Newman Machine Co., Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1947

74 N.L.R.B. 220 (N.L.R.B. 1947)

In the Matter of NEWMAN MACHINE COMPANY, INC. and UNITED
STEELWORKERS OF AMERICA, CIO'
Case No. 5-C-2044.-Decided June 19, 19/17
Messrs. Oscar Geltman and Harold Weston, for the Board.
Messrs . C. T. Boyd and W. M. York, of Greensboro , N. C., for the
respondent.
Messrs. A. William Bell and William J. McDade , of Greensboro, N.
C., for the Union.
Mr. Jack J . Mantel, of counsel to the Board.
DECISION
AND
ORDER
On October 21, 1946, Trial Examiner William J. Scott 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 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 did not violate Section 8 (3) of the Act
by discharging 11 of its employees. Thereafter, counsel for the re-
spondent and the Board filed exceptions to the Intermediate Report
and supporting briefs. On May 13, 1947, the Board heard oral argu-
ment at Washington, D. C., in which the respondent participated.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report of the Trial Examiner, the exceptions and briefs, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the modifications
and additions hereinafter set forth.
1. We agree with the Trial Examiner's finding that the respondent
discriminated in respect to the hire and tenure of employment of
Marvin J. Dameron, but we,reverse his finding that the discharge of
John L. Deans was discriminatory. On February 25, 19413, the re-
spondent changed its operation from a 3-shift to a single-shift basis
74 N. L. R. B., No. 45.
220
NEWMAN MACHINE COMPANY, INC. 221
and dismissed Deans along with 11 other employees? The Trial Ex-
aminer concluded that the respondent's decision to revert to the single-
shift mode of operations was motivated by business considerations and
not, as argued by the Board's attorney, by a desire to rid itself of
union members. We agree. The Trial Examiner, nevertheless, found
that Deans was selected for dismissal in the reduction of force because
of his union membership and activity. We cannot accept this con-
clusion. The respondent explained its selection of Deans, as well
as several of the other 11 employees who were dismissed with him,
on the ground of habitual tardiness and absence from work, and the
record shows that Deans, like the others, was an excessive absentee?
Despite the countervailing evidence relied upon by the Trial Ex-
aminer, we are not persuaded, under all the circumstances, that Deans
was selected for discharge -because of his union activities. We shall
dismiss the complaint as to him.
2. Like the Trial Examiner, we find that the respondent instigated
the formation of the Committee, and supported and dominated its
formation and administration, in violation of Section 8 (2) of the
Act.
3. We adopt the Trial Examiner's findings that the respondent's
domination of the Committee and its discrimination against Dameron
constituted interference, restraint, and coercion of its employees, pro-
scribed by Section 8 (1) of the Act. In addition, we find that the re-
spondent violated Section 8 (1) of the Act by the following coercive
statements of its vice-president and manager, Newman, as described
in the Intermediate Report.
On February 20, 1946, at the morning meeting in his office, Newman
I1ot only castigated and ridiculed Dameron and Deans for supporting
the Union, but also declared that he was going to "get tough," that
he would never deal with an "outside union," and that he would close
the shop if the employees persisted in their organizational efforts.
On this same occasion, Newman interrogated employee Foster as to
his' reasons for joining the Union.3 Immediately after Dameron's
discharge on February 20, Newman told Deans, in effect, that his
standing in the plant was jeopardized by his pro-union position, and
1 The Intermediate Report inadvertently states that 17 employees were dismissed on
Februaiy 25, 1946.
a In conti ast, we note that Dameron's rate of absenteeism (that is, the ratio of the num-
ber of working days on which he was absent or tardy to the estimated total number of
working days in his entire period of employment at the respondent's plant) was negligible
compared with that of Deans, Ray, Leonard, and Overman, whose discharge on February
25 was ascribed to absenteeism. Like the Trial Examiner, we are convinced that ab-
senteeism was only a pretext for Dameron's discharge.
J Such interrogation is per se violative of the Act. See H. J. Heinz Company v. N. L. R B ,
311 U. S 514, 518, 520, aff'g 110 F. (2d) 843 (C. C A 6), enf'g 10 N L. R. B 963, N. L.
R B v Norfolk Southern Bus Corporation, 159 F. (2d) 516 (C C. A. 4), enf'g 66 N. L R B
1165, cert. denied, March 31, 1947; Matter of Wadesboro Full-Fashioned Hosiery Mills, -
Incorporated, 72 N. L R B. 1064; Matter of Sewell Manufacturing Company, 72 N L.
R. B. 85.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Deans' March 1 pay increase would be forthcoming only if he
ceased his union activity and supported the Committee.
We also find that on February 25, when employee Foster asked
plant superintendent Purdue the reason for Dameron's discharge,
Purdue assured Foster that he need not fear discharge himself, but
added, "* * * but we are going to fight this thing and don't think
we are not." 4 In its context, this remark, like those of Newman
referred to above, was a clear threat of economic reprisal against
the employees who supported the Union, and was violative of Section
8 (1) of the Act.
ORDER
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, Newman Machine Company,
Inc., Greensboro, North Carolina, and its officers, agents, successors,
and assigns shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Labor-
Management Committee, or with the formation or administration of
any other labor organization of its employees, and from contributing
support to Labor-Management Committee or to any other labor or-
ganization of its employees;
(b) Recognizing Labor-Management Committee as the representa-
tive of any of its employees for the purpose of dealing with the re-
spondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment;
(c) Discouraging membership in United Steelworkers of America,
C. I. 0., or in any other labor organization of its employees, by dis-
charging or refusing to reinstate any of its employees, or in any other
manner discriminating in regard to their hire or tenure of employ-
ment, or any term or condition of their employment;
(d) Interrogating its employees as to their union views or affilia-
tion ;
(e) Threatening to close its plant or employ other economic re-
prisals against its employees if they persist in supporting United
Steelworkers of America, C. I. 0., or any other labor organization of
their own choosing;
(f) 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 United Steelworkers of America,
C. I. 0., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
4 This finding is based upon the uncontradicted testimony of Foster , whom the Trial
Examiner found to be a credible witness.
NEWMAN MACHINE COMPANY, INC. 223
certed activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from and completely disestablish
Labor-Management Committee as the representative of any of its
employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment;
(b) Offer Marvin J. Dameron immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice
to his seniority or other rights and privileges ;
(c) Make whole Marvin J. Dameron for any loss of pay he may
have suffered by reason of the respondent's discrimination against
him, by payment to'him of a sum of money equal to the amount which
he normally would have earned as wages during the period from the
date of his discharge to the date of the respondent's offer of reinstate-
ment, less his net earnings during said period;
(d) Post at its plant at Greensboro, North Carolina, copies of the
notice attached hereto, marked "Appendix A." , Copies of said
notice, to be furnished by the Regional Director for the Fifth Region,
shall, after being duly signed by the respondent's representative, be
posted by the respondent immediately upon receipt thereof and main-
tained by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
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 Fifth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
IT is rUR'THER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the respondent discriminatorily
discharged employees Deaiis, Kirkman, Hutchings, Thornbro, Ray,
Templeton, Jenkins, Dillon, Leonard, Scott, Collins, and Overman,
in violation of Section 8 (3) of the Act.
APPENDIX A
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, we hereby notify our employees that :
I In the event that this order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted in the Notice, before the words "A Decision and Order," the words, "A
Decree of the United States Circuit Court of Appeals Enforcing "
7 5 542 0-4 S-v o l 7 4--16
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE HEREBY DISESTABLISH the Labor-Management Committee
as the representative of any of our employees for the purpose of
dealing with us concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employ-
ment, and we will not recognize it or any successor thereto for
any of the above purposes.
. WE WILL NOT dominate or interfere with the formation or ad-
ministration of any labor organization or contribute financial or
other support to it.
