Shields Engineering & Mfg. Co.

National Labor Relations Board - Board Decisions

Jul 14, 1949

85 N.L.R.B. 168 (N.L.R.B. 1949)

In the Matter of CART, S. SHIELDS AND SEBOUGH S. SHZELDS , PARTNERs,
DOING BUSINESS AS SHIELDS ENGINEERING & MFG. Co.,' and Vaarox
REBERSAS , AN INDIVIDUAL
Case No. 8-CA-82.-Decided July 14,1949
DECISION
AND
ORDER
On February 9,1949, Trial Examiner Robert L. Piper issued his In--
termediate Report in the above-entitled proceeding, finding that the-
Respondents had engaged in certain unfair labor practices and recom-
mending that they. cease and desist therefrom, as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner also-
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint, and recommended dismissal
of these allegations. Thereafter, the General Counsel filed exceptions,
to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, as amended,
the Board has delegated its powers in connection with this case to a.
three-member panel [Chairman Herzog and Members Houston and
Murdock].
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 Inter-
mediate Report, the exceptions, and brief, and the entire record in the-
case, and hereby adopts the findings and conclusions of the Trial
Examiner with the following modifications :
1. The Trial Examiner found, as set forth in the Intermediate Re-
port, that the Respondents violated Section 8 (a) (1) of the Act. We-
agree. However, in so concluding, we rely only on the following acts :
(1) Carl Shields' threats in the presence of employee John Lindic and
other employees to discharge employees for union membership and
1 At the outset of the hearing, a motion by the General Counsel was granted amending
the caption of the pleadings and the complaint in the above respect. Respondents hadr
been erroneously designated therein as Shields Engineering & Mfg. Co., a corporation.
85 N. L. R. B., No. 81.
168
SHIELDS ENGINEERING & MFG. CO . 169
activities; (2) Sebough Shields' interrogation of Gruden and Schnei-
der, applicants for employment, as to their union membership and
activities, his orders to them not to have anything to do with the Union
and his interrogation of Schneider as to whether he had been ap-
proached by the Union, and if so, by whom; and (3) Carl Shields'
threats to close the plant, if necessary, to get rid of the Union. We do
not rely in any degree upon the course of conduct theory 2 mentioned
by the Trial Examiner.
2. We agree further with the Trial Examiner that the Respondents
did not violate the Act by refusing to reemploy Victor Rebersak after
his illness. However, unlike the Trial Examiner, we do not consider
as a factor in reaching this conclusion the failure of the General Coun-
sel to produce Rebersak's physician to testify concerning Rebersak's
physical condition. That testimony would not have been relevant,
inasmuch as the issue herein was not what Rebersak's condition was
in fact, but what he told Carl Shields it was. On this issue we find, as
did the Trial Examiner, that Rebersak asked for light work and that
such work was not available.
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 Carl S. Shields,
and Sebough S. Shields, partners, doing business as Shields Engineer-
ing & Mfg. Co., Cleveland, Ohio, their agents, successors, and assigns,.
shall :
1. Cease and desist from :
(a) Threatening their employees with discharge because of their
union membership or activities;
(b) Questioning their employees and applicants for employment
about their union membership or activities ;
(c) Ordering their employees not to join the Union;
(d) Threatening to get rid of the Union or close the plant; and
(e) In any other manner interfering with, or restraining, or co-
ercing their employees in the exercise of the right, as guaranteed in
Section 7 of the Act, to self-organization, to form labor organizations,
to join or assist Mechanics Educational Society of America, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
2 Matter of The Bailey Company, 75 N. L. R. B. 941.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to refrain from any and 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.
2. Take the following affirmative action which, it is found, will
effectuate the policies of the Act :
(a) Post at their plant in Cleveland, Ohio, copies of the notice at-
tached hereto, marked Appendix A. Copies of said notice, to be fur-
nished by the Regional Director for the Eighth Region, to be posted by
Respondents immediately and maintained by them for sixty ( 60) con-
secutive days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondents to insure that said notices are not
altered, defaced , or covered by any other material ;
(b) Notify the Regional Director for the Eighth Region in writing,
within ten (10) days from the date of this Order, what steps Respond-
ents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint , insofar as it alleges
that the Respondents told their employees that they would receive no
wage increases if they joined the Union , and discharged and failed to
reinstate Victor Rebersak because of his union or concerted activities,
be, and it hereby is, dismissed.
