out.
Mr. McCrory stated that was not necessary as I still had to write reports.
16. I had reported off on sick leave for several days when Mr. Woods,
the Employment Manager, paid me a visit . He asked what the trouble was,
that so many people at the shop had suffered nervous breakdowns. Then
he inquired if I'd be back to work the next day . I answered that although
I was feeling some better since I had peace and a good night 's rest, so I'd
try to get back the latter part of that week. He asked if I'd seen a local
doctor. I replied that I'd telephoned my brother who was an eminent
physician and was following his advice for complete rest.
17. Mr. Woods knew nothing about the conditions under which I worked.
It did not seem necessary for me to go into detail or to complain.
18. Friday of that week I had decided to go to work to request another
leave of absence . . . but early that morning the termination notice came.
19. Mr. McCrory made the statement to the Union that it was necessary
for him to leave his job and do my work when I was sick . That is not true.
Please inquire whether he had done any of my work the past three months.
20. The exact reason why I was summarily terminated while on sick-leave
is hard to determine , but it may be due to the following incident in part.
21. No doubt Mr. McCrory was criticized severely for permitting out-
siders to loaf in the lab. I admit Management had reason to complain of
the promiscuous loaf and horse-play in the lab at times. This was not
my fault, yet I bore the brunt of Mr . McCrory's criticism.
NATIONAL ELECTRIC PRODUCTS CORPORATION 1545
22. Remember, I was under strict orders not to do any work except the
jobs• specifically assigned by Mr. McCrory.
23. In the discussion which followed Mr. McCrory's criticism of my actions,
I explained it was he who had charge of the lab ; that I had nothing to do
with running it. Then I pointed out that his stenographer spent about six
hours a day loafing and primping in the lab ; that the previous day I had
politely asked her to get away from my desk so that I could write a report.
She refused to leave. After a brief argument I exclaimed he did not know
how to run a lab.
24. In conformity with good Union rules, later I called Mr. George Capp
(our Office Steward) and explained what happened. Mr. Capp conferred
with Mr. McCrory.
25. Shortly thereafter, Mr. Capp told me Mr. McCrory said he would not
permit any loafing to the lab for the future. Which was true.
26. About two weeks later I consulted Mr. Capp relative to another leave
of absence. Mr. Capp informed me that under our Union contract I was
entitled to a leave of absence if Mr. McCrory agreed. I asked for and was
granted a leave of absence by Mr. McCrory.
27. The day I returned, Mr. McCrory began complaining about the' same
issue which Mr. Capp previously had settled to everyone's satisfaction.
I make this point because if Mr. McCrory had me terminated for bringing
in our Union to settle the question of loafing in the lab it is without question
an unfair labor practice.
C. C. CARNES.
Typical of Carnes' general attitude towards the Respondent is also expressed
in his letter to the Respondent's attorney, James Al. Houston, dated December 18,
1947. For convenience it is set forth herein below :
As it appears that Mr. Biggs is the New Company Lawyer, perhaps this
will be of some academic interest to you.
With no animus on my part, I have always thought that Mr. Biggs' im-
petuousness and nerve would be preeminently suitable for a steel mill where
such attributes could conceal an immature mind-in most cases.
Subsequent events will conform these tenants, perhaps.
Yours very truly,
C. C. CARNES.
Carnes having been refused the assistance of the AFL in the processing of his
grievance against the Respondent, he next turned to the Board and filed a charge
with the Regional Director of the Sixth Region. The Regional Director investi-
gated the charge, and dismissed it. Carnes then appealed to the General Counsel.
His appeal was eventually granted and the cause came on for hearing as described
hereinabove.
At the hearing herein both Biggs and McCrory admitted that at the time the
Board investigated the charge herein, they informed the Field Examiner assigned
to the case that the primary cause for Carnes' discharge was absenteeism.
However, at the hearing they both testified that while absenteeism was a factor,
that Carnes' general attitude towards the Respondent and top management
particularly they themselves, were likewise motivating factors.
Concluding Findings
The sole issue involved herein is as follows : Was Carnes discharged by the
Respondent for just cause, or was it because he engaged in union or protected
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted activities? If the latter, the Respondent's conduct is violative of Sec-
tion 8 (a) (1) and (3) of the Act.
The undersigned has found above that Carnes, along with others, initiated the
circulation of a petition among the Respondent's employees for the purpose of
suing the Respondent for overtime pay as provided for in Executive Order 9240,
which they honestly thought they were entitled to. This activity was carried
on during the latter part of December 1946, and ended in the early part of Febru-
ary 1947, at which time a suit was filed against the Respondent in the United
States District Court for Western Pennsylvania. The objective of the suit was,
as indicated above, for the purpose of collecting overtime from the Respondent
under the provisions of Executive Order 9240.