WE WILL OFFER to Marvin J. Dameron immediate and full re-
instatement to his former or substantially equivalent position
without prejudice to any seniority or other rights or privileges
previously enjoyed, and make him whole for any loss of pay
suffered as a result of the discrimination.
WE WILL NOT interrogate our employees as to their union views
or affiliation.
WE WILL NOT threaten to close our plant or employ other eco-
nomic reprisals against our employees if they persist in support-
ing United Steelworkers of America, C. I. 0., or any other labor
organization of their own choosing.
WE WILL NOT in any other manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist United Steelworkers of
America, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection. All' our employees are free to become or
remain members of this union, or any other labor organization. We
will not discriminate in regard to hire or tenure of employment or any
term or condition of employment against any employees because of
membership in or activity on behalf of any such labor organization.
NEWMAN MACHINE COMPANY, INC.,
Employer.
By ---------------------------------------
(Representative ) ( Title)
Dated----------------------------
NOTE : Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
NEWMAN MACHINE COMPANY, INC. 225
INTERMEDIATE REPORT
Messrs. Oscar Geitmaan and Harold Weston, for the Board.
Messrs. C. T Boyd and W. M. York, of Greensboro, N C., for the respondent.
Messrs. A. William Bell and William J. McDade, of Greensboro, N C., for the
'Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Steelworkers of America, CIO,
herein called the Union, the National Labor Relations Board, herein called the
Board, by its Regional Director for the Fifth Region (Baltimore, Maryland),
issued its complaint dated June 26, 1946, against Newman Machine Company,
Inc., herein called the respondent, alleging that the respondent had engaged
and was engaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint
accompanied by notice of hearing thereon were duly served upon the respondent,
Union, and the Labor-Management Committee
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent: (1) since on or about February 1, 1946, vilified, disparaged,
and expressed disapproval of the Union and of affiliated labor organizations,
their leadership and purposes; (2) urged, persuaded, and warned its employees
to refrain from assisting, becoming, or remaining members of the Union, and
warned its employees that they would receive no benefits from the Union or
outside labor organizations; (3) urged and induced its employees to deal directly
with respondent concerning grievances, labor disputes, wages, rates of pay, and
other conditions of work, for the purpose of discouraging union activities among
its employees; (4) threatened employees with loss of employment or other
reprisals if they joined or assisted the Union, and that the plant would be
closed down if the Union's organizational campaign proved successful; (5)
threatened its employees with loss of employment or other reprisals if they
refused to give their support to the Labor-Management Committee; (6) ques-
tioned its employees concerning their membership in or activites on behalf of
the Union ; (7) on or about February 20, 1946, instigated, dominated, and inter-
ered with the formation of the Labor-Management Committee and thereafter
contributed financial and other suport to the said Labor-Management Committee
and has continuously dominated and interfered with the administration of said
Committee; (8) on or about February 22. 1946. discharged Marvin J. Dameron
for the reason that he joined and assisted the Union ; (9) on or about February
25, 1946, discharged or laid off John L. Deans, W. L. Kirkman, Richard D
Hutchings, Robert C. Ray, James L. Thornbro, H 0 Jenkins, H K Dillon, W. M.
Staton, L O. Leonard, John Hamrick, J W. "Scott, J W Collins, R. F. Capps.
A. F. Overman, Thelton Templeton, N. W. Snyder, and Jerry Brown, in order
to discourage and prevent said employees from giving aid or assistance to the
Union; and (10) by the foregoing acts and conduct interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7 of
the Act.
The respondent filed an answer in which it denied generally that it has engaged
in any unfair labor practices.
Pursuant to notice a hearing was held at Greensboro, North Carolina, on
July 15, 16, 17, and 18, 1946, before the undersigned, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the respondent were
represented by counsel and the Union by a representative. All parties par-
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticipated in the hearing Full opportunity to be heard, to examine and cross-
examine witnesses, and to Introduce evidence hearing upon the issues was
afforded all parties. At the conclusion of the hearing, counsel for the Board
moved to dismiss the complaint as to N. W. Snyder, Jerry Brown, R. F. Capps,
W. M Stanton, and John Hamrick. This motion was granted. Board coun-
sel's motion made at the close of the hearing to conform the pleadings to the
proof with respect to formal matters was granted Motion was niade by re-
spondent's counsel at the end of the hearing to dismiss the complaint. Ruling
on this motion was reserved. It is disposed of by the findings and conclusions
hereinafter made Counsel for the Board and the respondent argued orally
upon the record at the close of the hearing. Opportunity was afforded the parties
to file briefs. Briefs have been received from the respondent and the Board.
.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
Newman Machine Company, Inc, a North Carolina corporation, is engaged
at Greensboro, North Carolina, in the manufacture of wood-working machinery.
During the year 1945 the respondent purchased raw materials consisting of steel,
steel castings and other materials, valued in excess of $25,000 of which approxi-
mately 25 percent was transported to its plant in Greensboro from points outside
the State of North Carolina. During the same period, finished products of the
respondent valued in excess of $50,000 were shipped to points outside the State
of North Carolina.
The undersigned finds that the respondent is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization admitting to membership employees of
the respondent.
The Labor-Management Committee, herein called the Committee, is an unaffili-
ated labor organization admitting to membership employees of the respondent.
III THE UNF \IR LABOR PRACTICES
Introduction
The unfair labor practices, hereinafter discussed in detail, occurred within
the framework of these general facts The respondent about November 1, 1945,
in order to increase production, changed its employees from a one shift, 55 hour
week, to three shifts of 40, 45, and 55 hours per week respectively. On about
January 10, 1946, respondent announced to the`eniployees that there was a
production drive on and that if the employees turned out a certain quota, they
would be rewarded by receiving 1 week's paid vacation over the Fourth of July
week and a bonus of one 40-hour week's pay in addition to the 1 week's paid
vacation
The Union commenced an organizational campaign among respondent's em-
ployees sometime in January or the early part of February 19413. On the
morning of February 20, 1946, Newman, vice president and manager of the
respondent, held a meeting in his office with his plant superintendent and four
NEWMAN MACHINE COMPANY, INC. 227
of his machine operators At this meeting among other matters discussed was
the plan for the Committee. Following this morning meeting, which lasted for
several hours, Newman called a mass meeting of his employees for 3:30 p in.
of that day. At this meeting which was addressed first by Newman and then
by Employee Marvin J. Dameron, the members of the Committee were selected.
Dameron, who had been called into Newman's office for the morning session,
received the largest number of votes Rubin C Thomas and John R Short were
the two other employees elected to serve on the Committee Dameron was
discharged February 22, 1946. Thomas and Short are still employed by the
respondent. On February 22, 1946, Newman called another mass meeting of
his employees for 3:30 p. m. to elect a successor on the Committee to fill the
vacancy caused by the discharge of Dalneron. Employee Hick was elected ;
lie is still in the employ of the respondent On February 25, 1946, occurred the
termination of employment of the 17 employees other than Dameron, named in
the complaint as having been discharged or laid off by the respondent in viola-
tion of the Act. (As previously stated a motion to dismiss the complaint as
to 5 of these employees has been granted ) Also on February 25, 1946, the re-
spondent's employees were returned to a one day shift, 55 hour week.
A Iinteifer•ence, icstiunit . and coercion-; don'triation and support of the
Caninlittee
1. Meeting in the office of Newman on February 20, 1946
The meeting commenced about 8 a in and lasted until around noon. In at-
tendance were Newman and Perdue, plant superintendent, and employees Dam-
eron, Deans, Foster, and Simpson -The employees had been told by Perdue to
attend Newman gave substantially the following reasons for calling the
meeting. that there was dissatisfaction among the employees concerning their
working conditions, and the management was concerned about production; that
the above-nailed employees were called because they operated the most impor-
tant tools from a production standpoint ' Newman gave as a reason why
Daniel on and Deans were present : that lie had heard they were creating dis-
satisfaction among the employees '
Deans testified that when Dameron and himself entered the meeting they were
addressed by Newman, in effect, as follows :
What ate you two fellows trying to do, cram a Union clown my throat?
