Stromberg-Carlson Telephone Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 21, 1939

18 N.L.R.B. 526 (N.L.R.B. 1939)

In the Matter of STROMBERG-CARLSON TELEPHONE MANUFACTURING
COMPANY and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF
AMERICA, LOCAL No. 509
Case No. C-612.-Decided December 01, 1939
Electrical Equipment Manufacturing Industry-Agreement: not to press
charges that respondent dominated a labor organization if an election is agreed
to between respondent, Union, and labor, organization alleged to be company
dominated ; agreement given effect in order to effectuate the policies of the
Act where acquiesced in by Regional Director-Discrimination : discharges and
one demotion, for union membership and activity ; charges of, not sustained
as to six employees-Settlement : stipulation providing for reinstatement of cer-
tain cabinet-shop employees and abstention by respondent from ordering the
manufacture of radio cabinets outside its plant to discourage membership in
Union-Order: entered on stipulation except as to reinstatement provision which
had been complied with , and dismissing allegations of complaint not affected
by stipulation.
Mr. Edward D. Flaherty and Mr. William S. Gordon, for the
Board.
Hubbell, Taylor, Goodwin, Nixon & Hargrave, by Mr. T. Carl
Nixon and Mr. Arthur L. Stern, of Rochester, N. Y., for the
respondent.
Mr. J. Frank Traynor, of Rochester, N. Y., for the Association.
Mr. Roman Beck, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Electrical,
Radio & Machine Workers of America, Local No. 509, herein called
the Union, the National Labor Relations Board, herein called the
Board, by Henry J. Winters, Regional Director for the Third Region
(Buffalo, New York), issued its complaint dated January 29, 1938,
against Stromberg-Carlson Telephone Manufacturing Company,
Rochester, New York, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1), (2),
18 N. L. R. B., N. 72.
526
STROMBERG-CARLSON TELEPHONE MANUFACT'U'RING COMPANY 527
and (3) and Section 2 (6) and (7), of the National Labor Relations
Act, 49 Stat. 449, herein called the Act.
The complaint, as amended, alleged in substance that the respond-
ent (1) dominated a labor organization of its employees known as
the Stromberg-Carlson Employees Protective Association, herein
called the Association; (2) curtailed its production of radio cabinets
and discharged certain men engaged in that work, because they had
joined and assisted the Union; (3) discharged six named employees
and demoted a forelady to discourage membership in the Union; and
(4) by the foregoing acts and in other ways, interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act. Copies of the complaint, accompany-
ing notice of hearing, and an amendment to the complains were duly
served upon the respondent, the Union, and the Association.
The respondent answered the complaint as amended, denying its
material averments and alleging affirmatively, among other things,
that on June 23, 1937, the Association won a consent election held
under the supervision of the Regional Director among the respond-
ent's production and maintenance employees to determine whether
they desired the Union or the Association to represent them for the
purposes of collective bargaining. The answer further alleged that
as a condition precedent to the election, the Union agreed with the
respondent and the Regional Director that the charges set forth in
the complaint "would forever be dropped."
The Association filed a petition to intervene in the proceeding on
the ground that it had been certified by the Regional Director as the
representative of the respondent's production and maintenance em-
ployees for the purposes of collective bargaining and had entered
into a contract with the respondent which might be affected by the
determination in the proceeding. On February 4, 1938, the Regional
Director allowed the intervention with respect to all matters directly
affecting the Association.
Pursuant to notice, a hearing was held at Rochester, New York,
on February 10, 1938, before William Seagle, the Trial Examiner
duly designated by the Board. The respondent requested an ad-
journment, which was granted by the Trial Examiner. On February
15, 1938, the hearing was resumed and continued through April 7,
1938. The Board, the respondent, and the Association were repre-
sented by counsel and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. Numerous
motions and objections to the admission of evidence were made and
1 The amendment to the complaint added certain names to the group of employees
alleged to have been laid o@ following the curtailment of production In the cabinet shop.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ruled upon at the hearing. The Board has reviewed these rulings
of the Trial Examiner and, except as hereinafter noted, finds that
no prejudicial errors were committed. The rulings are hereby af-
firmed. A stipulation' was entered into during the hearing to which
the respondent, the Union, and the Board were parties, whereby the
respondent agreed (1) to reemploy at least 90 workmen laid off in
its cabinet department by May 2, 1938; (2) to refrain from hiring
new employees in that department until all men employed therein
on August 1, 1937, and thereafter laid off would be offered reemploy-
ment; and (3) in the future, to manufacture all cabinets that the
physical capacity of its plant, in terms of equipment, would reason-
ably permit and refrain from purchasing cabinets from others "for
the purpose of discriminating against members" of the Union. The
stipulation further provided that the Board might require the re-
spondent to comply with its terms as part of the order in this case.
