Schott Metal Products Co.

National Labor Relations Board - Board Decisions

Aug 3, 1960

128 N.L.R.B. 415 (N.L.R.B. 1960)

SCHOTT METAL PRODUCTS COMPANY 415
Conclusions and Recommendations
Upon the basis of the foregoing findings of fact , and upon the entire record in
this proceeding , including the more detailed computations as set forth in the Appen-
dix attached hereto, I recommend that the Board adopt the findings of fact made
herein and issue such decision or order as may be appropriate , requiring and direct-
ing Aerosonic Instrument Corp., its officers , agents, successors , and assigns to pay
Jame Barfield the sum of $ 13.40 ; John Buehler the sum of $433.23 ; Ewell Good-
pastor the sum of $759.27 ; Dorothy Hall the sum of $515 .04; Harry V . Miller the
sum of $50 . 88; Violet Rogers the sum of $ 118.08 ; and Helen Niederhelman the sum
of $704 .94. The moneys to be paid each named individual shall, of course, be
subject to the usual withholding taxes and payments required by law.
Schott Metal Products Company and International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Milk & Ice Cream Drivers & Dairy Employees
Union , Local 497. Case No. 8-CA-1970. August 3, 1960
DECISION AND ORDER
On March 16, 1960, Trial Examiner Albert P. Wheatley 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record' in
the case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, with the following additions 2
The Respondent excepts, inter alia, to the Trial Examiner's failure
to find that certain employees engaged in such strike misconduct as to
justify denying them reinstatement. In its brief to the Board in sup-
port of its exceptions, the Respondent alludes to three incidents in-
volving two employees, Speck and Muzzy. The incidents concern
1 After the Intermediate Report had issued , Respondent moved to reopen the record for
the purpose of taking additional evidence relating to the date of the Union 's organiza-
tional campaign . As the Respondent has not made any showing as to why the additional
evidence could not have been offered at the hearing by the exercise of due diligence, we
do not believe that a reopening is warranted . Mi88ouri Tranalt Company, et al., 116
NLRB 587, 589-590 . The motion is denied.
.The Respondent 's request for oral argument is also denied as the record , exceptions,
and brief adequately present the issues and positions of the parties.
128 NLRB No. 54.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the following of nonstriking employees; the directing of profane
language at a nonstriker who crossed the picket line; and the threaten-
ing of this nonstriker.
James Evans, a shipping clerk who continued to work during the
strike, testified that striking employees Speck and Muzzy followed
his car to a bank in Akron. Evans parked and the two followed him
on foot. When Evans looked around, Speck and Muzzy were headed
in another direction. Evans said he later parked his car in an alley
and observed Speck and Muzzy driving up and down the street, ap-
parently looking for him, before they finally drove off. Russel
Kreiner, another nonstriking employee, testified that a station wagon
occupied by Speck and Muzzy followed him one day along a highway
while he was carrying a load of parts to the Respondent's plant.
Kreiner testified that when he pulled into a gas station and parked
Muzzy removed a tarpaulin from the truck to see what was being
carried. Kreiner stated that when people from the gas station came
outside, Speck and Muzzy got in their car and drove off. James Evans
also testified that everytime he drove through the picket line Muzzy
and Speck would shout, "Go ahead and work you scabbing sons-of-
bitches . . . ." Evans further testified that on one occasion Muzzy
told him, "I'm going to get you one of these days," and that Speck
said he was going "to whip" him.
In agreement with the Trial Examiner, Chairman Leedom and
Member Jenkins find that these incidents detailed above do not involve
such misconduct as to warrant a denial of reinstatement to these em-
ployees. They are of the opinion that the incidents involved are either
lacking in probative weight or are isolated in character. Member
Rodgers, in consideration of both the nature and the extent of Speck's
and Muzzy's conduct, is of the opinion that reinstatement of these
two employees should not be ordered. Moreover, as these two em-
ployees began using profane language on June 16, 1959, the date the
picket line was established, Member Rodgers would not grant them
backpay beyond that date.
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, Schott Metal
Products Company, Akron, Ohio, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Milk
& Ice Cream Drivers & Dairy Employees Union, Local 497, or any
other labor organization of its employees, by discriminating in regard
SCHOTT METAL PRODUCTS COMPANY 417
to their hire or tenure of employment, or any term or condition of
employment.
(b) Requiring applicants for employment to answer questions con-
cerning their union membership in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act.
(c) Interfering with, restraining, or coercing employees in the ex-
ercise of their rights to self-organization, to form labor organizations,
to join or assist International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Milk & Ice Cream Drivers
& Dairy Employees Union, Local 497, 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
or all of such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Robert E. Cadwell, Robert D. Creswell, Basil Duffield,
David R. Kelly, John R. Keys, Richard A. Miller, Ronald W. Muzzy,
Thomas L. Phillips, Ralph H. Speck, and Chelsie White immediate
and full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights and privileges
previously enjoyed.
(b) Make whole Robert E. Cadwell, Robert D. Creswell, Basil
Duffield, David R. Kelly, John R. Keys, Richard A. Miller, Ronald
W. Muzzy, Thomas L. Phillips, Ralph H. Speck, and Chelsie White
for any loss of pay they may have suffered by reason of discrimi-
nations against them.3
(c) Preserve and, upon request, make available to the Board or
its agents, for examination or copying, all payroll records, timecards,
social security payment records, employees' income tax report records,
and all other records and reports necessary or useful to determine the
amount of moneys due under the terns of this Order.
,(d) Post at its place of business in the vicinity of Akron, Ohio,
copies of the notice attached hereto marked "Appendix A."' Copies
of such notice, to be furnished by the Regional Director for the
Eighth Region, shall, upon being duly signed by a representative of
3 These employees shall be made whole by payment to each of them of a sum of money
equal to the amount he would have earned from the date of the discrimination to the
date of the offer of reinstatement, less net earnings, to be computed on a quarterly basis
in the manner established by the Board in F W. Woolworth Company , 90 NLRB 289
4In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a.Decree of the United States Court of Appeals , Enforcing an, Order."
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, be posted upon receipt thereof and maintained for a
period of 60 consecutive days thereafter, in conspicuous places, in-
eluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Eighth Region, in writing,
within 10 days from the date of this Order, what steps 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 Labor Manage-
ment Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Milk & Ice Cream Drivers & Dairy Employees Union,
Local 497, or any other labor organization of our employees, by
discriminating in regard to their hire or tenure of employment or
any term or condition of employment.