The following is Foster's testimony as to what took place at the meeting • '
Mr Newman was sitting at his desk. He said '*Have a seat". I thought
maybe I was to be the only one A little later I saw Bill Simpson come in.
A little later Lewis Perdue, Mr Dameron, and Mr. Deans came I don't
remember who was first, but they all carne in and I had an idea what it was
all about, but I was a little bit scared and nervous. It started out to be a
battle royal, it looked like. Mr Newnan was very furious, talking very fast
1 D.imeron operated an external grinder. Deans an internal grinder, Foster a turret lathe.
and Simpson an engine lathe. The entire production depended greatly upon the output
of these machines
Newman testified that he heard Dameron was trying to create dissatisfaction in the
shop and that Dameron lijad said the shop was not being kept clean, cylinders were being
left on the floor. Newman also testified that he had heard, the previous night, a report
that Deans was telling the men that it was against the law for one employee to run more
than one machine. (There were four or five employees, according to Newman, who have
ran more than erne machine )
i Foster is still in the employ of the respondent . He impressed the undersigned as
being a conscientious and credible witness.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and sharp. He was looking at Dameron and Deans He didn't give much
attention to us [Foster and Simpson]. He didn't loop, my way much and
he says, "I guess you men know why you are in here." Nobody said any-
thing. We all looked at each other. He [Newman] said, "I didn't think
you boys would do as dirty a trick, especially you Dameron. You learned
your apprenticeship here." He looked over to me and Simpson. He says
"Foster, I want you to know you and Simpson are not in on this, you wouldn't
do as dirty a trick to Newman. You are not guilty. You are in here solely
as witnesses." * * * It went from one thing to another like that. I
can't remember all of it, what all the length of the discussion was, but the
main thing was the union. He said he would not do business with an out-
side union. He rubbed this down our throats until'I hardly could not take
it, you are all "saps" and "suckers", we are all "saps" and "suckers" * *
Finally he seen I was determined to say something and he says, "Go ahead,
Foster, you can talk." I says, "Mr. Newman, I appreciate your bragging on
me, on my work and all, but I don't want to feel like an angel sprouting
wings." I says, "I am not " I says, "I am not the head man, but I am as
guilty as the others". Pretty close to that is what I said * * * When I
told him this, he says to me, "You belong to the union?" He says, "Foster,
you did join?" I said, "Yes, sir." He said, "I didn't know that." He said,
"Why do you want a union?" I explained the reason.
Dameron's testimony was substantially in accord with Deans'. Other than
telling Newman that he had signed a card, Simpson took no active part in the
meeting. The undersigned credits the mutually corroborative testimony of
Deans, Foster, and Dameron.
According to the credited testimony of Dameron, Newman accused him of
trying to run the respondent's business and stated "that if they persisted in
forming a Union he [Newman] would close the shop." The witnesses are in
disagreement as to who first suggested the formation of the Committee. Dameron
testified that Newman proposed the Committee and his testimony is supported by
that of Deans and Foster. The respondent contended that it was Dameron who
suggested the formation of the Committee.'
Dameron testified in that respect as follows
Q. You say that Mr. Newman proposed a committee . Exactly how was that pro-
posal made, can you recall?
A. Well, he [Newman] said, "Now, I am just going to get tough with you right
now." He said, "I am just telling you right straight , I am not going to do business
with an outside union " "But," he says, "If you boys want to have a little shop com-
mittee, labor management committee * * * I think we can arrange that and
work out, work very peacefully together." "But," he said, "I absolutely refuse to
do business with an outside union." "And," he says, "Why it is to your advantage
to form or help me form a workable labor management committee, because * * *
you won't be having to pay dues to an outside union."
Q. Was anything said about meeting later in the day, about a meeting that was to
take place later in the day?
A Yes sir, he [Newman] said "I am going to call every man I got in here down
before the time clock at 3:30 this afternoon." He said, "We are going to get this
thing settled once and for all."
Perdue testified concerning the same matter as follows :
Q Mr. Perdue, will you please state whether or not you have a positive recollection
as to who suggested the formation of a labor management or grievance committee at
the meeting in Mr Newman's office on Februaiy 201
A. That came up through discussion. We were talking about dissatisfaction in
the shop, the various conditions Mr. Newman asked the question, how are these
things handled in other shops. Mr. Dameron spoke, he knew of one shop that had a
labor management committee and he explained the functions of the committee. Out
of their discussion there, the decision to form a labor management committee came
about.
NEWMAN MACHINE COMPANY, INC. 229
Regardless of who suggested the formation of the Committee the record clearly
shows that Newman favored the formation of the Committee, and that he took
immediate steps to put it in effect. According to the testimony of Dameron,
which the undersigned credits, in view of the events that followed, Newman
demanded that the four employees present give their support to the Committee.'
2. Mass meeting of the employees in the plant on February 20, 1940
The employees were called into this meeting at the direction of Newman.
All' of the employees, including supervisors, were present. Two of Newman's
stenographers were present to take notes of the meeting. These notes were
destroyed.' Newman addressed the meeting, explaining that the purpose of
the Committee was to handle grievances. He told the employees, however, that
they were free to join the union. After completing his address, Newman intro-
duced Dameron who was standing beside him. Dameron testified in substance
that he told the employees he had agreed to accept the Committee as he felt it
was the best that could be obtained under the circumstances but that if it didn't
prove a success he would use his efforts towards bringing the Union into the
plant. The undersigned credits Dameron's testimony which is corroborated by
that of Foster and Deans'
After Dameron had completed his talk, Newman again addressed the employees
telling them they were free to select their representatives. Newman testified
the meeting lasted about 15 minutes. Newman and the supervisors withdrew
from the meeting before the balloting began. Pencils and ballots were furnished
by the respondent. Employees voted first on the formation of the Committee
and then for the Committee members. The ballots were carried by Dameron and
Hiatt, an employee from the shipping department, to the private office of New-
man where they were counted in the presence of Newman, Perdue, and Dameron.
Employees Dameron, Shoit, and Thomas were elected to serve on the Committee
as the representatives of the employees, Dameron receiving the largest vote.
' Dameron testified
* * * so one by one he [Newman] weeded out the others, * * * until he got
around to me, the fourth member that was these in the conference. Well, I had to
say "yes" or just pick up and get out, so I finally agreed And then I asked him for
an opportunity to speak to the men when we got down at this mass meeting that he
said he Was going to call in front of the clock. He said "All right, you have that
privi]eee."
And I told him "I have signed several cards and those fellows will say you went
in the office and you got a dune raise and now you are selling us down the river or
letting us down " So I told him "I am going to speak to them and tell them that this
labor management committee means accept that or we will all be without a job
because you will close the plant and that we have accepted it until July 4." See
footnote 7, antra.
6 Newman 's testimony concerning the destruction'of the notes made by the stenographers
is as follows :
Q Was a record made of what was said at that meeting'
A. I had two of our stenographers to come down to try to make a record of it and
didn't get it. They didn't even get enough of it, the talking was done too fast and
not done before an experienced stenographer, to the point where the record was of
no value and it was destroyed
With respect to the speech made by Dameron to the employees at this meeting Foster
testified as follows
Q What was said by Mr Dameron?
A Mr. Dameron made a little talk, didn't last very long and he said, "Fellow, I
have tentatively and conditionally agreed to this little committee that Air Newman
has formed But," he says, "I want to say this, that if it doesn't work after the
fourth, * * * then I am going to push with all my strength and encourage [sic]
and energy for this outside CIO union," * * * "I mean I am going to fight
for it."