On May 14, 1938, the affidavit of the respondent's employment
manager was submitted to the Board in which it was stated that
the respondent had offered reemployment to all of the men in thel
cabinet department who had been laid off since August 1937, and
that by May 2, 1938, 91 of such employees had returned to work.'
The Board hereby approves the stipulation.
After the hearing had been concluded, the Trial Examiner filed his
Intermediate Report,' dated June 24, 1938, copies of which were duly
served on the respondent, the Union, and the Association, in which
he stated his findings of fact and recommendations with respect to
the issues not affected by the stipulation concerning the cabinet-shop
employees. The Trial Examiner found that the respondent had com-
mitted unfair labor practices affecting commerce within the meaning
of Section 8 (1), (2), and (3), and Section 2 (6) and (7) of the Act,
and recommended that the respondent cease and desist from such un-
fair labor practices and take certain affirmative action remedial of
their effect. The respondent and the Association filed exceptions to
the Intermediate Report and the respondent submitted briefs, which
have been considered. The respondent's exceptions included an ex-
ception to a ruling of the Trial Examiner which excluded its offer
of proof in respect to the conference at which the agreement for the
consent election, mentioned in its answer, was executed.
2 A copy of the stipulation is set forth in Appendix A.
9 Our order shall accordingly be modified to the extent that the respondent has com-
plied with the stipulation.
4Acting pursuant to Article II, Section 37 (a), of National Labor Relations Board
Rules and Regulations-Series 1 , as amended , the Board on May 20 , 1938, ordered the
proceeding transferred to It for the purpose of reviewing the settlement . Since the Inter-
mediate Report was Issued after the Board had assumed jurisdiction of the proceeding,
the Board , on July 8, 1938 , acting pursuant to Article IT. Section 38 (a) and (d), of
said Rules and Regulations, validated the issuance of the Intermediate Report nunc pro
tune as of May 21, 1938.
STROMBERG-CARLSON TELEPHONE MANUFACTURING COMPANY 529
Pursuant to notice, a hearing for the purpose of oral argument
upon the exceptions was held on December 6, 1938, before the Board
in Washington, D. C. The respondent and the Association were rep-
resented by counsel, the Union by its general secretary, and all par-
ticipated in the argument.
Acting pursuant to Article II, Section 38, of its Rules and Regula-
tions, the Board, on January 25, 1939, ordered that the record be re-
opened for the purpose of receiving evidence concerning the respond-
ent's offer of proof and authorized the Regional Director to provide
for a further hearing upon due notice.
On February 10, 1939, the Regional Director issued a notice of
further hearing, copies of which were duly served on all the parties.
Pursuant to the notice, a further hearing was held at Rochester, New
York, on February 27 and.28, and on March 1, 1939, before Martin
Raphael, the Trial Examiner duly designated by the Board. All the
parties who appeared at the first hearing again appeared, were rep-
resented by counsel, and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties at
the hearing. Certain motions and objections to the admission of evi-
dence were made and ruled upon during the hearing. The Board has
reviewed the rulings of the Trial Examiner at the hearing and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
Acting pursuant to Article II, Section 38 (d), of its Rules and
Regulations, the Board, on July 8, 1939, vacated the Intermediate
Report and ordered that the Trial Examiner who presided at the
second hearing issue no Intermediate Report, and that Proposed Find-
ings of Fact, Proposed Conclusions of Law, and a Proposed Order
should issue. The Board further ordered that the parties should have
ten (10) days from the receipt of the Proposed Findings, Proposed
Conclusions, and Proposed Order to file exceptions, to request oral
argument before the Board in Washington, D. C., and to request per-
mission to file a brief with the Board.
