Precision Castings Co., Inc.

National Labor Relations Board - Board Decisions

Dec 19, 1941

37 N.L.R.B. 774 (N.L.R.B. 1941)

In the Matter of PRECISION CASTINGS COMPANY, INC. and NATIONAL
ASSOCIATION OF DIE CASTING -WORKERS, REGION No. 5, _ AFFILIATED
WITH C. .LO
Case No.--C-1857.-Decided December 19, 1941
Jurisdiction : die castings manufacturing industry.
Unfair Labor Practices
Interference, Restraint , and Coercion : charges of, dismissed without prejudice.
Discrimination : charges of, dismissed without prejudice.
Practice and Procedure : complaint dismissed without prejudice.
A submitted controversy will not be decided on the basis of an agreed
statement of which substantial parts state merely evidentiary facts and
present only, questions of ultimate fact as to which conflicting inferences
are possible.
Mr. Thurlow Smoot, for the Board.
Stanley f Smoyer, by Mr. Harry E. Srao yer and Mr. Eugene B.
Schwartz, of Cleveland, Ohio, for the respondent.
Mr. Alex Balint, of Cleveland, Ohio, for the Union.
Mr. Louis Newman, of Counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed by National Association of Die
Casting Workers, Region No. 5, affiliated with C. I. 0., herein called
the Union, the National Labor Relations Board, herein called the
Board, by the Regional Director for the Eighth Region (Cleveland,
Ohio), issued its complaint dated November 20, 1940, against Pre-
cision Castings Company, Inc., Cleveland, Ohio,' 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 (1) and (3) and Section 2 (6) and (7) of, the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
1 The plant involved in this proceeding is in Lakewood, Ohio, but is generally known
as the Cleveland plant.
37 N. L. R. B., No. 123.
774
PRECISION. CASTINGS COMPANY.,' INC. 775
Copies of the complaint and "of notice of hearing thereon were duly
served,on the respondent and the Union.
. With respect to the unfair labor practices, the complaint alleged
in ;substance that on or about July 15, 1940,2 the respondent refused
to reinstate and that it has ever since refused to reinstate, 35 named
employees 3 td their 'former or substantially equivalent positions with-
out prejudice, to .their seniority and other rights and privileges, be-
cause they were leaders and members of the Union and were active
in its behalf and.because they had engaged in other concerted activi-
ties for the purpose of collective'bargaining. On December 23, 1940,
the respondent filed its answer to the complaint, in which it admitted
being engaged in commerce within the meaning of the Act, but denied
the alleged unfair labor practices.
Pursuant to notice, a hearing was held at Cleveland, Ohio, on Jan-
uary 2, 3, 6, and 7, 1941, before Howard Myers, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the
respondent were represented by counsel and the Union by one ofits
officers, and all participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues was afforded all parties. During the hear-
ing, as pointed out above, a motion by counsel for the Board to dismiss
the complaint as to employee Lillian Dotson was granted by the Trial
Examiner without objection. Rulings on other motions and on the
admissibility' of evidence were also made by the Trial Examiner dur-
ing the,course of the.hearing. The Board.has reviewed all the rulings
of the Trial Examiner and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. At the close of the hearing
the parties were given, but did not avail themselves of, an opportunity
to argue orally before the Trial Examiner and to file briefs with him.
On January 7, 1941, during the hearing, an "Agreed Statement of
Facts," dated the previous day and signed by counsel for the Board and
for the respondent, was received in evidence together with a series
of attached appendices or exhibits. The record consists of this` agreed
statement, the pleadings and other formal documents herein, a stipu-
lation as to the business,of the respondent,`copies of certain formal-
doc-uments and of the Board's decisions in two prior proceedings involving
the same respondent, and testimony as to whether some of the employ-
ees involved had, subsequent to June 25, 1940, obtained substantially
equivalent employment elsewhere.