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 Mass meeting in the plant on February 22, 1946
Dameron was discharged about 2.15 p in . February 22, 19468 At the direc-
tion of Newman the employees were assembled about 3 p in. of that clay in the
plant Newman made an address informing the employees that Dameron had
been discharged and instructed the employees to elect a member to serve on the
Connnittee in Dameron ' s Place . Newman told the employees that Dameron
had received so many votes it gave him the "big head." Newman advised the
employees to select a man with some sense 0 Two stenographers were at this
meeting for the purpose of taking notes According to Newman , these notes
also were destroyed, fot the same reason as the notes of the mass meeting on
February 2080 After his talk , Newman withdrew. According to the credited
testimony of Foster , some of the employees "appeared to be disgusted" and lie
himself did not vote.
4. Activities of the Committee
Only two meetings have been held by the Committee and both were instigated
by Newman The first meeting took place about 2 weeks after the election of
the Committee It was held in a private room of a local restaurant Thomas
and Short of the Committee and Newman and Perdue for management, were
present Newman paid for the dinners Subjects discussed pertained to the
work of the shop being held up by the drill presses and some grievances pertain-
ing to employees Bryson and Howertson The second meeting was held about
2 weeks later in Newman's private office This was attended by Committee
members Short, Thomas, Hicks, and Newman and Perdue. Newman and Perdue
had a grievance against Employee Shelton and complained to the Committee
that he was "laying out" on Saturday and -Monday morning; they requested
the Committee to explain to Shelton to be on the job or take one less important.
One grievance, a complaint of John Castle. concerning some shavings falling
about his machine, was discussed Thomas requested Newman to post the
results of the meeting on the bulletin board as the employees had been asking
questions Newman agreed to do so No further Committee meetings have
been held The Committee never met with the employees or collected dues.
5 Summary and conclusions as to the Committee
Although Newman denied that lie first suggested the formation of the Com-
mittee, he participated therein and at all times was a dominant influence in
the affairs of the Committee The plans for its cieation were formulated in
his office on the morning of February 20, 1946. The mass meeting of eni-
ployees that afternoon in the plant was arranged by hnn The employees
were notified to attend by the respondent's supervisors Newman opened the
meeting with an address and explained the purpose of the Commit tee He had
'The circumstances surrounding the discharge of Dameron are discussed in a later
section of this report
0 This appears fi om the following credited testimony of Foster
Q Did work stop"
A Yes, sir , all over the plant.
Q. Who spoke'
A Mr Newman
Q Do ion remember what lie first said 9
A * * * "Men," lie said , " I regret to tell you that we are called together here
for you to elect a new member * * * It became necessarv to fire the former
member , * * * I mean Mr Dameron * * * He got so many votes it gave
him the big head * * * This time select a man with some sense * * * I
don't know why we can ' t have a little union , a little company union of our own
10 See footnote 6, supra.
NEWMAN MACI-lINE COMPANY, INC. 231
two stenographers present to take notes His supervisois were in attendance.
Ballots and pencils for the balloting which followed were furnished by the
respondent . At Newman ' s instructions , after the election , the ballets were
carried to his office for counting Following his dischaige of Dameron, lie
again had the employees assembled in the plant and instructed them to elect
a successor to take Dameron's place on the Committee Stenographers were
again present to take notes The were fact that the supervisors were with-
drawn and the employees permitted to choose the members of the Committee
in the absence of management representatives , does not absolve Newman of
the responsibility of having brought the Committee into existence or of having
in effect directed its formation and administration The olily meetings held
by the Committee were instigated by Newman Because of all these circum-
stances the undersigned finds the employees did not have the complete freedom
of choice as to their bargaining represeutatives which the Act provides for
them "
The undersigned further finds that Newman in instigating the formation of
the Committee was motivated by his antipathy towards the Union as evidenced
in his statements to the employees in his office on February 20
In view of the foregoing and upon the entire recoi d, the undersigned finds
that the respondent dominated , interfered with, and contributed suppoi t to the
formation and administration of the Committee , and thereby interfered with,
restrained , and coerced its employees in the exercise of the lights guaranteed
in Section 7 of the Act.
B The disc)immatorl/ dischalgc of illaivtmt,.J Damcroii,
Dameron was first employed by the respondent in 1939 as an apprentice.
His starting wage was 27 cents an horn He was making around 60 cents
an hour in 1041 when lie left the respondent to take a job at the shipyards
in Newport News, Virginia, where lie remained until it mass lay-off occurred
o there in September 1945 He returned in September 1945 to the respondent's
plant He was hired to operate the external precision grinder, at the top rate
pay of $1 an hour Sometime in January 1946, lie met Sandetur, Regional
Supervisor for the Union, and on February 4, he signed a membership appli-
cation card Thereafter he was very active in behalf of the-Union At the
meeting in Newman's office February 20, 1946 he frankly displayed his preference
for the Union 12 His talk to the mass meeting of employees that afternoon
it N L R B v Linn.-Belt Co, 311 U S 584, 58S
12 Perdue testified in that respect as follows
Q Was a union mentioned at all in the conference held on the morning of Febunary
20, 1946?
A. It was
Q. What was said'i
A Mr Dameron brought up the fact that they were tiling to organize a CIO
union there
s • t s • s s
Q Well, what else did Dameron say about the union at that meeting, exactly what
else did he say
z s s s a s •
A He was truing to sav he wanted to bring a CIO union into the plant . He
thought we ought to have a CIO union there believed in it llr Deans did He
talked along about what the union could do organizing in the plant
Q Did he say lie and Deans were organizing a CIO union in the plant'
A He didn't say that He said they were signing up uienibeis for the CIO union
He didn't say he was an organizer
Q Did he say Deans was also signing up members'
A He said that he was He didn't sav Deans was He and Deans were together
and they talked about the union They were both in there talking for it, telling us
what a wonderful thing it was and that he was taking memberships of the union
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also clearly shows that he agreed to make a test trial of the Committee only
because he felt it was the best that could be obtained at that time's His dis-
charge took place at the plant about 2: 15 p. in February 22, 1946
Respondent contends that it discharged Dameron for (1) insubordination and
(2) absenteeism. As to Dameron's alleged insubordination, Perdue testified
that about 2 weeks prior to the discharge, he warned Dameron about leaving
his machine; that again on the morning of his discharge, because Dameron
left his machine and wandered over the shop, he was compelled on two occasions
to again warn him to remain at his machine ; that after the last warning, having
noticed Dameron again away from his machine, he walked over to the machine
and told him, "That grinding must be done ; If you can't do it, I am going to
have to put somebody else here . . . I hate to fire you" : that Dameron replied,
"You can't fire me"; that he [Perdue] reported this to Newman who thereupon
told him, "You can't have any man -out there who will tell you you can't fire
him" ; that Dameron was thereupon discharged"
Dameron testified that he was given only one warning by Perdue and that
immediately thereafter he went to his machine and refused to have any conver-
sation with other employees since he knew that he was likely to be fired He
admitted that on both February 21 and 22 he spent some time away from his
machine talking to employees but claimed it was due to the fact that various
employees desired to discuss their grievances with him 35 He also testified that
See footnote 7, supra.
Perdue testified as to the events leading up to the discharge of Dameron as follows :
Q. There has been testimony in the hearing with reference to warnings given to
Mr. Dameron, by you. Will you please state what warnings. if any, you gave him.
when they were made, if they were made, and what was the nature of the warnings?
A. I would say about two weeks prior to our conference in Mr Newman's office pro-
duction was getting mighty slow, grinding particularly I asked Mr Dameron to come
into my office . . . I said, "Jack, I want to talk to you about grinding. You are
not doing enough work. I did not call you here to fuss with you, I called you to talk
about grinding."
•
s r a w o r n
Mr. Dameron left in good spirits. He told me he would go out there and show me he
could do more grinding than any man had
» t s n s e a
I noticed he didn't get much done on Thursday [February 21] I thought probably
he would settle down by Friday, but he didn't. He spent considerable time wandering
around all over the shop, engaging in conversation away from the machine The
machine was not running, it was not producing I saw Mr Dameron at one place
early in the morning He was away from his machine I says, "Jack we have to
have this grinding done . . I hate to do it, but if you can't get this grinding done,
I will have to get somebody else to do it " That was all He went back to the machine.