The Union requested the Board to extend its time for the filing of
exceptions to the Proposed Findings, Proposed Conclusions, and
Proposed Order, and the Board extended its time for the filing of
such exceptions until December 1, 1939. No exceptions, however, to
the Proposed Findings, Proposed Conclusions, and Proposed Order
were filed by any of the parties.5 Although the Union did not file
any exceptions to the Proposed Findings of Fact, Proposed Conclu-
5 The respondent informed the Board subsequent to the issuance of the Proposed Find-
ings, Proposed Conclusions, and Proposed Order that it had fully complied with the
terms of the stipulation embodied in subdivision ( b) of the Proposed Order relating to
the posting and mailing of notices . The Regional Director reported to the Board that
such was the case . Accordingly , that subdivision of the Order has been eliminated.
.530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sions of Law, and Proposed Order, it requested oral argument before
the Board in Washington, D. C. The Union's request is hereby
denied.
Upon the entire record of the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a New York corporation having its principal
place of business in Rochester, New York, where it is engaged in the
manufacture of telephones, switchboards, radios, and other electrical
equipment. During 1937 the respondent purchased raw and fab-
ricated material exceeding in value $1,000,000, of which approximately
56 per cent was transported from other States to its plant in Rochester,
New York. The sales of the respondent during that period exceeded
$1,000,000 and the respondent shipped approximately 70 per cent of
the products it sold to points outside the State of New York. The
respondent maintains sales offices and warehousing facilities in Chi-
cago, Illinois, San Francisco, California, and Kansas City, Missouri.
II. THE ORGANIZATIONS INVOLVED
United Electrical, Radio & Machine Workers of America, Local
No. 509, affiliated with the Committee for Industrial Organization, is
a labor organization admitting to its membership production em-
ployees of the respondent, exclusive of persons having the authority
to hire and discharge.
Stromberg-Carlson Employees Protective Association is an unaffil-
iated labor organization admitting to membership employees of the
respondent.
III. THE AGREEMENT COMPROMISING THE ALLEGED UNFAIR LABOR
PRACTICES
A. The compromise
In June 1937 the Union filed a petition with the Regional Director
for an investigation and certification of representatives, in which it
stated that it represented 482 of all the respondent's production and
maintenance employees, numbering approximately 801 persons.
Prior to filing the petition, the Union's representative, August Hein,
informed the Regional Director that the Association was company
dominated. Hein testified that he discussed with the Regional
Director the advisability, from the standpoint of the Union, of pro-
ceeding with an election rather than filing a charge ,that the Asso-
ciation ' was company dominated. Hein stated that the Regional
Director referred to the delay necessarily incident to a disposition
STII'OMBERG-CARLSON TELEPHONE MANUFACTURING COMPANY 531
of unfair labor practice charges and told him that, in view of his
statement that the Union represented a clear majority of the work-
men, a consent election would be the most expeditious method of
attaining the Union's ends. - Hein accepted this advice of the Regional
Director and accordingly did not file charges at that time. In fact,
the earliest formal charge in this proceeding was filed in October
1937, which was more than 3 months after the consent election herein
considered. Following his conversation with the Regional Director,
Hein discussed the matter further with certain members of the Union
and informed them that the Regional Director intended to arrange
a conference to see whether the respondent and the Association would
agree to a consent election.
On June 23, 1937, at the request of the Regional Director, a con-
ference took place at the Powers Hotel in Rochester, New York, for
the purpose of ascertaining whether the parties would consent to
an election under his supervision to determine the preference of the
respondent's employees in regard to a collective bargaining repre-
sentative. The respondent, the Union, and the Association were rep-
resented at the conference, and signed a written consent and agree-
ment providing for an election that very afternoon under the direction
of the Regional Director to determine whether a majority of the
respondent's production and maintenance employees wished to be
represented by the Union or by the Association for the purposes of
collective bargaining. In this agreement the respondent specifically
undertook to recognize the labor organization that won the election
as the exclusive collective bargaining agency of the employees eligible
to vote. The agreement further provided that "all parties concerned
agree that there will be no after dispute affecting the election or its
conduct or its results." Pursuant to the agreement the election was
held and the Association obtained a majority of the votes cast. The
Regional Director thereupon issued a certificate in which he certified
that:
Stromberg-Carlson Employees Protective Association was duly
chosen by the majority of the workers of the production and
maintenance departments of the Stromberg-Carlson Telephone
Mfg. Co., as their representative for the purpose of collective
bargaining and is entitled to represent all of the employees of
the production and maintenance departments of said company
in collective bargaining.
