S. B. Whistler & Sons, Inc.

National Labor Relations Board - Board Decisions

Nov 8, 1950

92 N.L.R.B. 1 (N.L.R.B. 1950)

In the Matter of S. B. WHISTLER & SoNs, INa. and INTERNATIONAL
UNION, UNITED AUTO3IOI3ILE, AIRCRAFT AND AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA, CIO
Case No. 3-CA-130.-Decided November 8, 1950
DECISION AND ORDER
On June 1, 1950, Trial Examiner Ralph Winkler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1) and (3) of the Act, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board' has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the
case,2 and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions and
modifications.3
1. The Trial Examiner found, and we agree, that the Respondent
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, thereby violating.
Section 8 (a) (1) of the Act, as amended, by: (a) Vice-President
Whistler's questioning employee Klein on February 2, 1949, as to
t Pursuant to the provisions of Section 3 (b) of the Act , the National Labor Relations
Board has delegated its powers in connection with this proceeding to a three -member panel
[ Chairman Herzog and Members Murdock and Styles].
2 The request of the Respondent for oral argument is denied because the record, the ex-
ceptions and brief submitted , in our opinion , adequately present the issues and position
of the parties.
3 The Intermediate Report contains minor inaccuracies which do not affect our ultimate
findings : ( 1) The Trial Examiner erroneously stated that Merz testified that only Havas
had greater seniority than Rafter as a universal draftsman ; the record , however, shows
that Merz testified that only Havas had greater seniority than Lang as a universal drafts-
man; and ( 2) the 'Trial Examiner erroneously stated that Rafter's absences on July 16
and 17 , 1. 948, were with Merz ' s permission ; the record , however , does not show that the
absences on July 16 and 17, 1948, were with Merz's permission.
92 NLRB No. 1.
929979-51-vol. 92-2
1
2
i
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether anyone_had"contacted (him) the previous evening about the
Union," and specifically, whether Rafter and Lang had done so; and
(b) Vice-President Whistler's interrogation of job applicants con-
cerning their union membership.
2. We also agree with the Trial Examiner for the reasons fully
set forth in the Intermediate Report,' that the Respondent discharged
Rafter on February 2, 1949, and Lang on February, 25, 1949, because
of their activities in behalf of the Union, thereby violating Section
8 (a) (3) and 8 (a). (1) of the Act.
The Remedy
As recommended by the Trial Examiner, we shall order the -Re-
spondent to make Rafter and Lang.whole for any loss of pay they may
have suffered by reason of the Respondent's discrimination against
them. Since the issuance of the Trial Examiner's Intermediate Re-
port, however, the Board has adopted a method of computing back
pay different from that prescribed by the Trial Examiner.5 Consist-
ent with that new policy, we shall order that the loss of pay be com-
puted on the basis of each separate calendar quarter or portion thereof
during the period from the Respondent's discriminatory action to the-
date on which the employee no longer desired reinstatement (May 31,
1949, in case of Rafter; March 7, 1949, in case of Lang). The quar-
terly periods, hereinafter called "quarters," shall begin with the first
day, of January, April, July, and October. Loss of pay shall be de-
termined by deducting from a sum equal to that which the employee
would normally have earned for each quarter or portion thereof, his
net earnings,c if any, in other employment during that period. Earn-
ings in one particular quarter shall have no effect upon the back-pay
liability for any other quarter.
We shall also order the Respondent to make available to the Board
upon request, payroll and other records to facilitate the checking of
the amount of back pay due.7
4 In addition to the facts found and relied upon by the Trial Examiner in reaching his
conclusion as to the discharge of Lang, we also rely upon the evidence showing that,
following the discharge of Rafter on February 2, 1949, Lang did not discontinue his
activities in behalf of the Union , but accelerated them. Thus, Lang credibly testified that
between February 2 and 25, 1949 , he signed up 23 new members in the Union.
