The Efficient Tool & Die Co.

National Labor Relations Board - Board Decisions

Aug 27, 1948

79 N.L.R.B. 170 (N.L.R.B. 1948)

In the Matter of THE EFFICIENT TOOL & DIE COMPANY and DISTRICT
54, INTERNATIONAL ASSOCIATION OF MACHINISTS
Case No. 8-C-2014.-Decided August 27, 1948
Mr. Richard C. Swander. for the Board.
Stanley & Smoyer, by Mr. Eugene B. Schwartz, of Cleveland, Ohio,
for the Respondent.
Messrs. Nick Charo and Howard Tausch, of Cleveland, Ohio, for
the Union.
DECISION
AND
ORDER
On August 18, 1947, Trial Examiner Howard Myers issued his In-
termediate Report in the above-entitled proceeding, attached hereto,
finding that the Respondent had not violated Section 8 (1) and (3)
of the Act,'- as alleged in the complaint, and recommending that the
complaint against the Respondent be dismissed. Thereafter, the
Union filed exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the National Labor Relations Board has delegated its
powers in connection with this case to a three-man panel consisting
of the undersigned Board Members.*
The Respondent's request for oral argument is hereby denied, as.
the record and the briefs adequately present the issues and the posi-
tions of the parties.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
.ngs are hereby affirmed.
The Board has considered the Intermediate Report, the Union's
exceptions, and the entire record in the case, and hereby adopts the
3 The provisions of Section 8 (1) and (3) of the National Labor Relations Act, which the-
Trial Examiner herein found were not violated , are continued in Section 8 (a) (1) and
8 (a) (3) of the Act, as amended by the Labor Management Relations Act of 1947.
*Chairman Herzog and Members Reynolds and Muidock
79 N. L. R. B., No. 21.
170
THE EFFICIENT TOOL & DIE COMPANY 171
findings, conclusions, and recommendations of the Trial Examiner
for the following reasons :
1. Witnesses for the Board testified as to certain actions of the Re-
spondent alleged to have violated Section 8 (1) of the Act. This al-
leged conduct was denied by witnesses for the Respondent. The Trial
Examiner resolved the conflict in the testimony in favor of the Re-
spondent and concluded that the Respondent had not violated Section
8 (1) of the Act. We find nothing in the record which would warrant
our reversing the credibility findings of the Trial Examiner, who had
an opportunity to observe the demeanor of the witnesses.2
2. Although one or'two statements which the Trial Examiner found
were made by Cecil might in a different context be considered as a
violation of Section 8 (1), we are not persuaded that the Trial Exami-
ner's finding that no violation of Section 8 (1) occurred should be
reversed under the circumstances.
3. In his discussion of the alleged discriminatory discharges and
lay-offs, the Trial Examiner found that there was no evidence of a
custom of recalling employees, in or out of order. To this finding the
Union excepts. While the record does not conclusively support this
particular finding of the Trial Examiner, there is nevertheless sufficient
other credible evidence supporting the Trial Examiner's ultimate con-
clusion that the discharges and lay-offs were not violative of the Act.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor-
Relations Board hereby orders that the complaint issued herein against
the Respondent, The Efficient Tool Sc Die Company, Cleveland, Ohio,,
be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr.'Richard C. Swander, for the Board.