The right of the Association to appear on the ballot was vigorously
contested at the conference by the Union's representative, but he
finally yielded on this point. The Association's representatives were
reluctant at first to consent to an election since the Association and
the respondent had entered into a contract which accorded exclusive
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognition to the Association as the bargaining representative of
the respondent's employees and, among other things, granted a gen-
eral wage increase of approximately 121/2 per cent. The contract
had been executed only a few days prior- to the conference and did
not expire until July 1, 1938. The representatives of the Associa-
tion testified that they were induced to consent to the election and
thereby to hazard the validity of the contract in order to dispose of
the Union's assertion that the Association was company dominated.
The evidence concerning what took place at the conference regard-
ing a compromise of the Union's unfair labor practice accusations
is in conflict. Several witnesses for the Union testified that the
Regional Director announced that the Union withdrew its accusa-
tions only temporarily. The witnesses for the respondent and the
Association, however, said that the Regional Director told Hein im-
mediately prior to the execution of the pre-election agreement that
if the Union executed the agreement all charges would be waived;
these witnesses further testified that this statement of the Regional
Director was not qualified in any way and that they undersood that
the election would finally dispose of all pending charges.
We are thus confronted with the question whether the Regional
Director qualified his announcement relating to the withdrawal of
charges by stating that the withdrawal was temporary. At the hear-
ing the Regional Director did not recall what had occurred at the
conference, apart from the facts appearing in the records of the
Board. In resolving the conflict we have been largely guided by
the testimony of August Hein, the Union's representative. Hein
admitted that the Regional Director called him aside during the con-
ference and told him that the Uniorr would have to withdraw all
charges if it wished to have the election. He testified that he there-
upon conferred with other union representatives who instructed him
to withdraw the charges temporarily, and that he reported this to
the Regional Director. When Hein was asked on cross-examination
whether he told the other conferees that his authority was limited
to a temporary withdrawal of the charges, he replied, "I did not."
The extract from Hein's testimony which follows strongly militates
against the Union's version of what took place at the conference.
Q. As a result of what you did in that meeting in the Powers
Hotel on June 23, in regard to the withdrawal of the charges
then existing, it was your understanding, was it not, that the
slate was washed clean of labor charges of all kinds existing up
to noon of June 23, 1937, by whatever you said and did at that
meeting?
A. I withdrew the charges on the advice of Father Boland
[the Regional Director], because he had said that there could
STR'OMBBRG-CARLSON TELEPHONE MANIUFAOTURJNG COMPANY 533
not be a consent election while charges were on file . . . I
withdrew the charges for the purpose of having an election and
having the labor dispute ended.
B. Conclusions regarding the compromise
We find that the Regional Director's announcement concerning the
charges was not qualified by the statement that their withdrawal
was temporary, and that Hein agreed to their unconditional with-
drawal prior to signing the pre-election agreement. We find, fur-
ther, that the respondent and the Association executed the consent
agreement in reliance upon a representation implicit in the conduct
of the union representative that if they did so, the Union would not
press charges with respect to any alleged unfair labor practices
then existing. The circumstances surrounding the execution of the
pre-election agreement clearly indicated to the respondent and the
Association that the Board through its agent acquiesced in this repre-
sentation and undertaking of the Union.
We shall refrain from considering the record so far as it relates
to unfair labor practices violative of Section 8 (2) of the Act al-
legedly committed by the respondent prior to June 23, 1937, because
we believe that the policies of the Act will best be effectuated by
observing the compromise of such charges implicit in the circum-
stances attending the execution of the pre-election agreement of
June 23, 1937.1
6In Matter of Godchauw Sugars, Inc. and Sugar Mill Workers ' Union, Locals No. 21177
and No. 2188, affiliated with the American Federation of Labor, 12 N. L. R. B . 568, the
Board said :
It is true that under the Act the Board upon charges of unfair labor practices
being filed and a hearing upon complaint had, may in its discretion proceed to a
determination of such charges irrespective of whether a representation or under-
taking, such as the above , was made or assumed . Nevertheless, effective administra-
tion of the Act and furtherance of its policies require that the Board pay scrupulous
regard to such a representation and undertaking of its agent, where, as here, they
relate to matters of adjustment.