5 F. W. Woolworth Company , 90 NLRB 259.
6 By "net earnings " is meaift earnings less expenses , such as for transportation, roomy
and board , incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for the unlawful discrimination and the
consequent necessity of seeking employment elsewhere . Crossett Lumber Company, 8
NLRB 440 . Monies received for work performed upon Federal , State , county , municipal,
or other work-relief projects shall be considered as earnings . Republic Steel Corporation
v. N. L. R. B.. Sll U. S. 7.
1 F. W . Woolworth Company , supra.
S. B. WHISTLER & SONS, INC. 3
As recommended by the Trial Examiner we--shall also order the
Respondent to cease and desist from, in any other manner, infringing
upon the rights guaranteed in Section 7 of the Act.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby. orders that the Respondent, S. B. Whistler &
Sons, Inc., Buffalo, New. York, its officers, agents, successors, and
assigns shall :
1. Cease and desist from :
(a) Interrogating employees and applicants for employment con-
cerning their union membership and activities or concerning the union
activities of other employees ;
(b) Discouraging membership in International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica, CIO, or in any other labor organization, by discharging any of
its employees or by discriminating in any other manner in regard to
their hire or tenure of employment, or any term and condition of
employment ;
(c) In any other manner, interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Union, United
Automobile, Aircraft and Agricultural Implement Workers of
America, CIO, 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, or to refrain from any and all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole Harry R. Lang and John Rafter in the manner set
forth above in the section entitled "The Remedy" for any loss of pay
they may have suffered by reason of the discrimination against them;
(b) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security pay-
ment records, time cards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due under the
terms of this Order;
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its place of busines in Buffalo, New York, copies of the
notice attached hereto and marked Appendix A." Copies of said
notice, to be furnished by the Regional Director for the Third 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 con-
spicious places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by-the Respond-
ent'to insure that said notices are not altered, defaced, or covered by
any other material ;
(d) Notify the Regional Director for the Third Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
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 :
WE WILL NOT discourage membership in INTERNATIONAL UNION,.
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, CIO, or any other labor organization of
our employees, by discharging any of our employees, or by dis-
criminating in any other manner with regard to their hire and
tenure of employment, or any term or condition of employment.
WE WILL NOT interrogate employees and applicants for em-
ployment concerning their union membership and activities or
concerning the union activities of other employees.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist the INTER-
NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICUL-
TURAL IMPLEMENT WORKERS OF AMERICA, CIO, 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 protec-
tion, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring
'In the event that this Order is enforced by a decree of a United States 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 Court of Appeals Enforcing."
S. B. WHISTLER & SONS, INC. 5
membership in a labor organization as a condition of employment
as authorized by Section 8 (a) (3) of the Act.
WE WILL MAKE whole Harry R. Lang and John Rafter . for any
loss of pay suffered as a result of the discrimination against them.
All our employees are free to become or remain members of the
above-named 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 member-
ship in or activity on behalf of any such labor organization.
S. B. WHISTLER & SONS, INC.,
Employer.
By ---------------------------------
Dated --------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
William J. Cavers, Esq., for the General Counsel.
Davis, Townsend, MeElvien r Potter, by Harold F. Potter , Esq., and Leland G.
Davis, Esq ., of Buffalo , N. Y., for the Respondent.
Mr. Jay C. Watkins, of Buffalo , N. Y., for the UAW.
STATEMENT OF THE CASE
Upon a first amended charge filed May 9, 1949, by International Union, United
Automobile, Aircraft and Agricultural Implement Workers of America, CIO,
herein called the UAW, the General Counsel for the National Labor Relations
Board, by the Regional Director for the Third Region (Buffalo, New York),
issued a complaint dated October 18, 1949, alleging that, by discriminatorily dis-
charging two employees and by other conduct, the Respondent had engaged in
and was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Labor Manage-
ment Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the com-
plaint, with copies of the second amended charge, were duly served upon the
Respondent.
The Respondent filed an answer denying that it committed the unfair labor
practices alleged in the complaint ; it also interposed certain affirmative defenses
to the complaint.
Pursuant to notice, a hearing was he'ld on April 24 and 25, 1950, at Buffalo,
New York, before the undersigned Trial Examiner. The General Counsel and
the Respondent were represented by counsel and the UAW by a representative.