WE WILL NOT require applicants for employment to answer any
questions concerning their union membership in a manner consti-
tuting interference, restraint, or coercion in violation of Section
8(a) (1) of the Act.
WE WILL NOT interfere with, restrain, or coerce employees in the
exercise of their rights to self-organization, to form labor organi-
zations, to join or assist International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Milk & Ice
Cream Drivers & Dairy Employees Union, Local 497, or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mu-
tual aid or protection, as to refrain from any or all of such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959:
WE WILL offer to Robert E. Cadwell, Robert D. Creswell, Basil
Duffield, David R. Kelly, John R. Keys, Richard A. Miller, Ron-
ald W. Muzzy, Thomas L. Phillips, Ralph H. Speck, and Chelsie
White immediate and full reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority
or other rights and privileges previously enjoyed.
SCHOTT METAL PRODUCTS COMPANY 419
WE WILL make whole Robert E. Cadwell, Robert D. Creswell,
Basil Duffield, David R. Kelly, John R. Keys, Richard A. Miller,
Ronald W. Muzzy, Thomas L. Phillips, Ralph H. Speck, and
Chelsie White for any loss of pay they may have suffered by
reason of discriminations against them.
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of the above-named Union, or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
SCHOTT METAL PRODUCTS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(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 RECOMMENDATIONS
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before the duly desig-
nated Trial Examiner in Akron , Ohio, on December 7, 8, 9, 10, and 11, 1959. The
issues litigated were whether Schott Metal Products Company, herein called
Respondent , violated Section 8(a)(1) and ( 3) of the National Labor Relations
Act, as amended , herein called the Act. After the hearing the parties filed briefs
which the Trial Examiner has considered.
Upon the entire record , and from his observations of witnesses , the Trial Examiner
makes the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
- Schott Metal Products Company , an Ohio corporation , engages in the manu-
facture and distribution of automobile body parts near the city of Akron, Ohio.
It annually ships to points and places outside of Ohio products valued in excess of
$50,000 . In connection with its business Respondent , during the times material
herein , employed approximately 67 nonsupervisory employees-50 in its production
department , 13 in its shipping department , and 4 office workers. The complaint
alleges, and the answer admits, that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America, Milk & Ice Cream Drivers & Dairy Employees Union , Local 497,
herein called the Union , is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The primary issues herein are: (1 ) whether Respondent unlawfully interrogated
and threatened employees ; and (2 ) whether Respondent discriminatorily discharged
10 employees ( Robert E . Cadwell, Robert D . Creswell , Basil Duffield , David R.
Kelly, John R. Keys, Richard A . Miller, Ronald W. Muzzy, Thomas L. Phillips,
Ralph H . Speck , and Chelsie White).
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The facts
Respondent's business increases during the warm months of the year and its busy
season is during the spring and summer months-the "slump season is right before
Christmas and it slumps until the weather gets warm in the spring." In April and
May 1959 Respondent became backlogged to a considerable extent in its shipping
department and to a less degree in its production department. About this time
Respondent increased its staft by hiring new employees. Thereafter its backlog
gradually diminished. Respondent made its peak number of outgoing shipments dur-
ing the first 2 weeks of June. However, with the increase in number of shipments
came an increase in number of errors which was out of proportion with the in-
crease in shipments and on June 10, 1959, an incident occurred which Respondent
contends was the "clincher" (see Honolulu Star-Bulletin Ltd. v. N.L.R.B., 274 F.
2d 567 (C.A.D.C.)) causing the discharges involved herein.
On Wednesday, June 10, 1959, William R. Bacon, a wholesale distributor of auto-
mobile body panels in Cleveland, Ohio, and one of Respondent's principal customers,
visited Respondent's place of business and reported to Respondent's top officials.
(Elmer Schott, Respondent's president, and Sam Schott, Respondent's secretary
and treasurer) that he (Bacon) was receiving overshipments amounting to many
thousands of dollars.' Elmer Schott then directed his son (Sam Schott) "to do
something about this and right now, at once, as quick as we could . . . and told
him that we would have to get into the warehouse [shipping department] and
straighten the thing out." Within minutes after Bacon's complaint Sam Schott
addressed the shipping department employees.
In his address to the shipping department employees, Sam Schott
Told them all about the situation that Bacon had and our other complaints.
I wanted it stopped immediately or we were going to clean house completely
and that everything would go and that we would start over. I told them to go
back and to straighten themselves out and see if they couldn't get this simple
thing of counting and putting labels on correctly. Then I got Mr. Carl [shipping
clerk Arthur Carl]. We walked out on the front apron by the shop and I told
him [Carl], "I was going to have to get rid of everybody in the warehouse in-
cluding him, unless it could be corrected."
On Thursday afternoon, June 11, 1959, Respondent's president, Elmer Schott,
left the vicinity of Akron and did not return until Sunday evening, June 14, about
8 p.m. Meanwhile Sam Schott and shipping clerk Arthur Carl (a supervisor)
checked shipments and found that errors were still being made. Sam Schott testi-
fied: "I found a lot of errors that were just going through the same way that they
were before. It seemed like it was idle talk when I gave them a lecture [on
June 10]."
From the record as a whole, an inference may be warranted that the numbers
of errors decreased substantially after Sam Schott's address to the shipping depart-
ment employees. However, in the light of the entire record it is believed that a
resolution of this matter need not be made herein.
On Friday, June 12, 1959, the employees of Respondent received their regular
weekly pay and a summary of a profit-sharing plan that had been adopted by
Respondent on June 8, 1959, and had been in preparation for many weeks prior
to that date. In the summary, under the heading "Who Is Eligible Under The
Plan?" it is stated-
Every employee of the Company, including certain part-time employees em-
ployed upon a regular basis, but excluding employees covered under any union
agreement. When the term "employee" is used hereafter, it is used in this sense.