I would say at eleven o'clock that morning, conditions did not improve I noticed
Jack away from the machine I went over to the machine. I says, "Jack, I thought
I wouldn't have to warn you again This grinding has got to be done If you can't
do it, I am going to have to put somebody else here " I says, "I hate to fire you."
He says, "You can't fire me" I says, "Yes, I can, let us forget that stuff, let me
see if you can get some grinding done " I reported that to Mr Newman Mr New-
man said, "You can't have any man out there that will tell you you can't fire him,"
and he was fired
Dameron's testimony concerning the events surrounding his discharge is as follows :
Q After the election [of the Committee] did any of the employees come to you and
ask you to handle grievances?
A. Yes, sir, these were several of those.
$ 3 t • i 4 i
Q Did you get any on the morning of February 22 and can you tell anything con-
cerning the method of your getting those grievances'+
A. Yes, sir. About 9 30 1 believe it is, the canteen upstairs was allowed to open
NEWMAN MACHINE COMPANY, INC. 233
his work on February 22 was extraordinarily heavy and that he was compli-
mented on his production on that date by one of respondent's foremen 1B This
testimony was not denied Dameron denied that he told Perdue that he
[Dameron] could not be discharged. The undersigned credits his denial.
The respondent made no denial of Dameron's testimony that his conversations
on February 21 and 22 were with employees concerning their grievances, and
the undersigned credits Dameron's testimony in that respect" The respondent
did not attempt to disprove, by its records or otherwise, Dameron's testimony
that on the day of his discharge, his work was unusually heavy and that he pro-
?uced more than a normal amount of work on that date 18 The undersigned con-
cludes that Dameron's production on the date of his discharge was satisfactory.
The undersigned discredits Perdue's testimony that he gave Dameron a second
warning on February 22 about remaining away from his machine. The under-
signed finds from the evidence that there is no rule against the employees talking
in the plant, and it is reasonable to assume that the employees, following the
mass-meeting of February 20, would discuss their grievances with Dameron. The
undersigned believes Dameron's testimony, however, that following Perdue's
first warning, he did not leave his machine to participate in those discussions.
His production on the date of his discharge negatives the respondent's conten-
tion that he was excessively absent from his machine on that date.
for a few minutes so that if we wished to have milk or anything, we could go up
and get it and come back.
s r * w * a
*On the way up I was approached by one of the men who had been discharged, .
he had a grievance. He was in the act of telling me what it was I was trying to
explain to him that I couldn't do anything, that that wasn't the proper method of
handling it . . . While I was in the act of describing this particular routine to him,
why Mr. Perdue noticed me and told me that if I did not quit talking on the job, I
was going to get fired. . . . I said "You don't generally give a man any warning,
you just give him his pay check and a slip in it telling him not to come back." He
[Perdue] says, "Nevertheless you have that warning." I said "Yes, I have that."
I turned right away and I went to work . . I stayed at work regularly from
then until the time I was discharged . On numerous occasions after that, people
would pass by my machine, tag me on the back and say, "Listen, I want you to do so
and so " I kept right at work and I said, "I cannot talk, I have been warned not to
talk because if I am caught talking to you or lose time from my job, I am going to be
fired."
16 Dameron's undeiiied and credited testimony concerning his work on February 22,
1946, is as follows*
Q How much work had you turned out that day before you were fired
A I knew the pressure was on, sir and I know that I was doing an extraordinary
amount of work and I can prove that.
Q. Well, when you say "extraordinary" how do you mean, can you measure it?
A Well, yes. Several people in that plant have been employed on that same
machine, although they might not have been in the habit of working as fast as I did,
but they told me that the average time on that particular piece of work that I was
doing, which happened to be feed rollers for No 500 Planer Matchers was around
50 minutes to an hour. That morning I had nine finished and a tenth hanging in
the machine.
Q At what tine?
A By the time I was fired, discharged. [He was discharged about 2 15 p m.]
Q. Had you spoken to or did you speak to any supervisors concerning your work
that day?
A. Yes, yes I did Mr. Spencer was a foreman. I spoke to him. I said, "I have
been told that I am liable to be fired . . Do you think that is a good mornings
work?" He said, "I certainly do . . . I think that is excellent . . . Also your
work has been satisfactory all along. . . . I haven't any fault to find with you."
" See footnote 15, supra.
i" See footnote 16, supra.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support of its alleged second reason for discharging Dameron, the respon-
dent showed by its records, and it was not disputed by Dameron, that his
absenteeism record between the time of his employment in September 1945 and
his discharge was as follows:
October 11 he was out 10 hours
October 15 he was out 10 hours
October 26 he was out 10 hours
November 13 he was out 1/ hour
November 16 lie was out 31/_2 hours
November 19 he was out 10 hours
November 22 he was out 10-hours
December 13 he was out 2 hours
December 20 entire week 55 hours
December 27 he was out 21/2 hours
December 31 lie was out 2 hours
January 16 (1946) he was out 2 hours
January 17 he was out 1 hour
January 18 he was out 31/ hours
January 30 he was out 2 hours
Febi nary 1 be was out 10 hours
February 2 he was out 5 hours
February 15 he was out 5 hours
Dameron, while not disputing his absenteeism record as produced by the re-
spondent, gave credible explanations concerning his absences and testified
without contradiction that all of his absences were either authorized or "ex-
cused" 19 That this was true is convincingly evidenced by the fact that at no
time prior to his discharge was he either disciplined or warned on account of
his absences As a matter of fact, Newman's actions on February 20 clearly
indicate that he regarded Dameron as a permanent employee and relied on him
to persuade the employees generally to favor the Committee. Dameron's record
shows no absenteeism during the week prior to his discharge Added to these
factors is the undi,puted fact that absenteeism was general among the respond-
ent's employees.
Conclusions
The undersigned has found that Newman was opposed to the Union and spon-
sored the formation of the Committee for the purpose of blocking the Union's
attempt to organize the respondent ' s plant. It is clear that Newman had
knowledge that Dameron was the leading advocate among the employees in be-
half of the Union While Dameron agreed to the formation of the Committee,
he made no attempt to conceal his scepticism that employee benefits would be
derived from the Committee and told the employees in the presence of Newman
that if the Committee did not succeed lie would throw all his strength to the
Union.20 It was clear to Newman , therefore , that in becoming associated with
10 For example, Dameron testified concerning 1 week's absence as follows
Q Excused, in what way'i
A Well, as soon as I could get to where I could move around, why I went up to
the plant and told then, "I have been sick, still am not able to work, practically every-
body in the house ivheie I Lie is sick and I have to be up and around to kind of help
look after them They said. That is all right, go ahead and just as soon as you can
get to where you can turn loose and come back to work, -,why come on back '
The respondent made no denial as to the foregoing testimony and it is credited by the
undersigned
11 See footnote 7, supra
NEWMAN MACHINE COMPANY, INC. 235
the Committee, Dameron had not renounced his militancy in behalf of self-organi-
zation among the employees. Two days later he was discharged
In view of the entire circumstances, and particularly the timing of the dis-
charge, the undersigned is unable to credit the testimony of Perdue and Newman
that Dameron was discharged because of absenteeism and insubordination.