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 threaten our employees with discharge because of
their union membership or activities , question our employees and
applicants for employment about their union membership or activ-
ities, order our employees not to join the Union , or threaten to get
rid of the Union or close the plant.
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 MECnANICS
EDUCATIONAL SOCIETY OF AMERICA, or any other labor organiza-
tion, 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
SHIELDS ENGINEERING & MFG. CO. 171
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 National Labor Relations Act.
All our employees are free to become or remain members of the
above-named union, or any other labor organization.
CARL SHIELDS and SEBOUGTI S. SHIELDS,
Partners, d/b/a,
SHIELDS ENGINEERING & MFG. CO.,
Employer.
By ------------------------------------------
(Representative ) ( Title)
Dated--------------------
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
Messrs. Harry L. Browne and Morris A. Solomon, for the General Counsel.
Mr. Alenam,der S. Brien, for the Respondent.
STATEMENT OF TILE CASE
Upon a charge filed on July 2S, 1948, by Victor Rebersak, an individual, the
General Counsel of the National Labor Relations Board (hereinafter called the
Board), by the Regional Director for the Eighth Region, (Cleveland, Ohio),
issued a complaint dated November 15, 1948, against Carl S. Shields and Sebough
S. Shields, Partners, d/b/a Shields Engineering & Mfg. Co.,' (hereinafter called
Respondents), alleging that Respondents had engaged and were engaging in
unfair labor practices affecting commerce within the meaning of Sections 8 (a)
(1) and (3), and 2 (6) and (7) of the National Labor Relations Act, as amended
(hereinafter called the Act), 61 Stat. 136, 29 U. S. C. Supp. I, Secs. 141, et seq.
Copies of the charge, the complaint, and a notice of hearing were duly served
upon Respondents.
With respect to the unfair labor practices, the complaint alleged in substance
that Respondents: (1) from on or about November 1, 1947, to the date of the
issuance of the complaint, ordered their employees to remain out of Mechanics
Educational Society of America (hereinafter called the Union), threatened to
discharge their employees because of their Union membership and activities,
announced they would get rid of the Union, questioned their employees about
their Union membership and activities, threatened to close down the plant rather
than deal with the Union, and told their employees they would receive no wage
increases if they joined the Union ; (2) discharged Victor Rebersak, their em-
ployee, on or about July 12, 1948, and have since failed and refused to reinstate
said Rebersak, because of his membership in and activities on behalf of the
Union and other concerted activities; and (3) by.the foregoing conduct engaged
' See footnote 1 of Decision and Order.
:172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in unfair labor practices within the meaning of Section 8 ( a) (1) and (3) of
the Act.
Respondents ' answer admitted certain allegations of the complaint with
respect to the nature of its business but denied the alleged unfair labor practices.
Pursuant to notice a hearing was held in Cleveland, Ohio, on December 13
:and 14 , 1948, before the undersigned , Robert L. Piper, the Trial Examiner duly
designated by the Chief Trial Examiner . The General Counsel and Respondents
-were represented by counsel and participated in the hearing . Full opportunity
to be heard , to examine and cross -examine witnesses and to introduce evidence
bearing upon the issues was afforded all parties . A motion made at the close
,of the hearing by the General Counsel to conform the pleadings to the proof with
. respect to minor variances was granted.
Oral argument was heard from counsel for both parties . The General Counsel
-waived the filing of a brief. Respondents ' counsel requested and received time
to file a brief. This brief was received and has been considered.
Upon the entire record in the case, and from my observation of the witnesses,
make the following :
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENTS
Respondents are a partnership, doing business as Shields Engineering & Mfg.
'Co., at Cleveland, Ohio, where they are engaged in the manufacture, sale, and
-distribution of dry cleaning machinery and related products.