During the evening of Friday, June 12, 1959, six of Respondent's employees
(Keys, Speck, Miller, Cadwell, Creswell-dischargees herein-and Clifford (Uncle
Benny) Johnson, and during the morning of the following day, five of Respondent's
employees (Phillips, Muzzy, Kelly, Keys 2-dischargees herein-and an unnamed
employee) met with the Union's representatives and discussed organizing Respond-
ent's place of business.3 Five of these employees (Speck, Miller, Cadwell, Creswell,
i Prior to this date Bacon had complained about this matter to subordinate officials of
Respondent but this was the first time it was brought to the attention of Respondent's
top officials
2 Keys had also attended the meeting on Friday.
"Prior to these dates there were casual conversations as to the desirability of having a
union but these meetings were the kickoff meetings at which campaign plans were made.
SCHOTT METAL PRODUCTS COMPANY 421
and Phillips) were employed in Respondent's shipping department. Keys, Johnson,
Muzzy, and Kelly were from the production department. Each of these employees,
with the exception of Clifford (Uncle Benny) Johnson and the possible exception
of the unnamed employee, signed union authorization cards on either June 12 or
13. Johnson signed one on June 15. White-another dischargee herein and a
shipping department employee-signed a card while at Respondent's place of busi-
ness on Saturday, June 13. Duffield-the remaining dischargee herein and a pro-
duction department employee-signed a card after working hours on Monday,
June 15.4
On Sunday evening, June 14, Respondent's president, Elmer Schott, returned
from out of town. That evening, he conferred with his son (Respondent's secretary
and treasurer), Sam. According to Elmer Schott:
Q. Tell us what Sam reported to you and what you did or said.
A. At the time he told me that, "I had some trouble with John Kridler and
he had quit." He had paid him off. Which I didn't like at that time because
I considered him a fairly good worker. So I had asked him what had happened
in the shipping while I was gone.
Q. Yes.
A. He said, "As far as he could find there was no change. That things were
going on the same as they had before he had talked to them."
Q. Did you make any decisions at that time as to what you were going to
do about that?
A. Yes. I had a partial list of the people that we figured that we would
have to let go. We sat down and we looked this list over and we added a
number of names to it.
Q. I see. Was it your decision to let these people go the following day?
A. That's right.
Q. Now, what happened the following day?
A. The following morning I was in the office and I started at the top of the
list and started making out checks to let them go. As I made out the checks
I gave the checks to the foreman, Fred Jacobs, told him to give the men their
checks and let them go.
Elmer Schott testified further that the partial list had been "made out earlier in
the week before I left" (the vicinity of Akron) and was a list of the "men that were
recommended by the foremen to be let go prior to this." The record does not reveal
the names appearing on the list.
Elmer Schott testified at length as to why the dischargees herein from the shipping
department rather than other employees in the shipping department were singled
out for discharge but, to put it charitably, his testimony with respect to this matter
is far from clear and does not stand up under analysis. Sam Schott's testimony is
of little help with respect to this matter. However, from the total evidence with
respect to this matter, it appears probable that the relative seniority standing of em-
ployees in the shipping department was taken into consideration in determining who
from that department would be discharged.
Elmer Schott's explanation for discharging people not in the shipping department
was because prior to this time they (production department employees-not other-
wise identified) had been recommended for discharge by their foreman (when, by
whom, and for what does not appear) and "because I had a talk with my son and
we decided that while we were at it we might just as well get them out too " Sam
Schott's testimony 'is silent with respect to any such conversation. In fact, his
testimony concerning the determinations and reasons for the discharges herein is
inconsistent and of little or no help in determining the factual situation involved
About 6 a.m., on Monday, June 15, 1959, Plant Foreman Fred W. Jacobs was
summoned to the office and told by Respondent's president, Elmer Schott, "We are
going to have to leave some of this new help go." Jacobs was then instructed to
discharge the employees and was handed their final paychecks. All of the checks
were not given to Jacobs at one time. Five were given to him at that time. The
record does not reveal the names of the five. The others were supplied throughout
the day. Jacobs then contacted the employees involved herein and notified them
of their discharge.
4It was stipulated at the hearing before the Trial Examiner that seven employees, in
addition to those named above, signed union authorization cards between June 11 and 17,
1959, both dates inclusive
577684-61-vol. 12 8-2 8
-422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John R. Keys
At the beginning of his shift on Monday morning, John R. Keys (a production
.department employee since June 1958) solicited signatures on behalf of the Umon.5
Within 30 nunutes (about 7:30 a.m.) he was discharged by Foreman Jacobs. Jacobs
did not give Keys a reason for the discharge.
At the hearing before the Trial Examiner, Respondent assigned a number of
reasons for the discharge of Keys-bad absence and tardiness record, accident prone,
work unsatisfactory, musician at night and not interested in job, and because he
threatened to strike Respondent's president (Elmer Schott). However, it is readily
apparent from the record as a whole, especially from Sam Schott's testimony, that
his absence and tardiness record and his being a musician during off hours did not
play a part in his discharge and were mere afterthoughts. According to Sam Schott,
Keys was a good worker until he had an accident resulting in a loss of two fingers
,(on September 8, 1958) but thereafter his production rate and his attitude went
,way down. No details with respect to these matters were supplied. Elmer Schott's
testimony is to a similar effect. However, Elmer Schott added that less than a week
before Keys' discharge, both Foreman Jacobs and Sam Schott recommended that
Keys be discharged. Here again the record is barren concerning details. Further-
more, neither Jacobs nor Sam Schott corroborated this testimony. Nevertheless,
Keys did admit that on several occasions he was prodded to increase his production
and that the week before he was discharged, Foreman Jacobs prodded him about
his low production rate and at that time he (Keys) lost his temper and referred
to Respondent's president (Elmer Schott) as "a dirty little bastard." Keys further
testified (without contradiction) that on Saturday, June 13, Foreman Jacobs com-
plimented him on his attendance record (getting in on time ) and production rate
and told him that if he kept it up he (Jacobs) would see Elmer Schott "about getting
you a raise."
Robert Falcone
Robert Falcone, a production worker who had not been active on behalf of the
Union, was discharged by Foreman Jacobs about 7:30 a.m., on June 15, 1959, and
was told his production was not "up to par." Falcone , an employee since August 15,
1956, told Jacobs that this was not the true reason but that it was because "some
way or another" Respondent "hooked" him (Falcone ) up with the union activities,
although he had no part in such activities.