The record clearly shows that Carnes' activity in circulating the petition con-
sisted in the main of "talking it up" among the employees while on his rounds
throughout the plant. As to his activity in the actual circulation of the petition,
the record shows that he secured the signatures of but two employees to the peti-
tion, Maupin and Rafferty, both of whom worked with him in the laboratory.
At the time the petition was being circulated, Carnes discussed the proposed
suit against the Respondent with several foremen whom he had known for some
time, and interested a few of them in this regard. He was careful, however,
to avoid discussing the suit with any employee, including supervisors, whom
he felt he could not trust. Moreover, during this period, it was the custom for
rank-and-file employees to congregate in the laboratory whether on business or
otherwise, and at such times Carnes, along with Rafferty and Maupin, would
discuss the proposed suit with those employees. There is no evidence that Carnes
physically circulated the petition on these occasions. McCrory denied that he
knew of Carnes' activities in regard to the proposed suit until a copy of the
petition was posted on the AFL bulletin board. At that time, McCrory saw
Carnes' name thereon. Although the undersigned has found above that McCrory
was in the main a reliable witness, he does not credit his testimony in this
regard. It must be remembered that at the time the events surrounding the
circulation of the petition occurred, the Respondent's laboratory occupied a
small area, and there were not more than seven or eight employees working
therein. Under such circumstances, knowledge may be imputed to the Respond-
ent. Hence, the undersigned is convinced and finds that the Respondent had
knowledge of Carnes' activities in this regard.
That the circulation of a petition for the purpose of improving working con-
ditions, or as herein for adjustment of a grievance concerning wages or rates
of pay, is a protected concerted activity is axiomatic and goes right to the heart
of Section 7 of the Act.
On the other hand, it must be borne in mind that at the time Carnes and those
associated with him in the circulation of the petition, there was in effect a
valid contract between the Respondent and the AFL, the certified bargaining
representative. Under the terms of the contract, a regular procedure for the
processing of grievances was provided for. This section of the contract, of
course, provided for the orderly adjustment of issues pertaining to wages, hours
of employment, and other conditions of employment, including grievances relative
to overtime. It well may be that under such circumstances the activities of
Carnes and those associated with him in the activities as regards Executive
Order 9240 were not protected concerted activities, particularly in view of
the fact that the certified bargaining agent had flatly refused to acquiesce to
Carnes' demands in this regard. Hence, the conduct of Carnes and others in
this regard would have been tantamount to circumventing the certified bargaining
NATIONAL ELECTRIC PRODUCTS CORPORATION 1547
agent, and thus create a situation that is in contravention to the avowed pur-
poses of the Act as expressed in its preamble. However, since this particular
issue was not raised by any of the parties at the hearing herein or in the plead-
ings, the undersigned is of the opinion that no useful purpose would be served in
commenting at length in this regard. Suffice it to say, however, that it does raise
an interesting point, and one that might well have been litigated herein.
As indicated above, the General Counsel alleges in the complaint that Carnes
was also discriminatorily discharged because of his activities on behalf of the
UE. The record does not sustain this contention, but on the other hand, clearly
shows that Carnes' activities in this regard were personal and that he used
the UE primarily as a vehicle to assist in the prosecution of the suit against the
Respondent to collect overtime pay allegedly due under Executive Order 9240.
Carnes admitted that he was careful to avoid discussing the UE with employees
who were loyal to the AFL. Moreover, he also testified that what he was pri-
marily interested in was the money that might accrue to him by virtue of the
suit against the Respondent. Again, he engaged in no outward manifestation
of loyalty to the UE, but on the contrary, took every possible effort to conceal
his activities in this regard. For example, he did not pass out hand bills during
the UE drive, and furthermore, crossed through the picket line at the time it
was established following Marfia's discharge. Again, he never resigned from
the AFL, and indeed demanded that it process his grievance against the Re-
spondent following his discharge. As a matter of fact, he was not even eligible
for membership in the UE. Under the circumstances described above, the under-
signed is convinced and finds that the General Counsel's contentions that Carnes
was discharged discriminatorily because of his activities on behalf of the U ]E
are without merit.
Having found above as regards Carnes' activities on behalf of the UE, there
remains one other issue and that is, was he discriminatorily discharged because
of his activities as regards the circulation of the petition to recover alleged
overtime due him and others under the provisions of Executive Order 9240?
The undersigned, after carefully considering the entire record in the case and in
particular his observations of Carnes while he was on the witness stand, is
convinced and finds that this contention of the General Counsel is likewise
without merit. The undersigned's finding in this regard is predicated on several
factors, particularly Carnes' outspoken animus towards the Respondent which
had extended over a period of years, and his vindictiveness toward his superiors
as expressed by word and deed over the years. The record clearly shows that
a tense situation existed between Carnes and McCrory from 1941 up until the
date of his (Carnes') discharge on November 28, 1947. This was occasioned
by Carnes' accusation against McCrory as regards the falsification of certain
affidavits which have been described hereinabove. Again in 1945, he accused
one of his superiors of being a saboteur and in addition called him a "saboteur
and a son-of-a-bitch," for which he was summarily discharged. While it is true
he was forgiven for this offense, nevertheless the undersigned is convinced and
finds that regardless of his forgiveness, Carnes was still vindictive against his
superiors and the Respondent in general. Even a most cursory perusal of the
record herein clearly shows Carnes' attitude in this regard. And finally, his
attitude towards McCrory and Biggs after he was forbidden the run of the plant
on or about March 1, 1947, which has been described in detail hereinabove.