The parties participated in the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses , and to introduce evidence bearing
on the issues.
The Respondent moved to dismiss the complaint for lack of proof. The Ex-
aminer reserved ruling at the time and the motion is now denied in accordance
with the findings of fact and conclusions of law set forth below.
G DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All parties were afforded an opportunity to file briefs and proposed findings
of fact and conclusions of law. The General Counsel and the Respondent have
filed briefs which the Examiner has considered.
Upon the entire record in the case and from his observation of the demeanor
of witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a New York corporation, maintains its office and principal
place of business in Buffalo, New York, where it is engaged in the manufacture
of dies and machine tools. In the calendar year 1949, the Respondent purchased
raw materials valued in excess of $150,000, of which amount approximately 10
percent was obtained outside the State. The value of the products manufactured
by the Respondent during the same period exceeded $1,000,000, of which approxi
mately 50 percent was sold and transported outside the State.
I find, and the Respondent concedes, that it is engaged in commerce within
the meaning of the Act.
II. THE ORGANIZATION INVOLVED
The UAW is a labor organization within the meaning of the Act, admitting to I
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Discrimination
1. Preliminary statement and discussion of the issues
Late in 1948, employees Harry R. Lang and John Rafter first discussed or-
ganizing a union among the Respondent's employees, there being no labor or-
ganization at the plant at the time. They did nothing about it, however, until
January 31, 1949, when Lang, Rafter, and several other employees of the Re-
spondent met at Lang's home and at Lang's instigation with a subregional di-
rector of the UAW named Gray to discuss the advisability of forming such a
union. Gray outlined the advantages of a union and Rafter and Lang signed
membership cards in the UAW. At a local bowling alley the following evening,
Lang and Rafter solicited several of the Respondent's employees, including
Jerome Klein, to join the Union. Later that evening, Lang also discussed the
Union with one or two other employees by telephone.
The next day at the plant, February 2, Respondent's Vice-President L. V.
Whistler asked Klein whether anyone had "contacted [Klein] the previous even-
ing about the Union" and whether Lang and Rafter had done so. Whistler dis-
charged Rafter the same day. Several weeks later, on February 25, Whistler
either laid off or discharged Lang.
The complaint alleges that Lang and Rafter were discriminatorily discharged.
Denying discrimination in both cases, the Respondent asserts in its answer that
it discharged Rafter because of "habitual and repeated tardiness and absenteeism
over a long period of time, despite repeated warnings both that his attendance
must greatly improve and that he would be discharged if it did not do so im-
prove." The Respondent's answer asserts that Lang was laid off because of
slack work, particularly in Lang's department, and that the layoff was made in
S. B. WHISTLER & SONS', INC. 7
accordance with seniority principles as they are established in the Respondent's
plant with due regard to the "quality" of Lang's work and his "lack of coopera-
tion."
Risking supererogation, I shall state fundamental principles applicable to
the case. The Respondent could discharge Lang and Rafter for any-reason,
weighty or trivial, except, however, that it could not lawfully discharge them
for the reason that they joined and assisted the UAW, not withstanding any
lawful cause it might have had which, in fact, did not motivate the discharge.
Questions of motive usually are difficult to resolve, particularly where the testi-
mony is in conflict as to material facts. Conflicting words spoken at a hearing,
when marshalled and juxtaposed in chronological sequence and also when ana-
lyzed in terms of rational behavior, frequently themselves demonstrate what
is true and what is not. However, when the testimony is not self-clarifying, it
becomes particularly important for the trier-of-fact to evaluate the testimony
in the light of his impressions of the demeanor of witnesses in order to deter-
mine the intrinsic value of the respective testimony. Thus one should consider,
among other things, whether the witness was evasive or hostile under examina-
tion, did he try to conceal some facts or to obfuscate others, did he testify
consistently as to material facts or facts he considered material, did he assert
as a fact something he later denied to be true, etc. My resolution of the ulti-
mate question of motivation and the related problems of credibility is based on
such observation of the demeanor of witnesses together with the testimony they
uttered.