Messrs. Stanley d- Snaoyer, by Mr. Eugene B. Schwartz, of Cleveland, Ohio, for
the respondent
Messrs. Nick Charo and Howard Tausch, of Cleveland, Ohio, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on April 24, 1947, by District 54, Interna-
tional Association of Machinists, herein called the Union, the National Labor,
Relations Board, herein called the Board, by its Regional Director for the Eighth
Region (Cleveland, Ohio), issued its complaint on May 17, 1947, against The
Matter of Lancaster Foundry Corporation, 75 N. L, R. B. 255.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Efficient Tool & Die Company, Cleveland, Ohio, herein called the respondent,
alleging that the respondent had engaged in and was engaging in unfair Tabor
practices affecting commerce within the meaning of Section 8 (1) and (3) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein
called the Act. Copies of the complaint and the amended charge, together with
notice of hearing thereon, were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent: (1) since in or about March 1946, inquired of its employees
concerning their membership and activities in behalf of the Union; (2) since
April 2, 1946, (a) made disparaging remarks about union adherents, (b) informed
the employees that the Union was neither "good nor necessary for the shop,"
(c) threatened the employees with reduction of the number of working hours if
the Union was successful in its organizational campaign, and (d) informed the
employees that if the Union continued its organizational campaign the plant
would be closed; and (3) on or about April 9, 1946, laid off Edmund Jastal and
discharged Joseph Spisak and Joseph Jost, and on or about May 15, 1946, laid
off James Takacs, and thereafter refused to reinstate them, because each of them
had engaged in concerted activities and assisted the Union and for the further
reason "of discouraging membership in the Union."
The answer, duly filed by the respondent on June 10, 1947, admitted all the
allegations of the complaint pertaining to the corporate existence of the respond-
ent and the nature and character of the business transacted by it and certain
other factual matters, including the allegation that the Union is a labor organiza-
tion, within the meaning of the Act. The answer denied that the respondent
committed any of the alleged unfair-labor practices and the allegation that the
respondent is engaged in commerce, within the meaning of the Act. The answer
affirmatively averred that Spisak and Jost were discharged for cause and that
Jastal and Takacs were laid off because of lack of work.
Pursuant to notice, a hearing was held from June 16 to June 19, 1947, both dates
inclusive, at Cleveland, Ohio, before the undersigned Trial Examiner, Howard
Myers, duly designated by the Chief Trial Examiner. The Board and the respond-
ent were represented by counsel ; the Union by representatives. All parties par-
ticipated in the hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence pertinent to the issues
At the conclusion of the Board's case-in-chief, counsel for the respondent moved
to dismiss the complaint in its entirety for lack of proof. The respondent's coun-
sel moved to dismiss the allegations of the complaint with respect to the discharge
of Jost and with respect to Jastal's lay-off. The motions were denied. At the
conclusion of the taking of the evidence, Board's counsel moved to conform the
pleadings to the proof with respect to minor inaccuracies, such as corrections of
misspelled words, typographical errors, and the like. The motion was granted
without objection. The respondent's counsel then renewed his motions to dismiss
the complaint. Decisions thereon were reserved and are disposed of by the recom-
mendations hereinafter made. Oral argument was waived by all of the parties.
The parties were afforded the opportunity to file briefs and/or proposed findings
of fact and conclusions,of law with the undersigned. A brief has been received
from the respondent's counsel.
THE EFFICIENT TOOL & DIE COMPANY 173.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Efficient Tool & Die Company, an Ohio corporation, has its principal office-
and place of business at Cleveland, Ohio, where it is engaged in the designing,
manufacture, and distribution of tools, dies, jigs, fixtures, and special machinery.
The respondent's annual purchases of raw materials, principally steel, aggregat--
ing approximately $100,000, are shipped to its plant at Cleveland, Ohio. During
the 12-month period immediately preceding the issuance of the complaint herein,
the respondent purchased machinery valued at $35,000, about 5 percent of which
was shipped to the respondent's Cleveland, Ohio, plant from points located outside
the State of Ohio. The annual value of the respondent's finished products is more-
than $300,000 During the 12-nionth period immediately preceding the issuance
of the complaint herein, approximately $10,000 worth of finished products were
sold and shipped to customers located at points outside the State of Ohio, and
approximately $250,000 or about 80 percent were sold to customers within the
State of Ohio, who are themselves engaged in interstate commerce. More than
50 percent of the respondent's Ohio customers are engaged either in the manufac-
ture of products which in turn are sold and delivered to customers located at
points outside the State of Ohio, or in the manufacture of tools and machinery
which in turn are sold to customers who use them for the manufacture of prod-
ucts which are sold and delivered to persons located at points outside the State
of Ohio. The Board has taken jurisdiction of approximately 50 percent of the-
respondent's Ohio customers
The undersigned finds that the respondent's operations affect commerce, within,
the meaning of the Act.'