During the course of their business operations, Respondents annually pur-
,chase more than 25 percent or in excess of $120.000 of their raw materials outside
-the State of Ohio, which are shipped to their plant in Cleveland, and annually
:sell and deliver more than 50 percent, or in excess of $180,000 of their finished
products outside the State of Ohio. Respondents admit, and I find, that they are
engaged in commerce within the meaning of the Act.
U. THE ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of
Respondents.
III. THE UNFAIR LABOR PRACTICES
A. Factual background
For a number of years Respondents, Carl and Sebough Shields, operated. a
small machine shop in Cleveland, Ohio, as a partnership doing business as Shields
Engineering & Mfg. Co. They were engaged in manufacturing special machinery
.and handling contract jobs for larger manufacturers. During 1947 and 1948,
the shop personnel varied slightly from 25 to 30 employees, being more or less
constant. The partners are brothers. Carl managed the business and Sebough
.acted as shop superintendent.
Victor Rebersak was employed by Respondents for about 7 years, beginning in
:1941. Pursuant to a mutual understanding, he frequently left his employment
to pursue his private and business interests. Upon returning, he was always
rehired if a job was available. He was an experienced machinist and did sheet
metal work for Respondents during 1947 and 1948.
SHIELDS ENGINEERING & MFG. CO. 173
Sometime in the late summer of 1947, Rebersak became involved in an alterca-
tion with a fellow employee whose work Rebersak had criticized. This alterca-
tion was sufficiently loud to command the attention of most of the employees
in the vicinity. George Rancont, the employee criticized by Rebersak, was so
incensed that he resigned. Rebersak had told him that he was "the dumbest guy
that ever worked and knew nothing." Rancont was a welder and pursuant to his
foreman's orders performed certain welding operations on Respondents' products
on which Rebersak also was working. Rebersak had no authority over Rancont.
The altercation was smoothed over, Rancont withdrew his resignation, and
operations were continued as usual . Rebersak admitted all of this and further
admitted that Carl Shields rebuked him for this outburst, and warned him that
he would be fired if he did it again.
,On November 6, 1947, a majority of the shop employees, including Rebersak,
attended a meeting at a Union hall and joined the Union. There had been little
or no previous organizational activity among Respondents' employees. At this
meeting, employees Russ and Maxwell were elected stewards. Either at this
meeting, or shortly thereafter, an agreement was entered into to strike if any
Union members should be discharged. This agreement appears to have been
unqualified with respect to whatever reasons might exist for a discharge.
At the time of this meeting Carl Shields was out of town. He returned to his
office on the afternoon of November 11th. He was advised by some of his em-
ployees that Rebersak had been causing trouble in the plant by arguing with
both the office help and the shop.help . He decided to fire Rebersak at once and
.advised his nephew, Nubar Abdalian, an employee but not a supervisor, to convey
this information to Rebersak, which was done.' There is no evidence in the
record to indicate that Carl Shields knew that Rebersak had joined the Union,
:and I find that he did not so know. There is some dispute as to whether Shields
then knew of the existence of the Union in the plant. Two of the employees testi-
fied that he had questioned them about the Union the day Rebersak was fired.
The General Counsel offered in evidence a letter prepared by a Union organizer
requesting recognition of the Union by Respondents. This letter was dated
November 8, 1947, but was not the original or a carbon copy. Respondents ad-
mitted receiving a letter some time after November 12. Under all of the circum-
stances, I believe, and find, Respondents did not receive the letter before then.
-Carl Shields said he knew nothing of the existence of the Union at the time of
Rebersak's discharge. This was inferentially corroborated by a witness called
by the General Counsel.. Peter Oberson, a foreman, testified that a few days
after Rebersak's discharge, Carl Shields criticized him for not knowing and
advising Respondents that there was a Union in the plant, and that as a result
he resigned' Shields frankly admitted that from the day after his return he
knew both of the existence of the Union in the plant and Rebersak's membership
therein. From all of the testimony, I find Carl Shields' statement to be credible,
2 The charge was filed July 26, 1948, and served July 29, 1948. Although the complaint
alleged unfair labor practices from on or about November 1, 1947, to the date of issuance,
the General Counsel conceded that all actions of Respondent occurring before January
29, 1948, were barred as evidence of unfair labor practices by the provisions of Section
10 (b) of the Act, and were introduced in evidence only for the purpose of background
and to show Respondents ' course of conduct, in order to assist in evaluating subsequent
events.