2. The Respondent's knowledge of Lang's and Rafter's activities
In February 1949, Lang and Rafter were employed as draftsmen in the uni-
versal perforated section of the Respondent's engineering department. The
engineering department also includes the custom die section. Foreman Merz
is in charge of the universal section ; Foreman Hamilton has charge of the
custom die section. Vice-President Whistler does most of the hiring.
Whistler, Merz, and Hamilton denied any knowledge of Lang's and Rafter's
union membership or activities when these employees were separated from
employment. In this connection, the Respondent emphasizes testimony of
Rafter and Lang that they engaged in no such activity in the plant on February
1 and 2 (the period between the meeting at Lang's home and Rafter's discharge)
and testimony of Klein that Klein did not answer Whistler's inquiry on February
2 as to whether Lang and Rafter were the persons who spoke to him about the
Union the evening before. However, in view of Whistler's specific reference
to Lang and Rafter while questioning Klein, as related above, and in view of
the entire record of the ease, I am convinced and find that on and after February
2, 1949, the Respondent knew that Rafter and Lang were promoting the Union
among the Respondent's employees. Also, on the basis of the entire record
including the Respondent's interrogation of job applicants as set forth below,
I find that the Respondent was actively interested in ascertaining the status
of union activities among its employees.
3. Rafter's discharge
Rafter was hired by the Respondent in March 1944. He worked '6 months as
a clerical and then was transferred to the universal section as a draftsman
under Foreman Merz. Rafter had no drafting experience at the time; following
the transfer Rafter enrolled in a local night school to complete a college en-
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trance course. Rafter's starting wage in the universal section was SO cents
an hour. He received several increases and at the time of his discharge his
wage rate was $1.20 an hour. Foreman Merz testified that Rafter was an ex-
cellent draftsman.
The facts attending Rafter's actual discharge on February 2, 1949, are un-
disputed : Whistler called Rafter to his office where Merz also was present.
Rafter admitted to Whistler that he had been late that day and the two pre-
ceding workdays, Whistler thereupon discharged Rafter, stating to Rafter that
he could not tolerate tardiness. There was no mention of Rafter's union activi-
ties. Rafter has not desired reinstatement since May 31, 1949, when he ob-
tained employment elsewhere.
Rafter's tardiness and absences : Whistler testified that Rafter had been
tardy frequently at the beginning of his employment, that Rafter was not late
very often during the next few years after his transfer to the engineering
department in 1944, that Rafter again began coming in late and was absent
for periods of a day or longer starting about February 1.948 and continued such
practices intermittently until his discharge, that Whistler spoke to Rafter six
or seven times over the entire period of Rafter's employment concerning this
matter, that Rafter's conduct was detrimental to the morale of other employees,
and that Foreman Merz complained of the absences and tardiness to Whistler.
Whistler further testified.ihat on the alleged occasion of such a complaint by
Merz approximately 8 or 9 months before the discharge, Whistler told Rafter
in Merz' presence that "I am giving you a good warning . . . I am not going
to tolerate this continued absenteeism and being late" ; Whistler also testified
that on the occasion of a similar complaint by Merz several months before the
discharge, Whistler told Rafter in Merz' presence, "Jonnie, this is your final
warning. The next. time any of this occurs, I will have to let you off."
Merz testified that he had told Rafter several times that Rafter should report
on time but that he never had warned Rafter as to tardiness or absences. Ac-
cording to Merz' version of Whistler's two afore-mentioned conversations with
Rafter as to which Whistler testified, Whistler told Rafter he would have to
improve but did not tell Rafter he would lose his job if tardiness continued.
. Mrs. V. P. Whistler, the Respondent's bookkeeper, testified that Rafter re-
turned late from lunch during the period from late November 1948 through
February 2, 1949, and that Rafter alone was guilty of such infraction. She
testified that she purposely watched for Rafter's tardiness in that respect and
that she did "some detective work on my own that Mr. Whistler didn't even
know about."
In principal documentary support of its contention, the Respondent also
introduced a-schedule of -Rafter's absences and tardiness during the year im-
mediately preceding Rafter's discharge. (This schedule is attached hereto as
Appendix A.)