Admittedly absenteeism was general among the respondent's employees and
employees other than Dameron were shown to have been absent as much or more
than Dameron but were not discharged until the respondent reduced its force
through the elimination of work shifts 221 That Dameron left his machine at times
on the clay prior to his discharge and also on the day of his discharge is admitted
by him, but the record shows that his conversations on those dates, were held
to discuss, in his capacity as a member of the Committee, grievances which the
employees might wish to refer to the Committee, and when warned by Perdue
that he would be discharged if lie continued this practice during working hours,
he-immediately desisted.'-' The undersigned does not credit Perdue's testimony
that Dameron ignored this will ning or that when warned a second time Dameron
replied, "You can't fire me." There is nothing in the record outside of this inci-
dent which would indicate that Dameron was insubordinate in his attitude or
refused to obey instructions given him by his supervisors.23 The record shows
Damermi was a highly skilled workman, filled one of the key jobs in respondent's
plant, and received the highest rate of pay among respondent's employees That
lie was also popular and influential among the employees is shown by the fact
that in the election or employees to the Committee, he received the highest num-
ber of votes. The undersigned is convinced that the reasons for his discharge
advanced by the respondent were pretexts and that the actual motive for his dis-
charge lay in respondent's vehement opposition to the Union and its realization
that Dameron, as a militant and popular leader among the employees, repre-
sented a continuing threat of unionization.
Accordingly, and upon the entire record, the undersigned finds that Dameron's
discharge on February 22, 1940, was an integral part of respondent's plan to
thwart genuine self-organization among the employees and was effectuated be-
cause of Dameron's union membership and activity on behalf of the Union. By
the said discharge of Dameron , the respondent discriminated in his hire and
tenure of employment and discouraged membership in the Union, thereby inter-
fering with, restraining, and coercing its employees in the exercise of the rights
guaranteed in -Section 7 of the Act.
C. The Fcbtuaitj 25, 19116, reduction of ivoi b, shifts
As preuously suited, the respondent on or about November 1 , 1945 , in order to
Increase production , changed from a one shift, 55 hour week , to three shifts of
21 Newman, testifying from the records, cited the absenteeism of all the employees named
in the Board's complaint When asked to produce absenteeism records of a representative
list of employees not named in the complaint, the respondent stated that this would requite
a week or more and no such records were produced There is therefore no basis, except
Newman's unsupported testimony, for a comparison between the absenteeism of the dis-
charged employees and of other employees generally.
22 This finding is based on the credited testimony of Dameron, that he received only one
warning from Perdue and thereafter remained at his machine refusing to discuss giievances
with employees for fear of being discharged See footnote 15, supra
23 It IS significant that the respondent did not cite any other alleged act of insubordi-
nation during Dameron's considerable length of employment.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
40, 45, and 55 hours a week, respectively." At that time there were approxi-
mately 100 employees and this number was increased to about 116 by February
25, 1946. On this latter date the respondent returned to the single shift and,
without prior notice or warning, discharged 17 employees. The Board alleges
that 12 of these discharges were discriminatory. The respondent's position is
that it made the reduction in shifts for business reasons solely and that under
the single shift which resulted there was a surplus of employees to the extent
that it was necessary to dismiss some 17 employees.
Newman testified that the change from a one to a three shift operation in
November 1945, created dissatisfaction among the employees, particularly among
those employees whose "take home" pay was reduced because of a reduction in
the hours of their work week Certain wage increases were granted those whose
hours were reduced and this in turn created dissatisfaction among the group
which remained on a 55 hour week and who were not receiving as high an
hourly rate as employees on the other shifts 2" According to the respondent's
witnesses, production fell off under the multiple shift operation and by the
early part of February 1946, was drastically lower than it had been prior to
the change to the multiple shift.20 These same witnesses testified without con-
tradiction that after the return to the single on February 25, 1946, production
reached new high levels and has been greater than production attained under
the multiple shift 2s
That there was a considerable amount of dissatisfaction among the employees
under the multiple shift operation is clear from the testimony of Board as well
as respondent witnesses, and the undersigned finds that widespread dissatis-
faction did exist and was naturally the normal concern of the respondent No
substantial and credible evidence was adduced to contradict the respondent's
contention, supported by oral testimony, that production suffered under the
multiple shift arrangement The undersigned is convinced and finds that the
respondent may very well have concluded, out of business considerations solely,
that a return to the single shift mode of operation was desirable and imperative-
While the timing and manner of effectuating this change arouse suspicions, of
-i Newman testified that the change to the multiple shift was made when the respondent
was requested by a government agency to try to increase its production due to the general
scarcity of housing Newman referred to the change as an "experiment " and testified
that certain departments were never converted to the multiple shift plan . Perdue testified
that the change was "gradual"
21 Newman testified that nien who were placed on the 45 hour shift were given an hourly
wage increase of 10 peieent, whereas those who were transferred to the 40 hour or night
shift, were given a raise of 15 percent "The men that were working 55 hours a week
were very dissatisfied ," Newman testified , "because the men that were making 40 and 45
hours a week were getting a higher hourly rate, even though they still weren ' t taking
home-even though the men making 55 hours a week were still taking home more money
than the 40 and 45 hour shifts. The men on the 40 hour shift were very dissatisfied
because they didn't have the hours the other men had * * * The men on the 45
hour shift were dissatisfied for two reasons. They didn 't have quite as high a rate as the
men on the 40 hour shift and they didn ' t have as many hours as the men on the 55 hour
shift "
20 Perdue testified , "Production picked up at first , for the first few weeks particularly.
It began to drop off, got to the point where we wasn't getting the production out of two
shifts we previously got out of one. Through January and the early part of February, pro-
duction was just gradually going down , lower than at any time since I have been with the
company."
27 Perdue testified , "Production began to pickup in the early days of March . By the end
of March our shop was producing more per man than at any time in its history."
NEWMAN MACHINE COMPANY, INC. 237
discriminatory motive,2B the undersigned is not persuaded that it is established
by a preponderance of evidence that respondent's decision to revert to the single
shift mode of operations was in and of itself motivated by other than non-
discriminatory business considerations This finding, however, does not pre-
clude the possibility that selection of men to be discharged pursuant to the
reduction in work shifts may have been made on a discriminatory basis. A con-
sideration of this problem follows.
D. The discriminatory discharge of John L Deans
On the afternoon of February 23, 1946, Perdue was called to Newman's office
and advised by Newman that a decision had been made to return to a single shift
mode of production. Perdue testified that Newman advised him :
We have decided to lay off our night shift, put all men on a 55 hour a week,
on an equal basis . We have asked you to come over here and help us pick
out the men that should be dismissed. It is going to leave us a surplus of
men.
Pursuant to these instructions, Perdue prepared a discharge list and the em-
ployees selected for dismissal were notified of their respective discharges on
the following Monday, February 25. In general, they appear to have been selected
without regard to the work shift on which they were employed. Perdue testified
that the discharges were based on records of efficiency, period of service, and
absenteeism. Newman testified, "We decided to keep our best and most efficient
employees regardless of the shift on which they worked or seniority either."
Among those discharged was John L. Deans.
Deans entered the employ of the respondent in August 1945. He operated
the internal grinding machine, considered by the respondent as one of the four
key machines in the plant His starting salary was 75 cents per hour and he
was receiving 95 cents an hour when his employment was terminated. He joined
the Union on February 4, 1946, and with the exception of Dameron was the
most active of the employees in his endeavor to organize the plant. Newman
gave various reasons during his direct and cross- examinations as to why Deans
was present at the meeting in his office the morning of February 20, 1946 2°
From the record the undersigned concludes and finds that Newman had Deans
come to his office because together with Dameron he had been engaging in union
activity at the plant. From this meeting it is clear that Newman considered
Deans to be a leader in the Union's efforts to organize the plant.
Respondent asserts Deans' absenteeism was a major factor in his discharge.
Respondent's record of Deans' absenteeism was not disputed and showed that
Deans had been absent on 85 days for periods varying from 15 minutes to a full
day. About one half of these absences were for 1 hour or less. Deans testi-
fied, and it was not specifically denied by the respondent , that his absences were
either excused or condoned As previously observed, absenteeism was general
in the respondent's plant, and whereas Deans' may have been considered more
serious than others because of the key job which he filled, at no time prior to his
21 The decision to return to the single shift mode of operation was made on the after.
noon of February 23, a Saturday , and only one day following Dameron's discriminatory
discharge . It was made without warning or intimation to the employees Perdue testified
that the decision was made by the officers of the respondent and that he was not con-
sulted , although he was called in on the afternoon of February 23 and advised that it
had been made . Newman and Stout, the respondent 's personnel man, were present in
Newman ' s office when Perdue arrived, and, later, the respondent 's attorney was present.