Apparently Oberson returned . He was employed by Respondents at the time of the
hearing.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and find that he did not know of the existence of the Union until the day follow-
ing Rebersak's discharge.
Rebersak, upon notification of his discharge, told his fellow Union members
about it. They, after consultation with their Union organizer, decided to strike
in accordance with their previous agreement. Rebersak said he was never
informed and never asked why he was fired. The next morning the men formed
a picket line and the plant did not open. The strike lasted for 8 days. During
.this period, Carl Shields had several meetings in his office with the striking em-
ployees. Rebersak did not attend. Shields made several statements at these
meetings in opposition to the Union. He said the Union was ruining the shop and
he would close up before he gave in. He also said that if the men wanted a union
they could have had one without calling in outside organizers. He questioned
the legality of the strike under the Act, but was informed that it was legal. He
asked the men at the first meeting why they were striking, and was informed
At was because he had fired Rebersak. It was admitted that he said at this
meeting he had fired Rebersak because of his quarreling with other employees.
During the period of the strike, negotiations were entered into between
Respondents and national officers of the Union. Within a few days a contract
was executed and the strike settled. The written contract, which is in evidence,.
.provided inter alia for the return to work of all employees, including Rebersak,
a raise in wages, the negotiation of a more complete agreement within 6 weeks,
and the recognition of the Union as the bargaining agent. All of the employees
returned to work and operations were resumed.
Shortly after the strike, Maxwell, one of the stewards, was transferred to
another position. On pay day he discovered his pay was 10 cents an hour less
.than it had been. The national president of the Union visited the plant and
discussed this matter with Respondents' office manager and the full amount
of pay was restored, including the period transpired. Apparently Respondents
were never personally contacted concerning this matter.
Sometime just before Christmas, 1947, at a Christmas party for Respondents'
employees, •Sebough Shields said to several employees that "they would get:
the fellows to reorganize the plant." This was not denied by Respondents.
0
B. Interference, restraint, and coercion
All of the events discussed above occurred prior to January 29, 1948, and it is
unnecessary to determine whether they, or any of them, constituted unfair
labor practices under the Act.4
During February of 1948, Charles R. Lampe, one of Respondents' employees
and a member of the Union, attended a wedding party given by Nubar Abdalian_
At this party, Carl Shields told Lampe that he (Shields) knew who was in the
Union and that "he was going to make it tough for them." This was not denied
'by Respondents. Lampe further testified that after this party Respondents took
some of his privileges away from him. However, on cross-examination, Lampe
admitted the only "privilege" taken away was not permitting him to have
visitors and talk to them while working at his machine. Lampe further said
'that subsequently when he resigned voluntarily, Carl-Shields was much con-
cerned about his leaving and asked him why he was quitting. Respondents
4 See footnote 3, supra.
SHIELDS ENGINEERING & MFG. CO. 175
testified, and it was not- disputed, that a rule against talking in the plant was
in effect.
In May 1948, John Lindic, another employee and member of the Union,
was told by Carl Shields in the presence of several other employees at a social
.gathering that he remembered the fellows who had been picketing and that he
would eventually get rid of them. This was not denied by Carl Shields. I find
that Respondents threatened to discharge employees for union membership and
activities, but find that no privileges were taken away from any of the employees
because of such membership or activities.
During the spring months of 1948, Respondent hired two new employees, Gruden
and Schneider. Sebough Shields questioned both of them about their union
.affiliations, and told them to have nothing to do with the Union. Subsequently,
Sebough Shields asked Schneider if any members of the Union had approached
him, and when informed that they, had, wanted to know their names. Schneider
refused to divulge this information. Respondents did not deny these incidents.
I conclude, and find, that Respondents questioned their employees and applicants
for employment about their union membership and activities, and ordered them
not to join the Union.
In May of 1948, Russ, one of the Union stewards, got into an argument about
his work with Sebough Shields and was summoned to Carl Shields' office. Carl
Shields told Russ that sooner or later Respondents would get rid of the Union,
and if necessary, could close the shop to do so. This was not denied by Respond-
ents. Accordingly, I find that Respondents did threaten to get rid of the Union
and to close the plant if necessary to do so.