Rafter impressed the undersigned as an honest, forthright, and intelligent
witness. He admitted that he had come in late on occasions and that he had
been absent; he also admitted telling Whistler on the occasion of his discharge
that he had been late that day and on the two preceding workdays. Rafter
testified that Whistler had mentioned the matter. of tardiness to him but that
Whistler had done so in connection with a discussion stemming from Rafter's
request for 'a wage increase and a complaint by Rafter to Merz that Rafter
was stalemated in the universal section. Rafter denied that either Whistler
or Merz ever had stated that he would be discharged or otherwise disciplined
S. B. WHISTLER & SONS, INC. 9
because of tardiness or absences . I credit this denial and find that neither
Whistler nor Merz has warned Rafter in this matter.
Rafter and Lang credibly testified , in regard to the subject of Mrs. Whistler's
testimony , that Rafter and other identified employees in the universal section
went to the bank and returned together during Friday lunch periods , Friday
being payday , and that Rafter and the others occasionally returned late. Rafter,
therefore , was not alone in these latenesses ; and, however insignificant these
noonday latenesses may have been , it is to be noted that Merz was unable to
testify that lie was aware of them and there is no showing , particularly in
view of Mrs. Whistler ' s own testimony , that before Rafter ' s discharge she
communicated to Whistler the purported results of her sleuthing . If she had
not so reported , and I am unable to find that she did, Whistler 's decision to
discharge Rafter could not have been based thereon. .
I turn now to Appendix A, the compilation of Rafter ' s lateness and absences
which the Respondent originally submitted without qualification as supporting
its position . Properly appraised , this list is not quite so impressive as the unex-
plained entries might indicate . Thus , Rafter credibly testified , and Merz cor-
roborated this testimony in many material respects , that some of the recorded
latenesses were with Merz ' permission for the purpose of taking State Regent
examinations ( February 10, 1.948 ; June 21 and 22, 1948 ; January 26, 27, and 28,
1949 ) ; that the lateness on May 27, 1948, had Merz ' approval ; that some absences
also were with Merz' permission ( May 29, 1948 ; June 1, July 16 and 17, 1948) ;
and that the absence on June 2, 1948 , was unavoidably caused by an automobile
breakdown while returning from Indianapolis where he had gone with Merz'
knowledge and permission.
It is apparent , therefore, and I find that even those absences and tardiness for
which permission had been granted are included in Appendix A. Another cir-
cumstance also to be noted is the concluding statement on the Appendix that
none of the other employees in Merz ' universal section was either late or absent,
except on holidays and vacations, during the period under discussion . Whistler
and Merz both testified to the effect that these other employees had been absent
on occasions other than holidays or vacations.
In summary it therefore appears that , while Rafter had been absent and tardy
on occasion , not all entries . on Appendix A are culpable or otherwise inexcusable;
that Whistler never had warned Rafter in regard to this matter despite his
positive assertions to the contrary ; and that other employees also had been absent
contrary to the statement in Appendix A. Considering these facts in the light
of the entire record , including the general -unpersuasiveness of the Respond-
ent's proof, I am convinced and find that the Respondent did not discharge
Rafter, admittedly an excellent draftsman of 41/, years such experience with the
Respondent , because of the reasons it alleged.
4. Lang's discharge .
The Respondent hired Lang in November 1942, and after 6 months' clerical
work transferred Lang to the universal section as an apprentice draftsman under
Foreman Merz. Although he had no such experience at the time, Lang became an
excellent draftsman according to Whistler, and in mid-1948 the Respondent
transferred Lang to the custom die section under Foreman Hamilton. The cus-
tom die section requires much more skill and experience than the universal sec-
tion, and Whistler testified that Lang was transferred there for training to
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
become Hamilton's assistant. Whistler and Hamilton testified that that after
a while they felt Lang was not adapting himself to custom die work. In this
connection they testified that Lang fell asleep at his job, that he couldn't under-
stand the work, and that he gave the impression of "surliness." Lang was
returned to Merz' section about December 1948 or early January 1949. Hamilton's
testimony indicates that Lang apparently did not have adequate training for
the, (lie -custom -die work.