11 See footnotes 1 and 2, supra.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge was he disciplined because of absenteeism or warned that it would be
considered a basis for his discharge
While it does not appear that seniority was a controlling factor in deter-
muling the order of discharges pursuant to the return to a single shift, Perdue
testified that it was one of the elements that he considered in making up the
discharge list The record shows that Deans commenced to operate his machine
before the multiple shift was introduced into the plant in November 1945. Ad-
iuittedly, subsequent to that date some IT employees were added to the respon-
dent's pay roll. It seems clear that from a seniority standpoint Deans would
have been continued on his machine when the respondent decided to return to
the single shift, particularly since his was one of four key machines upon which
the entire production depended, and normally nien of lesser seniority would
have been laid off first
Finally, the record indicates that Deans' work was efficient He started on
a 55 hour week shift and because of his difficulty in reaching the plant on time
requested that his hours be reduced to 45 This request was granted and he
was given a wage increase of 10 cents an hour Perdue admitted that the
machine provided sufficient production on the basis of a 45 hour week Deans
testified that immediately following Daineion's discharge, he was asked by
Newman and Perdue if he still wanted to resign 3° Deans replied in the nega-
tive but indicated his willingness to resign it it would be "beneficial to the shop" 31
The undersigned credits this testimony.
Conclusions
Upon the basis of the entire record, the undersigned is convinced and finds
that Deans was selected for discharge on February 25, 1946, not because of the
reasons advanced by the respondent but because of his union and concerted
activities. The respondent having rid itself of Dameron numediatel^ ap-
proached Deans with reference to the lattei's earlier threat of resignation The
undersigned believes it is clear that on this occasion, before the change back
from the multiple to the single shift had been decided upon, the respondent was
considering ways and means of getting rid of Deans It was consistent with
its discriminatory discharge of Dameron that it would next turn to Deans
30
31
In Newman's office on Februai y 22, Deans had threatened to resign
Deans testified concerning this interview
Mr Newman and Mr Perdue came over to see me and said "Are you still of the
same opinion that you were on Wednesday, in the morning meeting"" Meaning, was
I still of the same op.aion of resigning And I says, "Will it be beneficial to the shop
if I resign I"
He said, "I am not asking that " He says. "Are you still of the same opinion in
wanting to resign as you were Wed nesday'i" I said, "No " Then he asked me again,
I air pretty sure about resigning I think it was three tiles he asked are and I
refused twice flatly and once I told him if it was beneficial to the shop I would resign
Then I told Mr Newman I would be nuclei a handicap as long as I was in the New-
man Machine Company and lie says, "Deans, I know you will be under a handicap
because Wednesday morning you taught vie how to be cold-blooded, and, lie sins, "I
am going to be cold-blooded "
Then I told him about the machine, it was an out-dated machine, it wouldn't work
very efficiently, so I asked lam about having it fixed up
Then I asked Mr Newman if it was possible for me to get the raise I was supposed
to get on March 1 DIr Newnan turned to Mi Perdue and asked him did I have a
raise coning and Mr Lewis granted that I did have a raise coming
Q By Mr. Lewis-
A Mr Lewis Perdue granted that I did have a raise coming March 1, so Mr New-
man says, "Well, it is in keeping with line of policy of Newman Machine Company to
grant this man his raise, providing lie sticks on his job, doesn t talk, and ceases union
activities and agrees to the labor management committee."
NEWMAN MACHINE COMPANY, INC. 239
since the latter, after Dameron, was unquestionably the most militant among
employees in union activities. That the discharge of Dameron and Deans was
effective in furthering the respondent's desire to thwart self-organization among
the employees, is evidenced by the fact that following these discharges sub-
stantially all union activity in the plant and attendance of union meetings
by respondent's employees ceased.
While the undersigned has found that respondent's action in returning to
the one shift mode of operation was bona fide, the undersigned is convinced
that except for his union and concerted activities, Deans would not have been
one of those discharged pursuant to the resultant curtailment of operations.
The undersigned accordingly finds that by the said discharge of Deans, the
respondent discriminated in regard to his hire and tenure of employment and
discouraged membership in the Union, thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
E The alleged discriminatory discharges on February 25, 1946
The evidence concerning the 11 employees who were dismissed with Deans
on February 25, who are alleged also to have been discriminatorily discharged,
is substantially as follows :
William L. Ku ]clean was employed as stock-room manager. Respondent in
justification of his lay-off furnished convincing evidence that a former em-
ployee, James R. Wilson, had held this position at the time he entered the
armed services, and that Wilson was discharged therefrom on February 3, 1946,
and had requested to be reassigned to his old job From the record, the under-
signed finds that Wilson was entitled to be re-employed by the respondent as
stock-room manager and that he returned to work on February 25, 1946, at
his own request. Wilson was given an assistant for a few weeks to assist in
rearranging the stock, but most of the time handled the stock room by himself ;
thus there was no place for Kirkman in the stock room. -
Richard Dillon Hutchings. His employment commenced in the fall of 1944
and was terminated February 25, 1946. His job was -running a lathe. His
starting pay was 70 cents and he was receiving 90 cents per hour at the time
of his lay-off. He joined the Union about the middle of February 1946. He
gave two notices of resignation. The first one about 6 weeks after lie went to
work. The differences which prompted his resignation were ironed out. About
3 months before the lay-off, he gave another notice of resignation. He had
another conference with Perdue and agreed to give 2 weeks' notice Newman
testified in effect that he was not sure that Hutchings would remain. This
testimony the undersigned credits
Other than joining the Union and attending meetings , Hutchings was not
active in the Union. At one of the mass-meetings , when it was thrown open to
questions, Hutchings asked if it would not be a good idea if the fellows got
together and decided on their grievances and gave them to the grievance com-
mittee. Newman thought it was a good idea and there is nothing to indicate
that the asking of this question created any antipathy towards Hutchings. The
record shows that Hutchings was not satisfied at the plant and that he was
planning to go into business.
James L. Thornbro was employed July 16, 1945. At present he is in the
armed services and did not appear at the hearing. Tltornbro joined the Union
about February 4, 1946, and was active in talking to other employees -about the
Union , and he signed up some employees.
755420-48-vol 74-17
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert C. Ray was employed about October 25, 1945, as a drill press operator.
He joined the Union about February 10, 1940, and talked to other employees
about joining.
Thelton Templeton, employed as a machinist, had been with the respondent
less than 1 month when he was laid off on February 25, 1946 He had joined
the Union in 1938 at a different plant. He took no active part in attempting to
organize the respondent's plant.
H C. Jenkins, H. K. Dillon, L. O. Leonard, J W. Scott, J. W. Collins, and
A. L Overman were the other employees of the respondent whose services were
terminated on February 25, 1946 None of these men appeared at the hearing.
There is no evidence as to their union membership or activity.
As stated, supra, at the conclusion of the hearing, Board's counsel moved to
dismiss the complaint as to five other employees ; they were discharged at the
same time, and, according to the respondent, for the same general reasons, as
the foregoing employees.
Conclusions
The undersigned has found that the respondent's decision to change from a
multiple to a single shift operation was bona tide, and that this action created
a surplus of some 17 employees. The undersigned is convinced on the basis of
the entire evidence that with the exception of Deans, the respondent did not
discriminate in its selection of men to be discharged in bringing about the re-
quired reduction in personnel. In the case of Kirkman, it appears that had
there been no general reduction in personnel he still would have been replaced
by a returning veteran. Hutchings was obviously dissatisfied with his job and
had given two notices of resignation. Under the circumstances, it would appear
logical that the respondent would designate him as one of the dischargees in a
general reduction of personnel. Six of the employees allegedly discriminated
against did not testify and there is no evidence as to their union membership
or activity. The Board's complaint as to them could be sustained only on the
theory that the respondent's action in reducing its work shifts was discrimi-
natorily motivated and the undersigned has found that it was not. Of the re-
maining three employees now under consideration, while the evidence indicates
that Templeton joined the Union prior to his employment by the respondent, there
is no evidence that he was active in organizing the respondent's plant or that
the respondent had any knowledge of his union affiliation. As to Thornbro and
Ray, while the evidence indicates that they were active in behalf of the Union,
there is no evidence that this activity was of such conspicuous or outstanding
character that knowledge on the part of the respondent should be presumed.