By the above course of conduct, including threatening discharge for Union
membership and activities, questioning employees and applicants for employ-
ment about their union membership and activities, ordering employees not to
join the Union, and threatening to get rid of the Union and close the plant,
Respondents have interfered with, restrained, and coreced their employees in
the exercise of the rights guaranteed in Section 7 of the Act.
I find no substantial, reliable, or probative evidence in support of the allega-
tion of the complaint that Respondents told their employees that they would
receive no wage increases if they joined the Union.
During the course of Respondents' case, counsel for Respondents offered in
evidence 28 affidavits signed by their employees. It was indicated by counsel
that the affidavits were offered in lieu of calling the 28 employees to testify.
The General Counsel raised no objection to the affidavits and they were received
in evidence. In essence, they were statements by the employees who signed
them that they had never been threatened or intimidated by Respondents with
discharge for joining a union.` Respondents and their supervisors distributed
them with the request to the employees to read and then sign if they cared to.
One of the Respondents' legal representatives suggested the idea of securing
such affidavits. Under the well-established rule that evidence of such character
5 The actual wording of the affidavits, prepared on letterheads of Respondent, was as
follows :
"The Shields Engineering & Mfg. Company has been charged by the National Labor
Relations Board with a violation of the Taft -Hartley Law ; namely threatening our
employees with discharge if they join a union.
I, the undersigned employee, who have worked for Shields Engineering & Mfg.
Company over a long period of time have never been threatened or intimated by Mr.
Carl S. Shields or his partner that I would be discharged if I joined a union." (Jurat.)
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and obtained in such manner has little, if any, probative value,' I would not
normally accord it extended discussion. However, the General Counsel has.
urged a finding that the obtaining of the affidavits by Respondents in and of it-
self constituted an unfair labor practice under the Act. I do not agree with this-
contention. Under all of the circumstances, I do not believe that any improper
motivation can be imputed to Respondents, nor that such action interfered with,.
restrained, or coerced their employees. I believe that Respondents were honestly
attempting to prepare their defense to the pending hearing of the alleged unfair
labor practices. Such preparation has been held not to constitute an unfair
labor practice.' Accordingly, I find that the securing of the affidavits by Re-
spondents did not interfere with, restrain, or coerce their employees in the exer--
cise of the rights guaranteed in Section 7 of the Act.
0. The alleged discriminatory discharge of Rebersak
A considerable portion of the hearing was devoted to the litigation of Rebersak's,
record with respect to excessive absenteeism and altercations with fellow em-
ployees. On the part of the General Counsel, this was apparently in anticipation.
of expected or possible defenses. Counsel for Respondents at one point stated
in the record that Rebersak's excessive absenses were being relied upon as a.
cause for discharge. However, when Carl Shields subsequently testified, he said
that Rebersak's absences and altercations with other employees had long since
been forgotten and bad nothing whatever to do with Respondents' alleged dis-
charge of Rebersak. For this reason, it becomes immaterial to resolve the issues
on these points.
In January of 1948, Rebersak was appointed as a third steward to represent the-
Union members in Respondents' plant. The undisputed testimony of several wit-
nesses revealed that relations between Respondents and the Union were more
or less harmonious during the months following the strike. The different stew-
ards took up grievances with the management which were apparently in all cases.
satisfactorily settled. Rebersak testified he personally negotiated some of these
grievances with Sebough Shields. The record does not reveal the specific nature
of the grievances.
Sometime in March 1948, Rebersak cut a finger while working. He went up-
stairs in the plant to get first-aid and to pick up a drill he needed in his work.
Robert Abdalian, one of Respondents' supervisors, bandaged the finger and gave
Rebersak the drill. According to Rebersak, when he returned to his bench, Carl
Shields was there and asked him where he had been. Rebersak said he had been.
upstairs to get a drill. Shields vigorously criticized him for loafing and fired him.