Merz testified that after Lang's return to the universal section, Lang lacked
interest in his work and was "nowheres near as good" as he originally had been
in the section. Whistler testified that Lang's production was only one-fourth of
what it had been and Merz also stated that Lang's output, after his return to the
universal section, did not equal in quality or quantity that of Weber, one of
the other universal draftsmen ; Merz also testified, however, that he had no
figures to show that Lang's production was reduced during this period of Jan-
uary and February 1949, that he "wouldn't know" whether Lang's work was as
good as that of other men in his department during this period, and that he
never checked the quality of Lang's work. Merz testified further that at no
time after Lang's return to the universal section did he recall instructing or
speaking to Lang about the latter's work.
Lang admitted that he fell asleep on several occasions during the approximately
6-month period in the custom die section ; and while Lang stated that Iianit'ton
had offered suggestions to him, he credibly testified and I find that neither
Hamilton nor Merz had criticized his work.
As in the case of Rafter, there is no real dispute as to the occasion of Lang's
separation from employment: Whistler merely advised Lang that he was being
laid off for lack of work and offered to give Lang a recommendation. Lang has
not desired reinstatement with the Respondent since March 7, 1949.
Conditions of the Respondent's Business in February 1949 and Lang's Seniority
The Respondent adduced testimony to the effect that sales of universal per-
forated equipment had fallen off during the period in question and in this con-
nection it introduced weekly records of such sales together with sales records
for the preceding year. These production records, as abstracted below, are on
a cumulative weekly basis. The stated percentage refers to the drop in sales
as compared with the same period of the preceding year.
Week ending- Yearly total Week ending- Yearly total Percent
Dec. 31,1947___________________ $964,584.13 Dec. 31, 1948________________ $924, 265.60 4§lo
Jan. 8,1948 --------------------- 22, 741. 11 Jan. 8, 1949__________________ 14,314.97 37
Jan. 15,1948 -------------------- 65, 847.39 Jan. 15,1949_________________ 27, 716.06 58
Jan. 22, 1948____________________ 86,953.46 Jan. 22,1949_________________ 42, 094.37 52
Jan. 29,1948 -------------------- 100, 528.13 Jan. 29, 1949_________________ 57,769.17 45
Feb. 5, 1948____________________ 123, 592.09 Feb. 5, 1949_________________ 69,045.08 44
Feb. 12,1948 ------------------- 140,351.98 Feb. 12, 1949________________ 85, 469.48 39
Feb. 19, 1948_________,__________ 159, 624.40 Feb. 19,1949 ---------------- 07, 317.26 39
Feb. 26,1948 ------------------- 180, 677.33 Feb. 26, 1949________________ 113,406.02 39
Mar. 5,1948 -------------------- 201, 420.03 Mar. 5, 1949----------------- 149, 385.86 25
Mar. 12,1948 ------------------- 226,725.34 Mar. 12,1949 ---------------- 166, 182.53 22
Mar. 19,1948 ------------------- 253,457.45 Mar. 19, 1949---------------- 186, 558.89 26
Mar. 26,1948 ------------------- 266, 977.85 Mar. 26,1949 ---------------- 204, 095.87 24
Apr. 2, 1948-------------------- 285, 392.09 Apr. 2, 1949_________________ 215, 945.80 25
Apr. 9, 1948-- ------------------ 320, 013.21 Apr. 9, 1949_________________ 227,938.55 29
The Respondent also introduced a schedule of "plant personnel " which shows
a gradual reduction from 154 employees on June 21 , 1948, to 106 employees on
S. B. WHISTLER & SONS, INC. 11
February 26, 1949. This schedule shows in addition, that on February 1, 1949,
the plant workweek was reduced from 48 to 45 hours.
The General Counsel contends, however, that such reductions in plant per-
sonnel and in sales of universal equipment do. not reflect either the personnel
needs or the work output of the universal section where Lang was employed.