On June 16 , Respondent sent for Falcone and offered him reinstatement . Harold
Kriener, the night shift foreman who went after Falcone, told him (Falcone) that
Respondent 's president wanted to see him (Falcone ) about giving him his job back
and that Respondent 's president had said that Falcone "got fired for being with this
and you wasn't." During the course of the interview with Respondent 's president,
Elmer Schott indicated that at the time of Falcone 's discharge he (Elmer Schott)
thought Falcone was connected with the union activities , but that he knew better
"now" and stated that before he "would let the Union in he would close the place
up and go fishing ." 6 During the course of this interview, the fact that Falcone was
on probation for the crime of "breaking and entering" and needed a job to stay on
probation was also discussed . Falcone was reinstated (without loss of pay) and
reported back to work the next morning , June 17, 1959.
Ronald W. Muzzy
On Monday, June 15 , Ronald W. Muzzy , a production department employee
since April 27, 1959 , and one of the spearheads of the union movement at Respond-
ent's place of business , was discharged at the beginning of the shift. According to
Muzzy,7
So I went up to the plant and I went inside and I punched my card . I sat on
the drum there waiting for time to start . Fred [Jacobs] walks up to me and he
asked , "If I had any tools or any clothing?" I said , "No." He handed me my
check . I asked him , "What's it about?" He said , "You know ." I says, "What
s Keys and Muzzy were the spearheads of the union movement.
9 According to Elmer Schott, the remark about going fishing was in response to a re-
mark by Falcone that the picket line would stop shipping and was to the effect that in
that event Respondent could go fishing . Falcone denied this version of the incident. The
Trial Examiner, on the basis of observations of witnesses and analysis of the record,
credits Falcone 's version and finds the facts to be as stated above.
' Foreman Jacobs did not give his version of this matter.
SCHOTT METAL PRODUCTS COMPANY 423
do you mean?" He said, "Well, we're just weeding out the guys that aren't doing
so good and things are slacking up." I said, "Well, tell me another story." He
said, "What are you doing, calling me a liar?" He said, "Do you want to make
something out of it?" I said, "No, not on the shop's property." Then he put
his arm around me and he pats me on the back and he says, "You know, Muzzy,
personally I hate to see you go." I just started to laugh. Then he gave me a
dirty look and then he followed me out of the plant. I walked out and yelled,
"This is nothing but a slave labor camp."
At the hearing before the Trial Examiner, Respondent contended that Muzzy
was discharged for sleeping on the job, leaving company premises without per-
mission, drinking beer on company premises, and destroying company property.
The reasons given on Respondent's records are: "Drinking on the job, argumentative,
unsatisfactory work." Respondent's evidence with respect to this matter consists
primarily of testimony by Sam and Elmer Schott and testimony by Night Shift
Foreman Harold Kreiner.
Sam Schott testifed that the day before Muzzy was discharged, or the same day,
he observed beer cans on the parking lot and upon inquiry found out (from Night
Shift Foreman Harold Kremer) that Muzzy had been "drinking beer" and that
this information together with information that Muzzy had broken some windows
prompted him to direct Kreiner to discharge Muzzy. Sam Schott testified further
that Muzzy was shifted from the first to the second shift (about June 1, 1959) be-
cause he was a "problem" and implied that this shifting was not at Muzzy's request,
but was because he was not performing work satisfactorily. Upon being pressed,
Sam Schott admitted that he did not know in what respects Muzzy was " a problem."
Elmer Schott testified that Muzzy was shifted from the first to the second shift
against his will but because he was needed more on the second shift than on the
first. Elmer Schott testified further that Muzzy was discharged because of destroy-
ing company property and drinking and sleeping on the job and that he learned
about these acts on the part of Muzzy from his (Elmer Schott's) son "a week before
we let him [Muzzy] go." Elmer Schott testified further that he never told any
employee that he could not bring liquor on the premises.
Night Shift Foreman Kreiner testified that Muzzy was transferred at his own
request from the first to the second shift because he "couldn't get up in the morning
on time." Kreiner testified further that about the second night Muzzy was on the
second shift, he (Kreiner) found Muzzy "asleep" in the restroom and "throwed
water on him' and told him "we wouldn't put up with that. We had work to do."
Kreiner testified further that on some occasion thereafter it was reported to him that
Muzzy was asleep in the shipping department. Kreiner testified further that John
Selelyo reported to him (Kreiner) that he (Selelyo) and Muzzy had drunk beer in
Muzzy's car on the parking lot. Kreiner testified further that Muzzy had deliber-
ately broken some windows. Kreiner did not specify when this occurred but the
inference from his entire testimony is that it occurred about 2 weeks before Muzzy
was discharged and that he (Kremer) reported this matter to Elmer Schott who
decided not to do anything about it. Kreiner testified further that on the Friday
immediately preceding Muzzy's discharge , Sam Schott inquired about the broken
windows and upon being told (by Kreiner) that Elmer Schott had decided not to do
anything about this matter , said , "I'll take care of that" and went away "mad."
Muzzy testified that on one occasion , "a couple of weeks or more" before he was
discharged, he left Respondent's property without "punching out and brought
back six cans of cold beer " and drank the contents of the one can "during the lunch
hour in my car." Muzzy testified further that on several occasions he left Re-
spondent's property without "punching out" and that he was never criticized for this.
Muzzy testified further that Respondent "found the beer can the next morning in
the parking lot" but that "to this day" nobody from the Company said nothing [sic]
to him about the incident.
Muzzy admitted that he was caught "nodding" in the restroom and had water
thrown on him, but testified the incident was treated in a jocular vein and that he
was not reprimanded therefor. Muzzy also acknowledged that he was caught appar-
ently sleeping in the shipping department. He testified he was not "asleep" and when
this became apparent ( at the time of the incident ) it was treated in a jocular vein
and he was not reprimanded therefor. Muzzy also acknowledged that about 2 weeks
before he was discharged he fell asleep during his lunch period and that Night Shift
Foreman Kreiner woke him up about "a minute late" and said "come on, you're late."
,Muzzy testified that at least a week or 10 days before he was discharged he got
"mad" because of the duties assigned to him that night and while emotionally worked
up, broke some windows, that the next day he offered to pay for the damage done
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when told by Kreiner that Elmer Schott was "pretty well mad about it" but that
Kremer said, "No, just forget it. Just take it easy now-be careful where you're
throwing that scrap around."