Shields testified that someone else, either his brother or one of the supervisors,,
fired Rebersak. One of the General Counsel's witnesses, the national vice presi-
dent of the Union, corroborated this. No finding thereon is made because the
issue is not material. Rebersak did not explain why he failed to tell Carl Shields
that he had hurt his finger and was having it fixed. It was undisputed that
Respondents' stated reason for discharging Rebersak was his loafing. In my
9 Matter of Clinton Cotton Mills, 1 N. L. R. B . 97, 112-114; Matter of Eagle & Phenix
Mills, 11 N. L. R. B. 361, 370-371; Matter of Sartorius & Co., Inc., 40 N. L. R. B. 107.
' Matter of N. & W. Overall Company, Inc., 51 N. L. R. B. 1016, 1022.
SHIELDS ENGINEERING & MFG. CO. 177'
opinion , there is nothing in the record to indicate any other reason motivated Re-
spondents, and I find there was not a
A few minutes before this discharge of Rebersak, Dominic Ciolli, a national-
representative of the Union, and Emil Petitte, national vice president, had entered-
the plant to deliver or discuss a tentative contract between the Union and
Respondents. Rebersak immediately advised them that he had been fired again.
They met Carl Shields in the plant and told him that he could not fire Rebersak:
because he was a steward and one of the key men in the Union, and that they
would call another strike if the discharge was not rescinded. Whereupon,.
Shields said that Rebersak could go back to work, which he did. Shields, Ciolli,
and Petitte continued their conversation. According to Ciolli and Petitto, Shields
asked Ciolli how much it would be worth to him to let Respondents discharge-
Rebersak, and, a few minutes later, offered Petitto a job as superintendent of-
the plant. Respondents categorically denied this. Carl Shields had never met
or seen Petitto before that day. Under all of the circumstances, I find it incred-
ible that Shields, a manufacturer with some 35 years' experience, wduld offer a-.
complete stranger a position as superintendent in charge of his plant. I also-
do not find credible the statement that Shields asked Ciolli how much it would
be worth to let Respondents discharge Rebersak. Accordingly, I find that Re-
spondents did not offer Petitto a position in the plant and did not ask Ciolli how
much it would be worth to let them discharge Rebersak.
No further disputes involving Rebersak appear to have occurred. Sometime in.
late April or May, he hurt his back during the course of his work. Between May
10 and May 24, he visited his doctor regularly and worked only part time each-
day. On May 24, pursuant to his doctors orders, he entered the hospital. His
injury consisted of a fractured cartilage, or disk, in the spine. He remained in
the hospital until June 18. He was taken home in an ambulance and remained at
home in bed for about 3 weeks. He returned to the hospital for further treat-
ments, and on July 19, according to his statement, his doctor told him he could
return to work. He went to the plant that day and saw Carl Shields and asked for-
a job. According to Rebersak, Shields told him there was no work available be-
cause of a shortage of steel. Shields denied this. Shields testified that Rebersak-
said his doctor's orders were that he should have light work, and could do no
heavy lifting. Shields further said that he had no such work in the plant, but
did offer Rebersak a job as a welder. Rebersak denied this. Rebersak left the-
plant and .did not return there to ask for his job again. About a week later, he
met Sebough Shields outside the plant and asked him about the job, and Sebough
said he would talk to Carl about it. Rebersak made no further contact with
Respondents.
Rebersak was on the witness stand two separate times, the first during the-
presentation of the General Counsel's case and the second on rebuttal after the
conclusion of Respondents' defense. During the first appearance, he testified in
substance that his doctor had told him he could return to work. This apparently
was subject to no qualifications. On cross-examination, he was asked several
times if he had not told Respondents that his doctor had said he must have light
work. A careful examination of the record reveals that he did not.directly answer
this question, but evaded it by discussing other matters. However, when called.
e The General Counsel did not urge a specific finding of any unfair labor practice in con-
nection with this discharge , nor did he allege it in the complaint . However, the parties
fully litigated the issue and it is pertinent to an evaluation of Respondents' motivation in,
the alleged discriminatory discharge.