The' universal-section under Merz is an engineering-not a manufacturing-
department. It is a small section, consisting of 5 or 6 draftsmen on February
1, 1949, as compared with the plant personnel of 130 on that date. The universal
section not only does the drafting on jobs which are ultimately manufactured
as universal perforated equipment, but it also prepares layouts and quotations
for submission to prospective customers. Merz admitted that "most of the
engineering or drafting" in his department "went into the proposal of sales,"
that some of these submittals involve a great deal of time in preparation, and
that many of them do not result in sales. The production figures of universal
equipment set forth above do not include the amount of time spent in preparing
layouts and quotations which do not result in sales. The General Counsel's
contention is therefore well founded, and I find that the sales figures of universal
equipment do not reflect the work situation in the universal section and, there-
fore, do not show a reduction of work in Lang's section. Similarly, while there
is a direct connection between production statistics and statistics as to manu-
facturing personnel, I also find that the reduction of plant personnel-most
of whom are presumably engaged in actual manufacturing operations-also
does not demonstrate a need for personnel reduction in the universal section.
Indeed, as one of the principal functions of the universal section is to prepare
layouts and quotations for the purpose of soliciting new accounts or additional
orders, it is also consistent with fundamental business practices and reasonable
to assume that the universal section would redouble, not curtail, its efforts
in this respect to recoup its falling market. The Respondent nevertheless failed,
particularly in the light of this economic posture of the case-which, incident-
ally, the General Counsel called to Respondent's attention at the hearing-to
bring forward convincing proof that. work in the universal section also was
slackening. Whistler did testify that the Respondent had transferred some
of the more skilled draftsmen from the custom die section to the universal
section and that, after Rafter's layoff, it laid off two other universal engineers.
Merz testified at one point that he recalled no layoffs in his section other than
Lang's and Rafter's. The record does show, however, that one employee,
Peck by name, was hired as a replacement for Rafter early in February and
that Peck was. laid off a few weeks later, allegedly for lack of work, according
to the Respondent. On cross, examination, -.Herz testified that he didn't know
and would deny that his section worked from 471/2 to 561/2 hours a week for a
period of 6 to 8 weeks beginning March 18, 1949. The Respondent, however
did not, by appropriate evidence, show the weekly working hours in the universal
section after February 26, 1949.
Under all the circumstances, I am not. persuaded that work in the universal
section had slackened and that there was a need for personnel reduction in that
section on February 25, 1949.
Having thus found that no need existed for personnel reduction in the uni-
versal section, it is unnecessary to consider the subsidiary question whether
Lang's selection for layoff was made on the basis of seniority and ability.
Ilowever, even in regard to the evidence on this issue I received certain impres-
sions which fortify my ultimate conclusions.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's answer stated that it selected Lang for layoff on the basis,
in part, of "seniority principles as, they are established in the Respondent's
plant." At the hearing, however, Whistler stated that "We don't go on length
of service. We go on ability" ; and the Respondent also stated that the. matter
of seniority was irrelevant to the case. Then, when later asked to explain the
meaning of "seniority" in its answer, the Respondent stated that it was referring
to seniority "which is a combination of length of service, ability to do the. job,
cooperativeness and so forth" and to "departmental seniority defined the same
way.'
Merz testified that the following men comprised his universal section on
February 2, 1949: FIavas (who is Merz' assistant), Peck, Weber, and Lang.
At one point at the hearing he testified that an employee named Roman was
then working in the office ; later he testified that Roman was in his. section at
the time in question. Merz testified that only Havas had greater seniority than
Rafter as a universal draftsman but that Peck alone had less over-all seniority.
At one point Whistler testified that Peck was laid off after Lang; later he testi-
fied that Peck's layoff occurred earlier.
Lang did not make the grade in the custom die section. This was attributable
essentially, as Hamilton indicated, to insufficient training for the much more
difficult job. In any event, however, the respondent did give glowing tribute to
Lang's pre rious 5 years work in the universal section. Although the Respondent
asserts that upon Lang's return he was "nowiiheres as good," in my opinion the
Respondent has' failed to substantiate this depreciating conclusion with testi-
mony which I consider to be reliable and persuasive. It is also difficult to
ascertain from the record exactly what "seniority principles," if any there
be, are established at the Respondent's plant. Suffice it to say, I found the
testimony regarding seniority related, in unpersuasiveness, to the Respondent's
testimony on other disputed issues. I am unable to find, even assuming a need
for layoff, that Lang's selection was motivated by the reasons asserted by the
Respondent.