Richard A. Miller
While at Respondent 's place of business on Saturday , June 13, Richard A. Miller,
a shipping department employee since May 1, 1959, who had signed a union authori-
zation card on June 12, endeavored to persuade other employees to become active
on behalf of the Union.
Between 8 and 9 a.m. on Monday, June 15, Miller was discharged by Foreman
Jacobs who told Miller the reason for the discharge was unsatisfactory work. No
details were given.
At the hearing before the Trial Examiner , Respondent contended that Miller's
late and absence record was "just intolerable ," that Miller "just day dreamt all of the
time" (was too slow and loafed on the job), and that because of this and because
he was one of the junior (junior in seniority ) employees that "shipped overages"
he was discharged.
As a witness for the General Counsel , Sam Schott testified he was not familiar
with the Miller situation , that he was not "familiar with Miller at all ," and that his
knowledge about Miller's discharge was limited to Respondent 's records which
showed he was discharged because his "work became very unsatisfactory , too slow,
loafing on the job ." Sam Schott further testified that tardiness and absenteeism
had nothing to do with the discharges involved herein . As a witness for Respond-
ent, Sam Schott testified that on one occasion ( when does not appear ) he (Sam
Schott ) observed Miller just standing around with an order for merchandise for
about an hour without pulling the merchandise called for by the order.
Elmer Schott testified that on several occasions he observed Miller "just walking
around and not doing anything " and that a week before his (Miller 's) discharge
Shipping Clerk Arthur (Louie) Carl recommended that Miller be discharged.
Carl corroborated Elmer Schott.
Miller testified , without contradiction , that he was never criticized regarding
the way he did his work, although on one occasion (when does not appear in the
record ) Elmer Schott looked at his timecard and said "3 minutes late. Do you
know how many hours it would amount to if everyone was 3 minutes late?"
Robert E. Cadwell
Between 10 and 11 a in. on June 15, 1959, Robert Cadwell , a shipping department
employee since April 24, 1959 , who had signed a union authorization card on June
12 and had solicited members on June 13 or 15 , was given his final paycheck and
told by Foreman Jacobs he "was sorry it didn't work out."
At the hearing before the Trial Examiner , Respondent contended that Cadwell
was discharged because he was one of the junior (junior in seniority ) employees
responsible for overshipments.
Cadwell helped load Bacon 's (the wholesale distributor from Cleveland who
complained about overshipments ) truck and was one of those to whom Bacon
complained about overshipments before he (Bacon ) finally appealed to Respond-
ent's top officials. Cadwell admitted that he was "criticized a time or two for
stamping panels wrong" and that the last occasion occurred about a week before
he was discharged. Shipping Clerk Arthur (Louie) Carl testified he warned Cadwell
two or three times about mislabeling panels and that the last warning was made
about 11/2 weeks before Cadwell was discharged.
Sam Schott testified that on Monday, June 15, a few hours before Cadwell was
discharged he (Sam Schott), his father (Elmer Schott), and Shipping Clerk Arthur
(Louie) Carl conferred about the errors being made in the shipping department and
at that time Carl's recommendation to discharge Cadwell as one of the employees
not "doing any good" (too many mistakes in shipments, sloppy work, and mislabel-
ing) was adopted.- Later in his testimony Sam Schott testified the decision to dis-
charge Cadwell was made Sunday, June 14, when he and his father (Elmer Schott)
conferred about what had happened during Elmer Schott's absence from the vicinity
of Respondent 's place of business . Elmer Schott corroborated this testimony.
Ralph H. Speck
Between 1 : 30 and 2 p.m. on June 15, Ralph Speck , a shipping department em-
ployee since May 5 , 1959 , who had signed a union authorization card on June 12
SCHOTT METAL PRODUCTS COMPANY 425
.and had solicited members for the Union ( including White's membership ) on June
13 and 15 , was discharged by Foreman Jacobs. According to Speck: 8
Well, I was standing and banding in the back . Fred [Jacobs ] come up to me
and Bob Griffen come up to me. Fred said to me , he said, "Is that your thermos
jug there? Is that all you have with you?" Then he pointed to my thermos
jug. I said, "yes." He said, "well , good, get it ." I got it. He handed me
a-pulls a check out from inside of his shirt . He says, "I am sorry. Your work
wasn 't good enough ." I said , "well, Fred, you and I both know better than
that." He said, "well , I cannot say." We then walked to the front of the
warehouse . As he was walking up there he said , "Is Creswell in on this with
you?" I said , "no." I said , "Whose [who 's] Creswell?" He says "You know."
He said, "Is Cadwell in on this with you ?" I said , "No." I said , "Whose
[who's ] Cadwell ?" he said, "A fellow with a beard ." He says, "Well , we seen
Creswell passing the cards ." Then-that was all that was said . We walked
outside. While we were outside , Fred said to me , "What do you want a union
for?" He said , the old man has given you-
Q. By that he meant Mr. Elmer C. Schott?
A. Yes. He says, "The old man has given you a Profit Sharing Plan
whereas in a few years you could realize some money." I said , "Fred, again
you and I both know better than any man better than that . Any man that's
working here won't be here 15 years from now at the rate that the men are
hired and fired with no seniority rights whatsoever. Nobody will have a chance
to take advantage of that Plan."
Q. All right did he say anything else to you before you parted?
A. We shook hands. He said, "Well-" I said , "It has been nice working
with you, Fred ." He said , "Sorry to see you go." That was it.
At the hearing before the Trial Examiner , Respondent contended that Speck
was discharged because he was one of the junior (junior in seniority ) employees
responsible for errors in the shipping department ( mislabeling and loose banding)
and because he was slow and did not evidence any desire to work.
Sam Schott testified that he did not observe Speck's work but that Shipping Clerk
Arthur (Louie ) Carl reported that Speck's work was not what it should have been
and that Speck did not improve after warnings . Shipping Clerk Carl testified that
Speck constantly mislabeled , that he cautioned him numerous times, the last time
about a week before he was discharged , and that a week before his discharge he
recommended to Elmer Schott that Speck be discharged for mislabeling. Elmer
Schott corroborated Carl and testified further that Speck engaged in "too much
running around and too much horseplay ." The record does not reveal details
concerning "running around " or "horseplay ." Speck admitted that he had been
cautioned (by Elmer Schott ) about mislabeling 11/2 or 2 weeks before he was
discharged.