II. THE ORGANIZATION INVOLVED
District 54, International Association of Machinists is an unaffiliated labor
organization admitting to membership employees of the respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged interference, restraint, and coercion
The respondent started business in 1928, and since its inception, the credible
evidence-reveals, it has been the respondent's policy to discharge anyone who,
in its opinion, was not a satisfactory employee Likewise, when it came to lay-
offs due to lack of work, it is its policy to release those employees whom it thinks
less suitable, without regard to seniority This policy of the respondent, because
it affords no job security, was a very disturbing factor to the employees. Early
I See Consolidated Edison Co v N. L. R . B., 305 U. S. 197 ; N L. R. B v Famblatt, 306
U S. 601; N. L R B. V. Bradford Dyeing Assn, 310 U. S. 318; Southern Colorado Power
Co v N L. R. B, 111 F (2d) 539 (C. C. A. 10) ; N L. R. B v. Gulf Public Service Co.,
116 F. ( 2d) 852 ( C. C. A 5 ) ; N L. R B v . Suburban Lumber Co , 121 F. ( 2d) 829
( C C. A. 3 ), cert. denied 314 U. S 693 ; N. L. R. B. v. Stremel , 141 F. ( 2d) 317 ( C C A 10).
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in March 1946 , several of the employees communicated with the Union because,
-as Hans Frieden , a former employee , testified , the employees thought they "had
-better organize . . . before we all [are] . . . laid off."
On March 15, about 5 or 6 of the then approximately 26 employees met with
representatives of the Union in a public hall in Cleveland , Ohio. Organizational
-matters were discussed and membership application cards were given to the re-
spondent's employees. A second meeting was held at the same hall on April 5,
-which was attended by practically the same employees. Signed membership ap-
plication cards were handed to the Union's representative who attended the second'
meeting and shop stewards appointed.
During the period between the first and second meetings , the sponsors of the
union movement openly solicited members for the Union in the plant Likewise
discussions were had among the employees in the plant during working hours
regarding the merits of the Union Some employees expressing themselves in
favor of, others against, the Union. The record reveals no credible evidence of
any interference with the solicitations or with the discussions by any members
of the respondent's managerial staff. In fact, no evidence upon which a contrary
finding could be made was introduced by Board's counsel. On the other hand,
-several employees and several former employees testified to certain remarks made
to them by William Ellis , who was the respondent's superintendent from July
1945 to June 1946, and by Roy Cecil,' which remarks Board's counsel maintained
at the hearing were violative of the Act.