5. Conclusions
The Respondent asserts that until the present case it had an unblemished
record so far as alleged unfair labor practices are concerned; it urges this cir-
cumstance as showing, apparently, that it is not the kind of employer who
would engage, and that it therefore did not engage, in the unlawful conduct
alleged in this case. I have considered this circumstance and must nevertheless
conclude, reluctantly, that in my opinion mere happenstance does not satis-
factorily explain the separation from employment of both Lang and Rafter so
soon after they engaged in union activities ; nor does coincidence explain why
in each case the reasons offered by the Respondent were, as I have found, not
the actual motivation for its conduct.
Under all the circumstances and upon the preponderance of the evidence, I
conclude that the Respondent precipitately discharged Lang on February 25,
1949, and Rafter on February 2, 1949, because of their activities in behalf of
the UAW ; and I find that the Respondent thereby discriminated in regard to
their hire and tenure of employment, discouraging membership in the Union, -
and that by such conduct that Respondent also interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act. This conduct violates Section 8 (a) (3) and 8 (a) (1) of the Act.
S. B. WHISTLER & SONS; INC.
B. Interrogation
13
In addition to Whistler's questioning of Klein as related above, Whistler
admittedly inquires and has inquired of applicants for employment "What labor
organization do you belong to, if any?" Whistler denies that be seeks this in-
formation for an unlawful purpose ; he asserts, rather, that such information
better enables the Respondent to pass on the applicant's- qualifications and to
determine the applicant's wage classification. In this connection, the Respond-
ent also testified that it hired an applicant in March 1950-after this case
arose=despite the fact that the application form of this applicant showed him
to be a member of the UAW,,the charging party in this case.
That it is per se unlawful to interrogate job applicants concerning their
union membership and, as in the case of Klein, to interrogate employees con-
cerning union activities and identity of other union members and adherents is
well established. Standard-Coosa-Thatcher Company, 85 NLRB 1358; Houston
and North Texas Motor Freight, 88 NLRB 1462; Jacksonville Motors, Inc., et at.,
88 NLRB 181; Ozark. Dann Constructors,. et at., 86 NLRB 520. Accordingly, the
Respondent's explanation, even if true arguendo, does not, mitigate the offgnse
and I find that by such interrogation of Klein and applicants for employment,
the Respondent has interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7, thereby violating. Section 8
(a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection' with the operations described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States and such of them as have been found to be unfair labor practices
tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
In order to effectuate the policies of the Act, I will recommend that the Re-
spondent cease and desist from the unfair labor practices in which it has been
found to have engaged. I also will recommend that the Respondent make
Rafter and Lang 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 141oney equal to the amount he would normally have earned as wages
from the date of his discharge (February 2, 1949, in the case of Rafter; Febru-
ary 25, 1949, in the case of Lang) to, the date on which he no longer desired
reinstatement (May 31, 1949, in the case of Rafter; March 7, 1949, in the case
of Lang), less his, net earnings during this period. As neither Rafter nor Lang
desire reinstatement, their reinstatement is not recommended.
In view of the nature of the unfair labor practices committed, particularly
the discriminatory discharges, I will also recommend, in order to make effective
the interdependent guarantees of Section 7 of the Act, that the Respondent
cease and desist from, in any other manner, infringing upon the rights guaran-
teed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. International Union, United Automobile , Aircraft and Agricultural Imple-
ment Workers of America , CIO, is a labor organization within the meaning of
Section 2" ,( 5) of the,Act.
2. By discriminating in regard to the hire and tenure of employment of John •
Lang and Harry R Rafter , thereby discouraging membership in a labor organi-
zation, the Respondent has engaged in unfair labor practices within the mean-
ing of Section 8 (a) (3) of the Act.
3. By interfering with , restraining , and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act , the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
4. The aforesaid unfair labor practices are •unfair - labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommended Order omitted from publication in this volume.]