2 A strike called by the Union on June 24, 1940, was terminated on July 14, 1940. Ap-
plications for reinstatement were filed on and after July 15, 1940, by the complaining
witnesses and other employees of the respondent who did not work during the strike
3 During the hearing, counsel for the Board moved that the complaint be dismissed as
to Lillian Dotson , one of the 35 named employees The motion was granted by the Trial
Examiner without objection.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 10, 1941, counsel for the Board in this proceeding and
in Case No. C-1658, involving the same respondent, moved to con-
solidate the cases. By order dated January 21, 1941, the motion was
denied by the Board after consideration of briefs submitted by the
respondent and by counsel for the Board.4
On January 25, 1941, pursuant to a stipulation previously entered
into by counsel for the Board and for the respondent, the Trial Exam-.
iner-issued=a norder-directing that certain corrections be made in the -
transcript of the testimony taken during the hearing.
Thereafter, the Trial Examiner issued his Intermediate Report
dated April 9,1941, copies of which were duly served on .the respondent
and the Union. The Trial Examiner found that the respondent had
engaged in and was engaging in unfair labor practices, within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
Act, and recommended that the respondent cease and desist therefrom
and that it take certain affirmative action designed to effectuate the
policies of the Act. On May 19 and May 28, 1941, respectively, the
respondent filed with the Board its exceptions to the Intermediate
Report and a brief in support of its exceptions. Thereafter, pursuant
to notice duly served on the parties, a hearing was held before the
Board in Washington, D. C., on June 26, 1941, for the purpose of
oral argument. The respondent was represented by counsel and par-
ticipated in the hearing; the Union did not appear.
The Board has considered the exceptions and the brief submitted
by the respondent, but deems it unnecessary to pass upon the merits of
the exceptions in view of the disposition hereinafter made of the
proceeding.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. TIIE BUSINESS OF THE RESPONDENT
Precision Castings Company, Inc., is a New York corporation hav-
ing its principal office and place of business at Syracuse, New York,
and manufacturing plants at Syracuse and Fayetteville, New York,
and Lakewood, Ohio. It is engaged in the manufacture of die cast-
ings for the automotive and utensil industries. The present proceed-
ing involves only the plant at Lakewood, Ohio, which is known as the
Cleveland plant.
Sales during the year 1939 of products manufactured at the Cleve-
land plant totalled approximately $850,000, of which approximately
4 Case No C-1658 has since been separately decided Matter of Precision Castings
Company, Inc' and National Association of Dee Casting Workers, Local No. 5, afJilsated
with C 1 0 , 30 N L R B., No 30 (March 10 , 1941).
PRECISION CASTINGS COMPANY, INC. 777
$250,000 represented products sold and shipped to purchasers outside
the State of Ohio. During the same period the respondent in its
Cleveland plant used raw materials valued at approximately $340,000.'
Substantially all of these raw materials were obtained by the respond-
ent from points outside the State of Ohio.
The respondent admits that it is engaged in commerce , within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
National Association of Die Casting Workers, Region No. 5, is a
labor organization affiliated with the Congress of Industrial Organiza-
tions. It admits to membership employees of the respondent at its
Cleveland plant.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The agreed facts
Following , is a-summary of th 'e"fa'cts which hiibe been , agreed upon
as stating the controversy to be decided :
On June 24 , 1940, the Union called a strike in the respondent's
Cleveland plant. The strike was a consequence of a current labor
dispute, but was not caused by any unfair labor practices on the
part of the respondent . On Sunday , July 14, 1940, the strike was
terminated by the Union. Twenty employees who did not work dur-
ing the strike , but who indicated to the respondent during the week
ending July 13, 1940, that they wished to return to work, were rein-
stated and worked during the week , of July 15-20, 1940 , without
being required to fill out applications for reinstatement . The re-
spondent required all -other employees who did not work during the
strike to fill out and submit applications for reinstatement. Such
applications were filed by 88 employees on and after July 15, 1940.