In Matter of Shenandoah -Dives Mining Company and International Union of Mine, Mill &
Smelter Workers , Local No. 26, 11 N. L. R. B. 885 , which involved an agreement , partici-
pated in by an agent of the Board , for the compromise of certain alleged unfair labor
practices of the employer , the Board said :
Although we do not agree that the compromise agreement estops the Board from
proceeding herein, we believe that effective administration of the Act requires that
the Board 's agents have the respect and confidence of labor organizations and
employers with whom their work brings them in contact . Repudiation of agree-
ments entered into and relied on in good faith necessarily impairs such respect
and confidence . It may well be that the Regional Director intended the instant
agreement to be subject to acceptance by the complainant , Giecek, or approval by
the Board , or both. There is, however , no evidence to that effect . The respondent
apparently relied and acted upon the agreement , reinstating an employee the
legality of whose discharge had not been adjudicated . We believe the policies of
the Act will best be effectuated by giving effect to the agreement and refraining
from consideration of the alleged unfair labor practices . The complaint will be
dismissed.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since, upon all the evidence, we do not think that the respondent
engaged in conduct violative of Section 8 (2) of the Act after June
23, 1937, which would warrant our considering the events prior to
that--date as part of a continuous course of conduct forbidden by
the Act ,7 we shall dismiss the complaint in so far as it alleges that
the respondent dominated and interfered with the formation and
administration of the Association.
IV. THE ALLEGED DISCRIMINATION IN REGARD TO HIRE AND TENURE OF
EMPLOYMENT
The complaint alleged that the respondent discharged six 8 em-
ployees because of their union membership and activities, and de-
moted a forelady to discourage membership in the Union. The re-
spondent denied these charges.
In determining the respondent's motive for terminating the services
of these employees, it is necessary to consider the following facts
stipulated by counsel for the Board and the respondent at the
hearing :
Commencing in the early fall of 1937 and continuing until the
early winter of 1937-1938 the radio industry generally suffered
a decline which was more than seasonal, and which necessitated
the laying off of numerous employees engaged in the radio in-
dustry. . . . The same general conditions . . . necessitated
the laying off of more than 40 percent or upwards of 400 em-
ployees of the Stromberg-Carlson Telephone Company engaged
in the production of radios, such lay-offs beginning in August
of 1937 and continuing to and throughout the early part of
March 1938.
Thomas B. Carter
Carter, the financial secretary of the Union, began to work for the
respondent in August 1936. On June 7, 1937, he was transferred
from the radio assembly to the salvage department where he remained
for 1 day and was then transferred to the cabinet-finishing depart-
ment. He remained in the latter department until November 9, 1937,
when he was laid off for lack of work.
T Cf. Matter of Hope Webbing Company and Textile Workers Organizing Committee of
the C. I. 0., Local 111, 14 N. L. R. B. 55, in which the Board recognized that its policy
of refraining from considering events prior to a consent election held under the circum-
stances there present would not preclude consideration of the respondent's entire course
of conduct if, after the election, the respondent engaged in acts violative of the spirit of
the election agreement.
8 At the hearing the complaint was dismissed on motion of counsel for the Board as to
Jean Pantolfo, one of these employees.
STROMBBRG-CARLSON TELEPHONE MANUFACTURING COMPANY 535
Carter contended that his transfer to the cabinet-finishing depart-
ment was motivated by his union activity, since the men in the
cabinet-finishing department were subject to the earliest seasonal lay-
off.
When Carter first sought employment with the respondent, he
asked for work as a "touch up man," the kind of work to which he
was assigned in the cabinet-finishing department. Carter readily
admitted that his work was more agreeable in the finishing depart-
ment than it was in the assembly department and that he earned
as much in that department as he had previously earned. The re-
spondent's superintendent testified that Carter was not retransferred
to the assembly department because he was doing well and earning
more money in the new department.
We do not think that the evidence is sufficient to warrant a finding
that the respondent discriminated against Carter because of his union
activity.
F. Arthur Little field
Littlefield was a member of a union committee that protested
against certain conduct of members of the Association. He was em-
ployed by the respondent in July 1937 as an aligner of radios, and
was laid off on January 7, 1938. When Littlefield inquired of his
foreman how long the lay-off would continue, the latter replied,
"Well, don't worry Art, I will see that you get back just as soon as
possible." His lay-off slip stated that he had been laid off for lack
of work only "until notified."