As regards his illness and the resulting absenteeism that precipitated his dis-
charge, it must be remembered that Carnes concealed his true condition from the
Respondent; that he did not retain a local practitioner to treat him; and that he
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not personally contact the Respondent at any time during the period of his
absence immediately preceding his discharge. Another factor that has influenced
the undersigned in reaching his decision in this regard is that the petition con-
cerning Executive Order 9240 was circulated during the latter part of 1940, and
the early part of 1947, and suit against the' Respondent was filed, on February'
12, 1947. There is no evidence in the record that either Carnes or any other
employee engaged in activity in this regard thereafter. It was almost a year
after Carnes' activities in this regard that he was discharged. Indeed, the suit'
involving Executive Order 9240 was dismissed by the Court on April 12, 1947,
more than 7 months prior to Carnes' discharge.
Upon the entire record, and in particular the demeanor of Carnes on the
witness stand as described hereinabove, the undersigned is convinced and finds
that Carnes was discharged not for his concerted activities as regards Executive
Order 9240, but because of an accumulation of incidents that made his continued
employment with the Respondent intolerable. The incidents have been described
above ; they will not be reiterated herein. Consequently, the undersigned is con-`
vinced and finds that Claude C. Carnes was discharged for just cause, and not'
because of his activities on behalf of the UE or engaging in concerted activities
as regards the circulation of a' petition to collect alleged overtime due him and
others under Executive Order 9240. Accordingly, the undersigned recommends
that this allegation in the complaint be dismissed in its entirety.
There is no substantial evidence in the record that the Respondent engaged
in any independent violations of Section 8 (a) (1) of the Act. Accordingly,
the undersigned recommends that this allegation in the complaint be likewise.
dismissed.
It must be remembered that the mere discharge of an employee is not an unfair'
labor practice. To discharge him because of union membership or activity is,
of course, an unfair labor practice. An employer may discharge an employee
for any reason, or for no reason at all, and he may do so with immunity as long'
as the discharge is not motivated by union or concerted activities. It is the.
latter which is violative of the Act, not the former. Mere membership or activi-
ties on behalf of a labor organization are not enough to make an employee.
immune from discharge.' It must be alleged and proven by substantial evidence:
that the discharge was motivated by union or concerted activities before the
dischargee is entitled to the protection of,the Act.
In view of the foregoing, the undersigned is convinced and finds that the
Respondent herein did not discharge Claude C. Carnes because of his activities'
on behalf of the UE, and other concerted activities, and hence did not violate
Section 8 (a) (1) and (3) of the Act as alleged in the complaint. Accordingly,'
the undersigned recommends that the complaint herein be dismissed in its entirety..
CONCLUSIONS OF LAw
(1) The operations of the Respondent, National Electric Products Corpora-
tion, constitute and affect trade, traffic, and commerce among the several States,
within the meaning of Section 2 (6) and (7) of the Act.
(2) United Electrical, Radio and Machine Workers of America, CIO, is a,
labor organization within the meaning of Section 2 (5) of the Act.
(3) The Respondent has not engaged in unfair. labor, practices within the'
meaning of Section 8 (a) (1) and (3) of the Act.
3 See Lloyd A. Frey Roofing Company and Oil Workers International Union, CIO, 85 NLRR
1222.
NATIONAL ELECTIC PRODUCTS CORPORATION 1549
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it is
iecommended that the complaint against National Electric Products Corporation,
Ambridge, Pennsylvania, be dismissed in its entirety insofar as it alleges that
the Respondent engaged in unfair labor practices within the meaning of Section
8 (a) (1) and (3) of the Act.
• As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from the date of
service of the order transferring the case to the Board, pursuant to Section 203.45
of said Rules and Regulations, file with the Board, Washington 25, D. C., an
original and six copies of aostatement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and six copies of a brief in support thereof and any party
may, within the same period, file an original and six copies of a brief in support
of the Intermediate Report. Immediately upon the filing of such statement of
exceptions and/or briefs, the party filing the same shall serve a copy thereof
upon each of the other parties. Statements of exceptions and briefs shall
designate by precise citation the portions of the record relied upon and shall be
legibly printed or mimeographed, and if mimeographed shall be double spaced.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85. As further provided in said Sec-
tion 203.46 should any party desire permission to argue orally before the Board,
request therefor must be made in writing to the Board within ten (10) days
from the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 19th day of October 1949.
JAMES A. SHAW,
Trial Examiner.