Among- these 88 - applicants were the 34 employees involved in the
present proceeding , all but one of whom filed their applications on
July 15, 16, or 17, 1940. Each applicant for reinstatement was given
a notice which stated , in effect, that : ( 1) 'applications for reinstate-
ment would be accepted from and required of all persons not rein-
stated prior to July 1'4, 1940; ( 2) employees who had not worked
during the period of the strike because they were ill, on vacation, or
absent with leave, or because of intimidation would retain their
seniority status and would be reinstated in order of seniority as work
became available; (3) employees who had not worked during the
period of the strike , but not because they were ill, on vacation,
or absent with leave , or because of intimidation, would be reinstated
as work became available , but with new seniority starting - from the
778 DECISIONS 'OF NATIONAL 'LABOR) RELATIONS BOARD
dates of their return to work; and -(4) employees who had "engaged
in 'acts of violence" during the period of the strike or who had,
"wilfully attempted to prevent the operation" of the respondent's
plant during the period of the strike otherwise than by "merely ab-
senting themselves from work without leave" would not be -reinstated
immediately, but their applications would be "accepted and con-
sidered for future action." In accordance with this notice, the ap-
plications of all employees who stated that they had been absent from
work during the period of the strike with leave, or absence of in-
timidation, or because they were ill or on vacation were at once con-
sidered by the respondent, and all these applicants were reinstated
as fast as jobs became available. Reinstatement of all but 4 or 5
of these applicants was accomplished within approximately a month
after the termination of the strike.
Of the 34 employees involved in this proceeding, 31 indicated on
their applications for reinstatement that they had been absent from
work during the period of the strike because they had been "on
strike," and 3 indicated on their applications that they had been
absent from work during the:period of the strike "without leave and
not because of intimidation." The applications of these 34 employees
were "set aside for future consideration by Respondent, it being Re-
spondent's opinion that said persons (the complainants herein) vio-
lated the contract . . . and the seniority rules therein contained."
These seniority rules had been established in a contract between the
respondent and Precision Employees Association made in November
1939 and in ` effect during the period herein question. The rules
thus established provided, in part, that an employee would lose his
seniority if he remained away from work for three day or longer,
"without justifiable cause and without notifying the Employer of
his intended absence."
The respondent did not reach a decision as to the applications of
the 34 employees involved in this proceeding until on or about Au-
gust 14, 1940, and it is stipulated that "the intervening time between
July 15, 1940 and August 14, 1940 was consumed by Respondent by,
the handling of other matters necessary to the operation of its Cleve-
land plant, after a partial interruption in operations . . ." On
August 13 or 14, 1940, the applications of these 34 employees were
considered by the respondent together with certain information and
charges as to the conduct of some of these employees during the
period of the strike. .The information and accusations which the
G On March 10, 1941, in Case No C-1658 to which reference has been made above, the
Board found Precision Employees Association to be a company-dominated labor organiza-
tion and ordered the respondent to disestablish it and to cease giving effect to the con-
tract between the respondent and the Association , "without prejudice to the assertion by
the employees of any legal rights they may have acquired under such contract."
- PRECISION -CAS'`INGS COMPANY, INC. 779',,
respondent had received were to the effect that certain of these em-;
ployees had engaged in various acts of violence; that 11 of them had,
been convicted ,on July 13, 1940, of contempt of a restraining order
entered upon the respondent's application by a Justice of the Court.
of Common Pleas of Cuyahoga County, State of Ohio, on July 1,•
1940, during the strike; and that warrants of arrest had been issued
in criminal proceedings against 4 of these employees arising out of
conduct allegedly engaged in by them during the strike. The re-
spondent's plant manager, "acting upon" this information and these,
charges, decided and announced that 19 of the 34 employees would,
be reinstated as soon as jobs became available and that the applica
tions of the remaining 15 would be held for further consideration.