On September 22, 1937, when work in the aligning room became
slack, Littlefield was given assembly work that he regarded as less
desirable, while other employees having less experience than he were
kept in the aligning room. Though Littlefield did not deny that it
was necessary for business reasons to reduce the aligning force he
felt that he should have been retained in preference to these other
employees. The falling off of work in the aligning room progressed
so rapidly after Littlefield's transfer that at the time of the hearing
only a supervisor and one employee remained at that work. It is
significant that the employee so retained is a member of the Union.
Pilling, Littlefield's foreman, testified that he transferred Little-
field before the other aligners because Littlefield was the least efficient
aligner. Pilling stated that he based his opinion of Littlefield's work
upon the relatively higher number of radios aligned by Littlefield
that had been rejected on further test. Even if Pilling's opinion of
Littlefield's work were not well founded, we do not think that his
transfer from the aligning room was discriminatory; nor do we think
that his subsequent lay-off in January 1938 was due to his union
283029-41-vol. 18--35
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity. Seventeen other men in his department were laid off the
same day that he was laid off. Among them were two aligners whose
longer retention in the aligning room Littlefield considered dis-
criminatory. Evidence was submitted by the respondent to explain
why certain men having less seniority than Littlefield were retained
after his lay-off. The record shows, however, that the respondent
did not follow a seniority policy to any great extent in determining
lay-offs, and that only when other factors were equal did it give
departmental seniority any weight. In view of the respondent's
failure to observe, seniority as the controlling factor in lay-offs, its
disregard in a particular case is not sufficient in itself to establish
discrimination. But even if seniority had been given greater weight,
we do not think that there is any reason to doubt the respondent's
explanation for having retained the other employees in preference to
Littlefield. Of the three men retained in Littlefield's department
who had less seniority than he, one was a union member who had
previously been reinstated at the request of the Regional Director,
and the other two had received special training for the work in which
they were engaged.
We find that Littlefield's transfer and subsequent lay-off were not
due to his union activity.
Albertina Culhane
Culhane began to work for the respondent in June 1936 and was
laid off on October 12, 1937. At the time of her lay-off there was
no work available of the kind in which she and eight other women
had been employed. The eight others were also laid off the same
day. The exhaustion of their work was due to the general falling off
of business, previously noted, that ultimately necessitated the lay-off
of more than 400 employees. The effect of the general business
decline in Culhane's department is graphically revealed by an analysis
of the dismissal dates of the 62 9 women in her department who had
the same seniority as she, or less. Twenty-four of these women were
.laid off prior to her dismissal, eight others on the same day, fourteen
others within 3 days thereafter, and the rest by the end of November
1937.
After she was notified of her lay-off, Culhane told the respondent's
superintendent that she greatly needed the work, and that others
having less seniority were being retained. The superintendent in-
formed her that since the amount of business in the radio department
was diminishing, he did not wish to teach her a new operation.
Nevertheless, he agreed to consider her case further. That after-
"One woman resigned and another was transferred to general office work.
STR'OMBERG-CARLSON TELEPHONE MANUFACTURING COMPANY 537
noon the foreman of the radio department instructed her to report
for work on the following Monday and , according to Culhane,
remarked that "he didn't know at the time that I needed the work
so badly-I believe he said he would find some temporary work for
me to do." She worked thereafter in another department for a
period of 8 working days and was again laid off.
Although Culhane was a member of the Union 's negotiating com-
mittee, we find that the respondent did not discriminate against her
because of her union membership or activity.
Howard Guess
Guess, a member of the Union's bylaws committee, was first
employed by the respondent in March 1934. On October 27, 1937,
he was laid off, allegedly for lack of work. Although Guess admitted
that others had previously been laid off because work was slack in
his department, he contended that Abram Zonneyville should have
been laid off before him, since he had greater departmental seniority
than Zonneyville. The respondent contended that it kept Zonney-
ville in preference to Guess because Zonneyville was the better work-
man and could perform a certain operation that required greater
strength than Guess possessed. The record shows that Zonneyville,
who was 46 years of age at the time of the hearing, had first applied
for work with the respondent when he was 14 years of age, and that
he was a boyhood friend of Micklei, the foreman of the department.
We think that these circumstances explain Zonneyville's retention
in preference to Guess. Though Guess was a member of a union
committee, there is no showing that his union affiliation motivated his
lay-off.