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to testify on rebuttal , Rebersak admitted that he had told Respondents that he
could not do the real heavy lifting , and that he had been doing it before .' On cross-
examination Rebersak testified that while in the hospital he filed a claim for
workmen ' s disability compensation with the Industrial Commission of the State
of Ohio. He admitted that when he asked for his job in July, he was not entirely
recovered and could not lift anything real heavy . He further admitted that he
received disability compensation from the State of Ohio because of his injury
from May 24 to October 24, 1948. On October 25 , he started working in another
plant.
Two other witnesses for Respondents corroborated Carl Shields ' testimony
that Rebersak had said he must have light work under his doctor 's orders.
Sebough Shields said that when Rebersak talked to him about coming back
to work, Rebersak told him that he would like to have an easy job pursuant to
his doctor 's orders. Sebough Shields told Rebersak that he would see what he
could do about it. Rebersak never contacted Sebough again with respect to a
job. With the exception of the reference to an easy job, this account of the
conversation between them is almost identical with that given by Rebersak.
Robert Abdalian , Respondents ' assistant superintendent , testified that he talked
to Rebersak in the plant during October 1948, when Rebersak stopped in to pick
up his too ] box. Abdalion said that he asked Rebersak where he was going, to
which Rebersak replied, "Well, I have got another job. It ' s lighter work. Your
uncles haven 't got any light work over here for me. The work I have been doing
is too heavy , and I can't do it . You have to get me something where I have to sit
down."
Conclusions
In the final analysis, the determination of Rebersak's alleged discriminatory
discharge narrows down to the issue of whether Respondents refused to reinstate
him after his absence because of his union activities, or whether, as Respondents
contend, Rebersak did in fact ask for light work involving no heavy lifting. It is
undisputed in the record that Respondents had available no light work and no
work which did not entail some heavy lifting.
A number of factors are present which can be considered in resolving this issue.
They may be summarized as follows : None of the incidents which have been
found to be unfair labor practices by Respondents involved Rebersak. It has
been found that neither of the discharges preceding Rebersak's injury were mo-
tivated by his union activities. In effect, Rebersak testified that he could not
perform his former duties. While denying that he asked for light work, he
finally admitted that he told Respondents that he could not do heavy lifting, and
admitted that his job did require such lifting. Rebersak's injury consisted of a
fractured cartilage in the spine. Rebersak admitted having received disability
compensation from the State of Ohio for more than 2 months after lie had asked
for the return of his job. At various stages of the hearing, Respondents asked
various witnesses about Rebersak's requesting light work. These inquiries,
coupled with the nature of the injury, the time elapsed thereafter, the period of
9 Rebersak's actual testimony on this occasion was : "I didn't ask him for light or easy
work. The only thing I told him this, that I can't do the real heavy lifting, where some
of the jobs you need a helper to lift it, and I was doing that before that, before my son
started to work with me, and when my son got laid off, I was doing the job myself without
a helper, and that's the reason I think I got hurt."
SHIELDS ENGINEERING & MFG. CO. 179
disability compensation, and Rebersak's admission that he told Respondents he
could not do heavy lifting, certainly served to put the General Counsel on notice
that an issue existed on this point. It is apparent that many, if not all, of these
,questions turning on Rebersak's physical condition at the time he applied for re-
instatement could have been resolved by the testimony of Rebersak's physician.
No indication was given at the hearing that Rebersak's doctor was unavailable as
a witness. The rule is well established that when a party produces such evidence
as it is in his power to produce, its probative effect is enhanced by the silence
of his opponent, and also where the party on whom the burden of evidence as to
a particular fact has the evidence within his control and withholds it, the pre-
sumption is that such evidence is against his interest and insistence.'0 It has fre-
quently been held that even where an employer fails to produce its reasons for
a discharge the burden remains upon the Board to prove that it was discrimina-
tory." It follows with equal if not greater force when the employer does produce
its reasons, as in this case.
Under all of the circumstances, and upon consideration of the entire record, the
preponderance.of the credible evidence convinces me, and I so find, that Respond-
ents did not discriminatorily refuse to reinstate Rebersak because of his union
membership and activities, but, on the contrary, did not reemploy Rebersak be-
cause of his request for lighter and different work, which Respondents were
unable to provide.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in Section III, above, occurring in con-
nection with the operations of Respondent described in Section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
THE REMEDY
Since it has been found that Respondents have engaged in certain unfair labor
practices, it will be recommended that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondents have engaged and
are engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
"ON. L. R. B. v. Ohio Calcium Co., 133 F. 2d 721, 727 (C. A. 8, 1943).