Of the 19 employees whom the plant manager thus decided to re-
instate, 13 were actually reinstated during August 1940 and one was
reinstated on September 10, 1940. All of these 14 employees were
reinstated with new seniority starting from their respective `dates of
reinstatement. The foremen of the 5 other employees whom the
plant manager decided to reinstate, when informed of the decision
to reinstate them, objected to their reinstatement on the ground that,
they had so conducted themselves towards other employees in their;
work prior to the strike that they could not work peacefully with.
the other employees of the respondent if they were reinstated. The
respondent's plant manager "thereupon decided to withhold reinstate-
ment" of these 5 employees. Neither these 5 employees, nor the 15'
employees whose applications the plant manager on August 13 or 14,
1940, set aside for future consideration, had been reinstated by the
respondent at, the time of the hearing herein. Decision as to the'
reinstatement of all 20 of these employees is "still being withheld."
In deciding to reinstate certain of the employees involved in this
proceeding and to withhold for future consideration the applications,
of the others, the respondent "did not give consideration to whether
or not said applicant was a member of or a leader in or active in
behalf of the Union in Respondent's plant, when employed there.
Respondent having reason to believe that each and all of said appli--
cants (who are complainants herein) were members of or leaders in
or active in behalf of the Union in Respondent's plant, when 'em--
ployed there."
B. Conclusions
The agreed statement presents major problems with respect to:
(1) the reinstatement procedure adopted by the respondent subse-
quent to the strike; (2) the five employees whom the respondent first
decided to reinstate but whose reinstatement was withheld following
objections by their foremen; and (3) the 15 employees whom the
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent has never decided to reinstate and whose applications are
still being held for future consideration.
With certain exceptions, notably as to the basis for the foremen's
objections to the reinstatement of the five employees, the agreed
statement and its appendices picture in some detail the events and
surrounding circumstances which have given rise to this proceding.
Thus, the reinstatement machinery set up by the respondent follow-
ing the strike, the steps taken by the respondent to reinstate some
employees and not others, the number and identity of the respondent's
employees from time to time during and after the strike, and the
information and charges as to the conduct of employees of the re-
spondent during the, strike appear at length. However, as to two of
the three problems presented, the facts given in the agreed state-
ment and its appendices are only evidentiary facts. The ultimate'
or decisive fact, viz., the motivation for the respondent's decision, is
not explicitly stated either "with respect to the five employees whose
reinstatement the respondent decided to withhold because -of their
foremen's objections or with respect to the 15 employees-- whom- the
respondent has never decided to reinstate. As to the former, the
agreed statement recites only that, when the foremen of these five
employees objected to their reinstatement, the respondent "thereupon"
decided to withhold their reinstatement; as to the latter, it appears
only that certain information and accusations as to the conduct of
its employees during the strike came to the respondent's attention, and
that the respondent's plant manager gave delayed consideration to
the applications of all 34 of the employees involved in this proceed-
ing and, "acting upon" the information and accusations which had
been received, decided to hold for future consideration the applica-
tions of the 15 employees in question. It has not been explicitly
agreed that reinstatement of the five employees was withheld because
of the objections of their foremen or because the respondent believed
these five employees would not be able to work with their fellow em-
ployees, nor has it been explicitly agreed that the respondent decided
not to reinstate the group of 15 employees along with the others
because of the information and charges which it had received. The
motivation might in each instance be inferred, but inference is
necessary to supply what the agreed facts have omitted.
It is evident, we think, that these omissions were not inadvertent.
As to the period prior to the strike it was explicitly recited that
the respondent, in deciding to reinstate some of the 34 complainants
and not the others, did not give consideration to their union mem-
bership or activity during that period. Similarly, when the ulti-
mate fact as to the cause of the strike had been agreed upon, it was
explicitly stipulated in the agreed statement that the strike ' was
PRECISION CASTINGS COMPANY, , INC. 781
not called because of any unfair labor practices on the part of the
respondent . No similar or parallel statement is made with respect
to the events which followed the strike . On the contrary, the
agreed statement and its appendices consist largely of a mass of
subsidiary or evidentiary facts relating what took place during
and after the strike , from which it was obviously intended that
the Board infer and find the omitted ultimate facts. Certainly
,not all these evidentiary facts would otherwise have been regarded
as necessary or material , nor would the agreed statement otherwise
have been so extended.