Nick Van de Sande
Van de Sande began to work for the respondent on October 23, 19351
in the coil-winding department. On November 9, 1936, he was trans-
ferred to the maintenance department, where he remained until
November 12, 1937, the date of his lay-off. At the hearing, the
respondent admitted that it did not intend to rehire him, since it
contended that his lay-off was due to incompetency, neglect of duty,
and his deliberate infraction of the rule against smoking in the plant.
Van de Sande was a member of the Union's organizing committee
and attributed his dismissal to his union activity.
In August 1937, while Roy F. Scranton, a member of the Union,
and Van de Sande were removing a panel of electrical equipment
having a 440-volt current, a short circuit occurred. Scranton there-
upon asked Van de Sande not to touch the equipment until he called
their foreman. When Scranton returned with the foreman, they
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
saw Van de Sande attempting to remove the fuses with a pair of steel
pliers. The foreman testified that there was no necessity for the
immediate removal of the fuses , and that Van de Sande incurred the
danger of serious injury to himself and of damage to the machinery
when he used steel instead of fibre pliers that were available . Though
Van de Sande denied responsibility for the short circuit, he did not
deny that he had used steel pliers in removing the fuses. In October
1937 , Van de Sande carelessly broke an electric -light reflector, and
at the hearing admitted his responsibility for its breakage. In
addition to these incidents , which were testified to by Scranton, a
fellow union member , the record shows that Van de Sande frequently
left his work to visit other parts of the plant. He also admitted that
he had smoked in the boiler room in violation of the respondent's
rule.
Under the circumstances, we do not think that the evidence estab-
lishes that Van de Sande was laid off for union activity.
Elsie Jones
On November 15, 1937 , Elsie Jones, a forelady in the coil-winding
department , was demoted from her supervisory position and assigned
to production work. The respondent contends that her demotion
was due to the necessity of reducing the cost of supervision in her
department , resulting from the great decline in business. While
Jones did not question the existence of such necessity , she complained
of the retention of Walter Knobles as a supervisor after her demo-
tion, since Knobles had a shorter service record in her department.
Though Jones was never a member of the Union and had never
engaged in union activity , she was a friend of the union president.
The respondent 's witnesses testified that Knobles was retained in
preference to Jones for the reason that the work of a foreman was
largely mechanical and that a man was needed as an understudy to
Micklei , the foreman of the department . At the time of Jones'
demotion, Knobles was the only male supervisor in that department
other than Micklei. We do not think that the respondent was in-
fluenced in demoting Jones by her friendship for the union president.
We find that by terminating the services of Carter , Littlefield,
Culhane, Guess, and Van de Sande, and by demoting Jones, the
respondent did not discriminate in regard to their hire and tenure
of employment or in regard to the terms or conditions of their
employment to discourage membership in a labor organization. The
allegations of the complaint with respect to these persons will there-
fore be dismissed.
STROMRERG-CARLSON TELEPHONE MANUFACTURING COMPANY 539
On the basis of the foregoing findings of fact and upon the entire
record in the case, including the stipulation above mentioned, the
Board makes the following :
CONCLusIONs OF LAW
1. The operation of the business of the respondent constitutes a
continuous flow of trade, traffic, and commerce among the several
States, within the meaning of Section 2 (6) of the Act.
2. United Electrical, Radio & Machine Workers of America, Local
No. 509, and Stromberg-Carlson Employees Protective Association
are labor organizations, within the meaning of Section 2 (5) of the
Act.
3. The respondent has not engaged in unfair labor practices,
within the meaning of Section 8 (2) of the Act.
4. By terminating the employment of Thomas B. Carter, Arthur
Littlefield, Albertina Culhane, Howard Guess, and Nick Van de
Sande, and by demoting Elsie Jones, the respondent has not engaged
in unfair labor practices, within the meaning of Section 8 (1) and
(3) of the Act.
5. The respondent has not engaged in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
ORDER
On the basis of the above findings of fact, conclusions of law,
and stipulation, and pursuant to Section 10 (c) of the National
Labor Relations Act, the National Labor Relations Board hereby
orders that Stromberg-Carlson Telephone Manufacturing Company,
Rochester, New York, and its officers, agents, successors, and assigns
shall take the following affirmative action which the Board finds will
effectuate the policies of the Act :
Produce in its plant all cabinets which its physical capacity in
terms of equipment reasonably permits. In determining capacity
there shall be taken into consideration, however, the demand for any
particular model or models at a given time, so as to make possible
the meeting of current demands. The respondent shall not in the
future place orders for radio cabinets outside its plant for the purpose
of discriminating against members of United Electrical, Radio &
Machine Workers of America, Local No. 509.
AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges
that the respondent has engaged in unfair labor practices within the
meaning of Section 8 (1) and (2) of the Act, and that the respondent,
by terminating the employment of Thomas B. Carter, Arthur Little-
field, Albertina Culhane, Howard Guess, and Nick Van de Sande,
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and by demoting Elsie Jones, has engaged in unfair labor practices,
within the meaning of Section 8 (3) of the Act, be, and it hereby is,
dismissed.
APPENDIX A
1. It is stipulated and agreed by and between the Respondent, the
Stromberg-Carlson Telephone Manufacturing Company, by its Coun-
sel, and the United Electrical Radio & Machine Workers of America,
Local 509, by its representative, and the National Labor Relations
Board, by its Counsel, that, subject to the approval of the National
Labor Relations Board, the Board may enter as part of its order in
this case an order for the following affirmative action in connection
with the allegations of the complaint and amended complaint charg-
ing that the Respondent discriminated with respect to the hire and
tenure of employment of those of its employees named in Group B of
the complaint and amended complaint and whose names appear in
the appendix attached to this stipulation and made a part hereof :
The Respondent, Stromberg-Carlson Telephone Manufacturing
Company, shall take the following affirmative action which the Board
finds will effectuate the policies of the Act :
1. Offer re-employment to all former employees of Departments
14, 16 and 18 who were employed by it in August, 1937, as soon as
work is available. Re-employment shall be offered in the following
order as far as practicable : Those who were laid off last in each de-
partment shall be called back first in that department until all those
who have been laid off have been offered re-employment.
2. Re-employ, on or before May 2nd, 1938, at least ninety of the
workers from Departments 14, 16 and 18 who were employed by it
in August, 1937, and who have since been laid off ; of the ninety so
re-employed as many as possible shall be employed in Department 14,
16 and 18. Further, Respondent shall make every effort to re-employ
these workers on or before April 18, 1938. Rehiring shall commence
as soon as practicable.
3. Hire new employees in any of Departments 14, 16 and 18 to do a
job formerly done by any former employees of those departments
employed by the company in August, 1937, only after all such former
employees have been offered re-employment in such departments.
4. Produce in its plant all cabinets which its physical capacity in
terms of equipment reasonably permits. In determining capacity
there shall be taken into consideration, however, the demand for any
particular model or models at a given time, so as to make possible the
meeting of current demands. The Respondents shall not in the future
place orders for radio cabinets outside its plant for the purpose of
STR'OMBERG-CARLSON TELEPHONE MANUFACT'UILING COMPANY 541
discriminating against members of Local 509, United Electrical Radio
R Machine Workers of America.
5. Immediately post notices on the bulletin boards, or in conspicu-
ous places, in Departments 14, 16 and 18, and on the main bulletin
board in the plant, and mail one copy thereof to each employee who
was working in departments 14, 16 and 18 in August, 1937; such
notices shall incorporate the provisions hereinabove set forth. Said
notices shall remain posted for at least sixty consecutive days from
the date of posting.
II. It is further stipulated and agreed by and between the respec-
tive parties that in the event an order of the Board is entered and it
becomes necessary, in order to enforce the terms and provisions of so
much of said order as is entered upon this stipulation, to file a petition
for enforcement of the same in the appropriate circuit court of the
United States Circuit Court of Appeals by the National Labor Rela-
tions Board, the Respondent consents and agrees that a decree of said
Court be entered upon so much of said order as is entered by the Board
upon this stipulation.
III. It is further stipulated and agreed by and between the respec-
tive parties that the Respondent will, immediately after the date
hereof, commence compliance in accordance with the terms of the
stipulated order as aforesaid.
NATIONAL LABOR RELATIONS BOARD,
By (sd.) WM. S. GORDON.
UNITED ELECTRICAL RADIO & MACHINE
WORKERS OF AMERICA, LOCAL 509,
By (sd.) Louis ToRRE.
STROMBERG-CARLSON TELEPHONE MANU-
FACTURING COMPANY,
By (sd.) T. CARL NIXON.
Approved by WILLIAM SEAGLE (sd.),
Trial Examiner.
Dated March 22, 1938.
NOTE.-Annexed to the stipulation was an appendix containing the
names of 87 persons.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision and Order.