In view of the foregoing and upon the entire record, the undersigned finds that
the Board has not established by a preponderance of evidence that the employees
here under consideration were discriminatorily discharged or laid off, and ac-
cordingly will recommend that the complaint be dismissed insofar as it alleges
the discriminatory discharge or lay-off of Kirkman, Hutchings, Thornbrb, Ray,
Templeton, Jenkins, Dillon, Leonard, Scott, Collins, and Overman.
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 the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow thereof.
NEWMAN MACHINE COMPANY, INC. 241
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices affecting commerce, the undersigned will recommend that it cease and desist
therefrom and take certain affirmative action which the undersigned finds neces-
sary to effectuate the policies of the Act.
It has been found that the respondent has dominated and interfered with the
formation of the Committee and has contributed support thereto. The effects
and consequences thereof as well as any continued recognition of the Committee
as the bargaining representative of the respondent's employees, constitute a con-
tinued obstacle to the free exercise by the respondent's employees of their right
to self-organization and to bargain collectively through representatives of their
own choosing. Because of the respondent's illegal conduct with regard to the
Committee, it is incapable of serving the respondent's employees as a genuine
collective bargaining agent. While it is true that the Committee has not func-
tinued obstacle to the free exercise by the respondent's employees of their right
eyes of the employees may still be viewed as the recognized exclusive bargaining
agent. The undersigned accordingly will recommend that the respondent with-
draw all recognition from the Committee as the representative of any of its em-
ployees for the purpose of'dealing with the respondent concerning grievances,.
labor disputes, wages, rates of pay, hours of employment, or other conditions of
employment, and completely disestablish the Committee as such representative.
It has been found that the respondent discriminated in regard to the hire and
tenure of employment of Marvin J. Dameron and John L Deans. It will be rec-
ommended that the respondent offer to them reinstatement to their former or
substantially equivalent positions 32 without prejudice to their seniority and
other rights and privileges and that the respondent make them whole for any loss
of pay they may have suffered by reason of the respondent's discrimination
against them by payment to each of them of a sum of money equal to the amount
lie normally would have earned as wages during the period from the date of dis-
crimination to the date of the offer of reinstatement, less his net earnings" dur-
ing said period.
As has been found above, the respondent has employed various illegal methods,
including domination and interference with the formation of a labor organiza-
tion, discriminatory discharges, and other coercive conduct, in furtherance of a
general effort and purpose to frustrate and discourage union organization by its
employees. Because of the respondent's unlawful conduct and its underlying
purpose, the undersigned is convinced that the unfair labor practices committed
by the respondent are related to other unfair labor practices proscribed by the
Act and that 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 recommended order is coextensive with the threat. In order,
81 In accordance with the Board 's consistent interpretation of the term, the expression
"former or substantially equivalent position " is intended to mean "former position wherever
possible, but if such position is no longer in existence, then to a substantially equivalent
position ." See Matter of the Chase National Bank of the City of New York, San Juan,
Puerto Rico Branch , 65 N L. R B 827.
33 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondents , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company, 8 N. L. R. B 440 Monies received for work performed
upon Federal , State, county , municipal , or other work-relief projects shall be considered
as earnings . See Republic Steel Corporation v. N L. It. B., 311 U. S. 7.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore, to make effective the interdependent guarantees of Section 7, to pre-
vent 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 in
any manner infringing upon the rights guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, and the Labor-Management Committee, are labor organizations
within the meaning of Section 2 (5) of the Act.
2. By dominating, interfering with, and contributing support to the formation
and administration of the Labor-Management Committee, the respondent has
engaged in and is engaging in unfair labor practices, within the meaning of Sec-
tion 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Mar-
vin J. Dameron and John L.'Deans, thereby discouraging membership in United
Steelworkers of America, C. I. 0., the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of the Act.
4. 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 (1)
,of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
6. By the discharge of William L. Kirkman, Richard Dillon Hutchings, James
L. Thornbro, Robert C. Ray, Thelton Templeton, H. C Jenkins, H K Dillon,
L. O. Leonard, J. W. Scott, J. W. Collins, and A. L Overman, respondent has
not discriminated in regard to the hire and tenure of its employees.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that Newman Machine Company, Inc., Greensboro,
North Carolina, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Dominating and interfering with the formation or administration of, or
contributing financial or other support to, Labor-Management Committee or
any other labor organization of its employees;
(b) Recognizing Labor-Management Committee as the representative of any
of its employees for the purpose of dealing with the respondent concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or other con-
ditions of employment;
(c) Discouraging membership in United Steelworkers of America, C. I. 0.,
or any other labor organization of its employees, by discrimination in regard to
hire or tenure of employment or any term or condition of employment ;
(d) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization, to form labor organiza-
tions, to join or assist United Steelworkers of America, C. I. 0., or any other
labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
NEWMAN MACHINE COMPANY, INC. 243
(a) Withdraw all recognition from and completely disestablish Labor-Man-
agement Committee as the representative of any of its employees for the purpose
of dealing with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment;
(b) Offer to Marvin J. Dameron and John L. Deans immediate and full re-
instatement to their former or substantially equivalent positions without preju-
dice to their seniority or other rights and privileges ; 34
(c) Make whole Marvin J. Dameron and John L. Deans for any loss of pay
they may have suffered by reason of the discrimination against them by pay-
ment to each of them of a sum of money equal to an amount determined in the
manner set forth in the Section entitled "The remedy" above;
(d) Post at its plant at Greensboro, North Carolina, copies of the notice at-
tached to the Intermediate Report herein, marked "Appendix A." Copies of
said notice, to be furnished by the Regional Director for the Fifth Region,
shall, after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt thereof and maintained by it for
sixty (60) consecutive days thereafter in conspicuous places including all
places where notices to employees are customarily 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) File with the Regional Director for the Fifth Region on or before ten
(10) days from the date of the receipt of this Intermediate Report a report
in writing setting forth in detail the manner and form in which the respondent
has complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203 38 of
said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
ington 25, D. C , an original and four copies of a statement 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 four copies of a brief in support
thereof ; and any party or counsel for the Board may, within the same period,
file an original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. Proof
of service on the other parties of all,papers filed with the Board shall be promptly
made as required by Section 203 65. As further provided in said Section 203.39,
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.
WILLIAM J. SCOTT,
Trial Examiner.
Dated October 21, 1946.
34 See footnote 32, supra.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We hereby disestablish the Labor-Management Committee as the repre-
sentative of any of our employees for the purpose of dealing with us con-
cerning grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, and we will not recognize it or
any sucessor thereto for any of the above purposes.
We will not dominate or interfere ,dith the formation or administration
of any labor organization or contribute financial or other support to it.
We will offer to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without prej-
udice to any seniority or other rights or privileges previously enjoyed, and
make them whole for any loss of pay suffered as a result of the discrimina-
tion.
Marvin J. Dameron
John L. Deans
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist United Steelworkers of America, C. I. 0., or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection. All our employees are free to become or
remain members of this union, or any other labor organization. We will not
discriminate in'regard to hire or tenure of employment or any term or condition
of employment against any employee because of membership in or activity on
behalf of any such labor organization.
NEWMAN MACHINE COMPANY, INC.,
Employer.
By -------------------------- ------------
(Representative) (Title)
Dated ------------------------------------
NOTE : Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
U