Moreover , we are of the opinion that conflicting , although per-
haps not equally cogent, inferences of ultimate fact are possible on
the basis of the agreed evidentiary facts. This would be apparent,
if from nothing else, from the obvious reluctance to stipulate the
ultimate facts which mark the agreed statement and from the
conscious effort that was made to avoid doing so. The Trial Ex-
aminer in fact has made findings which the respondent earnestly
contends are not justified by the agreed facts. Examination of
the evidentiary facts which have been stipulated indicates that
there is reason for divergence of opinion as to the inferences which
should be drawn . For example , the respondent contends , and some
of the agreed facts tend to support the contention , that reinstate-
ment of the group of 15 employees has thus far been withheld in
part because of certain information and charges as to their conduct
during the strike. That such information and charges were re-
ceived by the respondent is agreed , and it might be inferred that
they, and not any animus against union members or strikers as
such, are the reason for the respondent 's failure thus - far to reinstate
these employees . On the other hand, it appears that three employees
who stated in their applications for reinstatement that they had
been absent from work during the strike because of intimidation,
and who were therefore among the applicants whom it is stipulated
the respondent reinstated in order of seniority as work became
available, had also been accused of misconduct during the strike.
This would tend to support the inference that the respondent was
in fact discriminating not between employees allegedly or actually
guilty of misconduct and employees not so guilty , but between em-
ployees who admitted voluntary participation in the strike and
employees who made no such admission . Further support for an
inference that the respondent was not in fact concerned with alleged
or actual misconduct on the part of strikers might be found in the
fact .that four of the five employees whom the respondent decided
to reinstate but whose reinstatement was then withheld because of
their foremen 's objections and a substantial proportion of the 14
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees whom the respondent actually reinstated on and after
August 14, 1940, had also been accused • of • engaging in misconduct
as reprehensible in some respects as that attributed to some of the
group of 15 employees whom the respondent has never decided to
reinstate. -
The respondent also relies, in part, on the stipulated fact that
some of the 15 employees whom it has never decided to reinstate
were convicted of contempt of a court order or were named as
defendants in criminal proceedings arising out of their conduct dur-
ing the strike. It is also stipulated, however, that Carlos Cornwell,
an employee who worked during the strike, was found by the court
in the contempt proceeding to have testified falsely against one of
,the strikers and was adjudged guilty of perjury and of obstructing
the administration of justice. Nevertheless, Cornwell is still work-
ing for the respondent. The inference might be made that here,
-too, the respondent was discriminating between strikers and non-
strikers, rather than between employees who respected judicial
process, and, those who did not.
If it were necessary to draw inferences with respect to the rein-
;statement procedure adopted by the respondent following the-strike,
the same possibility of conflict would apear. The respondent's posi-
-tion, expressed in its brief and based upon some of the agreed facts,
is that the reinstatement procedure established and followed by it
Subsequent to the strike was designed and intended to enforce the re-
spondent's seniority rules impartially and without discrimination
against employees for union or strike activity. However, it appears
that, although the respondent's notice to all applicants for reinstate-
ment stated in part that applications would be required of all persons
not rehired or reinstated prior to July 14, 1940, 20 employees who had
indicated to the respondent during the week ending July 13, 1940, that
they desired to return to work were reinstated to their jobs upon the
termination of the strike without filing applications. This relaxation
of the respondent's reinstatement rules in favor of a group of employees
who had indicated a willingness to renounce the strike and thereby
the Union might be regarded as some indication that the respondent's
primary interest lay in obtaining just such reunuciations from its
employees. Any such inference as to the respondent's motive in es-
tablishing its reinstatement procedure would perhaps be supported
by the respondent's apparent acceptance at face value of the state-
ments contained in the application for reinstatement which were
filed. Here, again, conflicting inferences would be possible, but it
would be at least permissible to infer that the respondent was concerned
less with the truth of the reasons assigned by employees for their ab-
sence from work than with their open repudiation of the strike. Simi-
PRECISION CAST GS COMPANY, INC. 783
,,Jarly, it might be said that the respondent, by notifying all applicants
-that it would give preferential consideration,to the applications of
.employees who were absent from work during the strike with leave or
because of illness, vacation, or intimidation, in effect confronted its
.employees with the alternative of repudiating any connection with the
strike or having consideration of their reinstatement applications
deferred.