'IN. L. R. B. V. Remington Rand, Inc., 94 F. 2d 862 , 872 (C. A. 2) ; Montgomery Ward
d Co. v. N. L. R. B., 107 F. 2d 555, 560 (C A. 7) ; Matter of Firestone Tire d Rubber
Company, 67 N. L. It. B. 584, 585.
857829-50-vol. 85-13
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Respondents have not engaged in the unfair labor practice, as alleged in the
complaint, of telling their employees they would receive no wage increases if they
Joined the Union.
5. Respondents have not discharged or failed and refused to reinstate Victor
Rebersak because of his Union or concerted activities as alleged in the complaint.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in the case, it is recommended that Respondents, their
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) threatening their employees with discharge because of their Union mem-
bership or activities;
(b) questioning their employees and applicants for employment about their
Union membership or activities ;
(c) ordering their employees not to join the Union;
(d) threatening to get rid of the Union or close the plant; and
(e) in any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right, as guaranteed in Section 7 of the Act, to self-
organization, to form labor organizations, to join or assist the Union, or any other
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and to refrain from any and all of
such activities except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which, it is found, will effectuate the
policies of the Act :
(a) Post at their plant in Cleveland, Ohio, copies of the notice attached hereto,
marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director for the Eighth Region, shall, after being signed by Respondents' repre-
sentative, be posted by Respondents immediately and maintained by them for
sixty (60) consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by Respondents to insure that said notices are not altered, defaced, or
covered by any other material;
(b) Notify the Regional Director for the Eighth Region in writing, within
twenty (20) days from the date of the receipt of this Intermediate'Report, what
steps Respondents have taken to comply herewith.
It is further recommended that, unless on or before twenty (20) days from
the receipt of this Intermediate Report Respondents notify said Regional Di-
rector in writing that they will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring Respondents to take
the actions aforesaid.
It is further recommended that the complaint be dismissed insofar as it al-
leges that Respondents told their employees they'would receive no wage in-
creases if they joined the Union, and that Respondents discharged or failed and
refused to reinstate. Victor Rebersak because of his Union or concerted
activities.
SHIELDS ENGINEERING & MFG. CO. 181
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
with the Board, Rochambeau Building, Washington 25, D. C., an original and six
copies of a statement in writing setting forth such exceptions to the Intermediate
Report and Recommended Order or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and six copies of a brief in support thereof; and any party may,
within the same period, file an original and six copies of a brief in support of
the Intermediate Report and Recommended Order. Immediately upon the filing
of such statement of exceptions and/or brief, the party Sliug.the- same,.shall
serve a copy thereof upon each of the other parties. Statements of exceptions and
briefs shall designate by precise citation the portions of the record relied upon
and shall be legibly printed or mimeographed, and if mimeographed, shall be
double spaced. Proof of service on the other parties of all papers filed with the
Board shall be promptly made as required by Section 203.85. As further
provided in Section 203.46, should any party desire permission to argue orally
before the Board, request therefor must be made in writing to the Board withint
ten (10). days from the date of service of the order transferring the ease to the
Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 9th day of February 1949.
ROBERT L, PIPER,
Trial Em,aiainer.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Rgiutions Act, we hereby notify our employees that:
WE WILL NOT threaten our employees with discharge because of their union
membership or activities, question our employees and applicants for em-
ployment about their union membership or activities, order our employees
not to join the Union, nor threaten to get rid of the Union or close the plant.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist MECHANICS EDUCATIONAL SOCIETY OF ALIER-
ICA, or any other labor organization, to bargain collectively through repre-
sentatives 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
,right may be affected by an agreement requiring membership in ai,labor
organization as a condition of employment as authorized in Section 8 (a) (3).
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the National Labor Relations Act. All our employees are free to become
or remain members of this Union , or any other labor organization.
CARL SHIELDS and SEROUGH S. SHIELDS,
Partners, d/b/a
SHIELDS ENGINEERING & MFG. CO.,
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.