Robert D . Creswell
"In the middle of the afternoon" of Monday , June 15, Robert Creswell, a shipping
department employee since April 27, 1959, who had signed a union authorization
card on June 12 and had solicited members for the Union on June 15, was discharged
by Foreman Jacobs. According to Creswell , Jacobs handed him his final paycheck
and said:
"Well, I am sorry to have to do this . But we are going to let you go. Here
is your check ." He said , "How in the world a nice guy like you get mixed up
with a bunch like this." I replied then , "I hadn't initiated this thing . But that
the issue had arisen." I told him, "I had taken the side that I thought was
justified."
Fred said , "It's too bad that [ you're] involved with these guys. You will be the
losers for it " He said , "Mr. Schott is upstairs-" he didn't say Mr. Schott-
"Elmer is upstairs making out checks just as fast as he can and all of those
who are involved in this will be released."
Q. All right. Did he say anything else to you
A. I-why, yes, he did. Not at that time . He accompanied me -to the front.
Don and Fred both accompanied me to the front door until we were outside
8 Jacobs testified he told Speck "the old man told me to tell these guys the reason.
That it was unsatisfactory work. That is what I told them "
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the building. Don departed at that point. Then Fred, Fred and I had some
other words. I don't remember what they were. We shook hands and under
the circumstances it was a cordial good -bye. That is all there was to it.
Creswell testified further that his paycheck was undated and that when he returned
it for dating he had a conversation with Jacobs about the Union. When asked to
tell what was said, Creswell responded:
I am trying to remember how it started but I can't remember effectively how
it started . At any rate, I remember Fred ending up calling the Teamsters,
"a bunch of hoods." To which I remarked, "If Mr. Schott disliked the Team-
sters, why , he didn't consider letting another union in ." I mentioned that there
were others and I thought that he could have admitted some other union. Fred
said, "He didn't know." He said, "He knew that others had tried it and failed.
That Elmer would never admit a union into his shop." He said, "In fact, he had"
heard him say that he would close down the place and go fishing first." He said,
"I know that Elmer has made a lot of money and he could do it ." He said,
"I know that Sam feels the same way."
Q. Now, did you ever have any conversation with Mr. Jacobs with regard
to signing a withdrawal card from the Union?
A. Yes. That was part of the same conversation.
Q. Will you tell me what he-what it was that he said?
A. Only that he encouraged me to sign a withdrawal card.
Jacobs did not testify with respect to these matters except to the extent of admitting
that he told some employees he was sorry to see them go.
At the hearing before the Trial Examiner, Respondent contended that Creswell
was discharged because he was one of the junior (junior in seniority ) employees in
the shipping department and was involved in mislabeling and overages.
Shipping Clerk Arthur (Louie) Carl testified that Creswell, a bander, did sort
of a "sloppy job of banding " and his labeling of materials was not accurate (no details
were supplied) and that he recommended that Creswell be discharged about a week
before he was discharged. Elmer Schott, in general terms, corroborated this
testimony.
Chelsie White
"Bight after noon" on Monday , June 15, Chelsie White, a shipping department
employee hired May 9, 1959, who had signed a union authorization card at Respond-
ent's place of business and at shipping department employee Speck 's request on
Saturday afternoon , June 13, was discharged by Foreman Jacobs who told him his
work was unsatisfactory. White asked, but did not receive an answer, in what
respects his work was unsatisfactory.
Respondent contended at the hearing before the Trial Examiner that White was
discharged because he was one of the junior (junior in seniority ) employees in the
shipping department and that he was a careless employee. (Shipping Clerk Arthur
(Louis) Carl so testified in general terms, as did Elmer Schott. Shipping Clerk
Carl testified that he cautioned White on two occasions about sloppy work and then
recommended his discharge about a week prior to the time he was discharged.
Elmer Schott corroborated Carl's testimony concerning the recommendation White
testified that he did not recall ever being warned or criticized about making too
many errors. He did not testify in rebuttal to Carl's testimony that he (Carl)
warned him (White) twice for sloppy work.
David R. Kelly
At the beginning of his shift (about 3:30 p.m.) on Monday, June 15, David R.
Kelly, a production department employee since May 4, 1959, who had signed a
union authorization card on Saturday, June 13, was discharged by Foreman Jacobs
and told that he was being discharged "because the old man was losing money
and going broke."
Kelly was a machine operator. At the time of his discharge he had been oper-
ating a blanking press for about I week.
At the hearing before the Trial Examiner, Respondent contended that Kelly was
discharged because "he couldn't comprehend the job" and that "he had to be cau-
tioned numerous times to keep his hands away from the press. He just couldn't
understand directions."
Respondent's records state that Kelly was discharged for "unsatisfactory work
No output. Loafer."
According to Elmer Schott, he observed (when and under what circumstances
does not appear ) Kelly and "he seemed to run around a lot and I [Elmer Schott]
SCHOTT METAL PRODUCTS COMPANY 427
cautioned Mr. Kreiner [night shift foreman], his foreman, a lot of times about
letting him run around and wondered why he wasn't doing the job."
Assistant Foreman Calvin Finch testified he did not know why Kelly was dis-
charged although he (Finch) had cautioned him dozens of times about the use of
his hands around running machinery and had warned him (Kelly) once, "no more
than a week before he was dismissed," that he was producing too much scrap by not
checking the material as it was being run and told Kelly, "This is your last chance."
According to Night Shift Foreman Kremer, Kelly did not heed directions and was
constantly being reprimanded for such and he (Kremer) recommended that Kelly
be discharged 2 weeks prior to his discharge and again on Friday, June 12, 1959.
Kelly admitted being warned about the use of his hands around running machinery
and about producing too much scrap
Thomas L. Phillips
About 6 p in. on June 15 (at the beginning of his shift), Thomas L. Phillips, a
shipping department employee since May 19, 1959, who had signed a union authoriza-
tion card on June 13, was handed his final paycheck and told by Foreman Jacobs
that business was slow and that his services were no longer needed.
Respondent contended at the hearing before the Trial Examiner that Phillips was
discharged because he was one of the junior (junior in seniority) employees in the
shipping department and that he "just seemed to live for quitting time and payday."
Respondent's records indicate as reasons for Phillips' discharge "unsatisfactory
work-no output."