We have, therefore, an agreed statement of which substantial parts
present "only a debatable question of ultimate fact." 6 In addition, de-
cision of these questions of ultimate fact "necessarily involves the
duty of drawing inferences from inconclusive, eqiuvocal or evidentiary
facts before a legal conclusion can be formed . . ." 7 The task of
deciding among conflicting inferences is, of course, a concomitant of
administrative as well as of judicial disposition of controversies.
There is nothing in the Act to prohibit our performance of, this task
in a controversy presented on an agreed statement of facts. Where
'the evidence from which inferences are to be drawn is presented by
way of a testimonial record, we' are better able in.drtiwing ,inferences
to exercise an informed judgment. Inherent' hallmarks of credibility,
internal evidences of testimonial truth or untruth, and all the other
criteria furnished by a written record of testimony are then available
in gauging the relative weight of conflicting elements in the record
upon which decision'is to be made. In addition, we are then able to
'rely in part on the judgment of the presiding officer who hears the wit-
'nesses and observes their demeanor on the stand. An equally informed
-judgment is less frequently possible where the evidentiary facts are
,presented by way of an agreed statement and without oral testimony.
All the agreed facts must then be taken as true, and there is no less rea-
son for accepting some of the agreed facts which tend to support one
inference than there is for accepting other agreed facts which tend to
support a conflicting inference. We therefore believe it inadvisable,
in view of the nature of the agreed statement of facts herein, to decide
the present controversy on the basis of the record which has been
made.,
It may be argued, and with some force, that the agreed state=
ment is not deficient in failing to state the respondent's intent or
motive in adopting the reinstatement procedure which, it followed
subsequent to the strike. The validity of the reinstatement pro-
cedure under the Act may well be a substantial question of law sus-
6 See Feast v Fifth Avenue Bank, 280 N Y. 189, 193, 20 N E (2d) 388, 390 (1939).
' See Maax v Brogan, 188 1\ Y 431, 433, 81 N. E 231, 232 (1907).
s Cf Kapiolani Maternity and Gynecological Hospital v IVodehouse, 70 F (2d) 793
(C.,C. A 9, 1934) ; Feist v Fifth Avenue Bank, 280 N Y. 189, 20 N E (2d) 388 (1939)
Rushing v Commercial Casualty Insurance Co , 251 N. Y. 302, 167 N. E. 450 (1929)
Marx v Brogan, 188 N. Y 431, 81 N E. 231 (1907)
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceptible of decision without reference to the respondent's bona fides
in adopting it. We are of the opinion, however, that no useful pur-
pose would be served by a decision finally disposing only of that
aspect of the case. Besides, the -respondent's motive in adopting its
reinstatement procedure, if and when it can be clearly ascertained,
would undoubtedly have an important bearing on the determination
of the remaining issues in the case.
We shall therefore dismiss the complaint in its entirety, but with-
out prejudice to the institution of a new proceeding.
On the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. The operations and business of the respondent occur in com-
merce, within the meaning of Section 2 (6) of the Act.
2. National Association of Die Casting Workers, Region No. 5,
affiliated with C. I. 0., is a labor organization, within the meaning
of Section 2 (5) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
complaint against the respondent, Precision Castings Company, Inc.,
Cleveland, Ohio, be, and it hereby is, dismissed without prejudice.
MR. GERARD D. REILLY took no part in the consideration of the
above decision and Order.