James Evans, shipping clerk in charge of the second shift, testified that Phillips
was careless and frequently engaged in conversations about matters not pertinent
to Respondent's business, that Phillips failed to correct these matters after being
called down about them, that on the Thursday before Phillips' discharge he (Evans)
recommended to Sam Schott that Phillips be discharged for the reasons just noted,
and that Sam Schott stated he would take the matter up with his father (Elmer
Schott) upon his return to the vicinity of Respondent's place of business and let him
(Evans) know on Monday, June 15. In a general way Sam and Elmer Schott
corroborated the testimony given by Evans. Phillips testified he was never criticized
or warned and that to the contrary Evans had said something to him in the nature
of a compliment (the record does not disclose details-what was said, when or under
what circumstances).
Basil Duffield
About 2.30 p.m. on Monday, June 15, 1959, Foreman Jacobs said to Basil
Duffield, a trimming machine operator and a close friend of Jacobs, "I am glad that
you [are] not in this. If you was, I'd come after you with a ball bat." After work
that day, about 5:30 p.m., Duffield signed a union authorization card Around
6 p.m., Foreman Jacobs called upon Duffield at his brother's home where he was
dining and interrogated him as to whether Glenn Starcher (a shipping department
employee) "was in on this" and was "clean." According to Duffield:
Well, when he asked me that, I told him that, "I didn't think Glenn was in on
it He had been out of a job and he hadn't worked at Schott too long. He
was married and had a lot of bills to pay off and I was almost sure that Glenn
wasn't in on it."
Q. I see.
A. So Fred turned and started to go back. I said, "Fred, the old man is
going to fire me in the morning." Fred turned around sort of surprised. As
I recall, I think he said, "What" And I said, "I signed a card " Fred put up
his hand like this, as I recall, he said, "Oh, no."
Mr MOTIL: Let the record show that the witness is putting his right hand up
to his forehead.
By Mr. MoTIL:
Q. Then what did Jacobs do?
A. He asked me, "Why I had signed it?"
Q. All right.
A As I recall, I told him, "That the guys that had already signed the card
had more to lose than I did because they were married and had payments.
With me expecting my call back to Goodyear Tire, I just thought that I would
sign up and help the other guys."
Q All right. Was there anything else said at that time or did Mr. Jacobs
remain and eat supper with you or did he leave?
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. No, we kept talking then. He asked me, "to get my card back." He
said, if I could get my card and tear it up that I would probably be able to go
back to work. Well, in the meantime Falcone already had my card. Where
they went, they pulled up the road , but I didn't know. We were talking behind
the house. He said, "Let's go and get it ." I told him, "I would think it over."
So in the meantime Fred went back up the shop , I suppose . I went back to
finish my meal. And I-
Q. Now wait a second. When he said, "Let's go get it," did you tell him
whether you wanted your card back or not?
A. I can't recall what I said . Something like, "Sort of wished that I hadn't
signed it."
Q. But did you say that you wished you hadn' t signed it?
A. Since Fred and I were such good buddies, I think that I did say, "I
wished that I hadn't." 9
Upon leaving Duffield's brother's home, Jacobs approached a group of Respondent's
recently discharged employees (Miller, John Kridler, Speck, Creswell, Cadwell,
and Keys) and asked for Duffield's union authorization card stating that if he did
not get it he (Jacobs) would have to give Duffield " his time in the morning" and
that Duffield did not want to lose his job and did not want to join the Union. Jacobs
did not receive the card. At the beginning of the shift the next morning, June 16,
Duffield was discharged by Jacobs without an explanation except for Duffield's
comment, "Well , I think I know what it is" in response to Jacobs ' statement, "I
got something for you" as he gave Duffield his final paycheck.
At the hearing before the Trial Examiner , Respondent contended that Duffield
"was continually asking to be laid off the job until finally it just got to be so bad
that we let him go."
Respondent's records reflect that Duffield was discharged because "work not
satisfactory."
Sam Schott testified that beginning about a month before his discharge Duffield's
work "was getting pretty bad" that his trimming was "awful sloppy." Sam Schott
testified further that 3 or 4 weeks before Duffield was discharged , Night Shift Fore-
man Kreiner reported to him that Duffield wanted "to work out something with
management so that he could get off and collect his unemployment ," that he (Sam
Schott) told him (Kreiner ) "we couldn 't do anything like that, if he [Duffield]
wanted to quit that he would have to quit ," and that thereafter Duffield's work
became so intolerable "we finally had to clear him out ." Sam Schott did not supply
particulars except to state that "the week end where the firings was" he (Sam
Schott) checked Duffield's work and found "the panel trimming hadn't improved."
Sam Schott testified further that he spot checked Duffield 's work from time to
time and found "sloppy trim" but that he had no conversations with Duffield "about
the trimming."
Night Shift Foreman Kreiner testified that he observed Duffield 's work and "one
thing about his work he had one pace which was slow" but that he never "warned
him that he would have to speed up his production ." With respect to Duffield's
request to be laid off, Kreiner testified:
Q. Did he ever have any conversation with you about getting a lay-off slip
at the plant?
A. Oh, yes. He asked me that.
Q. Now, when did that conversation occur?
A. Oh, that occurred, I'd say about 2 months before he was let go.
Q. What did he ask you? What was the conversation?
A. He asked me, "If it was possible for me to get a lay-off slip so that I could
go back home on the farm with my mother."
Q. And what was your reply to that?
A. I thought-I told him, "I didn't think it could be done." 10
Elmer Schott testified that Duffield "was with us for quite a while " (between May
28, 1958, and February 21, 1959, and between March 10, 1959, and June 15, 1959)
and from the first he was an easygoing , slow-talking individual and he "never seemed
to want to pick up the way he should." In response to leading questions, Elmer
'Jacobs' version of this conversation is considerably different from that given by
Duffield . In the light of the entire record herein , including statements and conduct
attributed to Jacobs and not denied , the Trial Examiner credits Duffield and finds the
facts to be as stated above
11 Duffield's testimony is substantially to the same effect except that he placed this
incident in the "winter months."
SCHOTT METAL PRODUCTS COMPANY 429
Schott testified further that prior to the time that "we" let him go, he (Duffield)
"seemed to turn out quite a lot of sloppy work." How long prior and under what
conditions Schott noticed such deterioration does not appear.
Events after Discharges
A couple of days after June 15, Foreman Jacobs told a group of discharged em-
ployees then on picket duty that Robert Falcone and John Keys would have been
fired in 2 weeks anyhow. But this union business brought it on sooner."
Within a matter of days after the discharges involved herein, Foreman Jacobs
made a statement, or statements, to a group, or to groups, of dischargees then on
picket duty to the effect that Respondent would close its place of business before it
would let a union in the shop.13
On June 23, 1959, Kelly, Keys, Creswell, Phillips, and Speck were summoned to
appear and testify in a State court proceeding involving picket line activities. On
Saturday, June 20, or on Saturday, June 27, Foreman Jacobs told Duffield that he
(Duffield) and White were not summoned because "Elmer didn't think we had too
much to do up in the picket line" and sought to persuade Duffield not to "testify
against him [Jacobs]." 13
Employment Applications
At the times material herein Respondent's "applications for employment" listed
as questions to be answered by applicants, inter aka:
Q. Have you ever been a member of a labor organization? ---------------
If answer is yes, what name? ------------- ------------------------ Have
you ever held office such as steward, business agent, etc.? -----------------
Conclusions
On the basis of this record, the Trial Examiner is not convinced the "faults"
assigned to the dischargees herein were the reason or reasons for the discharges or
that the discharges were an effect to eliminate "deadwood" that was affecting pro-
duction. In the light of the entire record, including the inexperience of the em-
ployees involved and the evidence that errors were expected in the normal course
of business, it would have been unusual if there had not been some faulty work-
manship and damage to parts. Furthermore, Respondent's evidence with respect
to "faults" lacks the impressiveness of direct and straightforward evidence. In
many instances it is vague, in generalities, and contradictory. Also, in instances
where specific individuals were identified as having done something in error it is
also established that the fact was known prior to the advent of the Union and that
it was treated with indifference until the advent of the Union and then disciplinary
measures were taken with speed.
With respect to Respondent's "clincher" evidence, it is noteworthy that there is no
evidence that Respondent suffered monetary losses, that the subordinate employees
rather than employees directly responsible for these errors were disciplined, that the
discipline was in the middle of the workweek, that the disciplinary measures were
imposed suddenly and during a period when employees were endeavoring to carry
out instructions to improve that between the time of the giving of the instructions
to improve and the discharges the union organizational activities began, and that the
disciplining was not confined to the shipping department where the errors occurred.
It is also noteworthy that each of the employees discharged had joined, or were
suspected of having joined, the Union within a few days of his discharge, that none
but union members, or suspected union members, was discharged, and that virtually
all the employees who attended the Union' s initial meetings were discharged.
In the circumstances noted in this report the Trial Examiner cannot hold that
union activities were not the motivating factor which resulted in the discharges, even
n Based on the testimony of Miller, Keys, and Cadwell. Jacobs did not deny making
these statements
1' Based upon the testimony of Phillips, Keys, Miller, Speck, Cadwell, Falcone, Kelly,
and Muzzy , Jacobs did not deny making these statements. He did, however, testify that
as he started to cross the picket line on June 16, the pickets stopped him and told him
there was "no use going down there," that they "were going to shut off shipments and
shut off the steel," and that he replied, "Well, if you succeed in doing this you are going
to put about 60 guys out of work. We are all going to go fishing" and then asked, and
received, permission to go through the picket line.
13 Based upon the uncontradicted testimony of Duffield.
4B0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
though there might have been valid reasons for these discharges . In the opinion
of the Trial Examiner, the evidence establishes that these discharges were for the
purpose of undermining the Union and stemming the tide of its organizational cam-
paign and that the reasons assigned for these discharges were pretexts to conceal
this purpose. That such is the fact is indicated, inter alia, by the timing of the dis-
charges in relation to the union organizational activities and in relation to the
"faults" assigned , the failure of many of Respondent 's contentions to stand up under
close examination, the conduct and statements by Foreman Jacobs, and the remarks
by Elmer Schott to employee Falcone at the time he was offered reinstatement.
There is no real question herein as to whether Foreman Jacob's conduct was
violative of the Act. Clearly such interrogations and threats interfere with, restrain,
or coerce employees in the exercise of rights guaranteed by the Act. Furthermore,
in the context of the unfair labor practices found, the interrogations as to union
membership on the employment application form have a coercive effect and violate
Section 8(a) (1) of the Act. See Transamerican Freight Lines, Inc., 122 NLRB 1033,
footnote 3, and case cited there.
Misconduct
Respondent contended at the hearing before the Trial Examiner that some of the
individuals involved herein should be denied reinstatement on the ground that they
engaged in misconduct after their discharges. However, in the light of the oral
argument at the end of the trial and the absence of any reference to these matters in
Respondent's brief, it now appears that Respondent has abandoned these contentions.
Accordingly, no effort will be made herein to outline the evidence with respect to
these matters although the Trial Examiner has considered such evidence in con-
nection with the evidence heretofore outlined and in connection with the remedy
hereinafter fashioned, and has concluded that the conduct involved does not justify
denial of reinstatement.
IV. ULTIMATE FINDINGS AND CONCLUSIONS
In summary, the Trial Examiner finds and concludes:
1. The evidence adduced in this proceeding satisfies the Board 's requirements for
the assertion of jurisdiction herein.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousmen and Helpers
of America, Milk & Ice Cream Drivers & Dairy Employees Union, Local 497, is a
labor organization within the meaning of the Act.
3. The evidence adduced establishes that Respondent threatened and interrogated
its employees and thereby interfered with, restrained, or coerced employees in the
exercise of rights guaranteed in Section 7 of the Act and thereby violated Section
8(a)(1) of the Act.
4. The evidence adduced establishes that Respondent by discriminating in regard
to tenure and conditions of employment and discouraging membership in a labor
organization has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) and (3) of the Act.
5. The aforesaid activities are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Raybern Bus Service, Inc.' and Division 1511 , Amalgamated
Association of S.E .R. & M.C.E. of America , AFL-CIO, Peti-
tioner. Case No. 2-RC-10470. August 3, 1960
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, hearings were held on February 18 before Louis
A. Schneider; on March 3 and 16 before Harry E. Knowlton; and on
April 6 and May 4, 1960, before 'I. L. Broadwin, hearing officers of
'The name of the Employer appears as amended at the hearing
128 NLRB No. 51.