With respect to Ellis, former employee Hans Frieden testified, on direct
,examination, that one morning either in the latter part of March or early in
April, while driving to work with Ellis, he said to Ellis, "I think they are try-
-ing to organize the place" ; that Ellis then asked "Who do you think it is,
-Hans?"; that he replied, "Well, I don't know, Bill. I think maybe it is Takacs"
and another employee, whose name Frieden could not recall at the time he was
'At the hearing, the respondent contended that Cecil, during all the times material
-herein , was not a supervisor within the meaning of the Act In support of its contention,
the respondent called as witnesses Frank Libuda, the respondent's president, former Supei-
intendent Ellis, and Cecil These witnesses testified, in effect, that Cecil was a machinist
and had no supervisory power whatsoever . On the other hand , former employee Otto Nikki
testified that Cecil had complete charge of the grinding department . that Cecil gave ordeis
to the grinders regaiding their respective work; that Cecil assigned various jobs to the
grinders , that in the' fall of 1945 Cecil telephoned him at his home and informed him not
to report for woik for 3 or 4 days because there was not sufficient work for all the
ganders : and that several days later, Cecil telephoned him to report for work because lie
(Cecil) "would send Joe Doubeck home and let me work 3 or 4 days." Sal Artino, a former
employee, testified that after lie was hired on April 2, 1946, Cecil assigned him to the
- various jobs lie performed and gave him orders regarding what jobs to do Alton Dustin. a
-former employee , testified regarding the various assignments of work given him by Cecil
Joseph Doubeck testified that lie was laid off in the fall of 1945 by Cecil He further testi-
fied that Cecil directed the work of the grinders Employee James Takacs testified that for
the past 2 years or so , Cecil did very little manual work but confined himself to directing
the work of the grinders and that Cecil gave hint "most " of his orders with respect to his
work All the witnesses who were called by the Board testified that they always considered
Cecil the foreman of the grinding department Regarding his duties in early 1946, Cecil
testified that after receiving instructions from Ellis as to what work Ellis wanted produced,
he would ' in turn [give ] the work to the other machine operators as to their ability. . . "
Furthermore , during the various periods wlien the superintendent position was vacant, Cecil
performed the duties of superintendent The undersigned finds that,during all the'tunes
material herein , Cecil was, and still is, a supervisory employee and was so regarded by the
employees , and that the respondent is accountable for his actions and statements. See
International Association of Machinists v. N. L. R B., 311 U. S. 72.
THE EFFICIENT TOOL & DIE COMPANY 175
testifying ; and that Ellis then "dropped " the subject . Regarding the above con-
versation , Frieden testified on cross-examination as follows:
I was telling Mr. Ellis , "I think they are trying to organize the
shop."
And Ellis said-Bill came back to me and said : "Who cap you think it is,
Hans?"
I said, "Maybe it is Jim," and I say - " I think Joe, and that other fellow
by the name of Bill , the fellow who signed me up." So we would be going
along and talking about something else again.
Ellis denied making the statements attributed to him by Frieden . He specifi-
cally denied ever discussing the Union or unionization in general with Frieden.
Ellis was an honest and forthright witness Frieden did not so impress the
undersigned . Accoidingiy, the under signed finds that Ellis did not make the
statements attributed to him by Frieden.
Edmund Jastal , who was laid off on April 9,a testified that either on the day
of his lay -off or on the day previous thereto , the following incident took place :
Q. All right . Will you tell us what you and Bill Ellis did? Where were
you in the shop?
A. I was working at my machine at the time.
Q. Bill was where?
A. Bill just happened to walk over . It was just after we started work-
ing, I 'd say . about 9: 30 , 10: 00 o'clock
Q. Will you tell what happened at that time?
A. Well, right at that time , just when Bill walked over to my machine,
Mr. Libuda came out of the office , and he slammed the door pretty hard
at that time ; because it was heard all around the shop Bill Ellis lust
happened to come over to my machine at that time. I said, "It looks like
Mr. Libuda is pretty mad this morning
Bill said , "Yes,"
I said to him distinctly , "Well, if he 's mad now, what's ,,oing to happen
after the Union gets in?" Rill didn't say anything to me at the time , because
he walked over to his bench. That is where Mr Libuda was heading for.
Bill walked over these . Bill didn 't say anything to me at this time.
Trial Examiner iIMYERS Who was the pasty that slammed the door?
The WITNESS . Mr. Libuda, the owner.
Regarding the Jastal incident , Ellis testified that on the day he laid off Jastal,
the latter said to him , "Frank (Libuda ) looks mad this morning"; that he replied,
"That's usual " ; and that he walked away from Jastal after Jastal said, "He will
be madder when the Union gets in here ." Irrespective of whether Jastal's version
or that of Ellis is accepted as being the correct account of what was said by either
of them on the aforesaid occasion , it is manifestly clear that Ellis ' remarks cannot
be construed as being prohibited by the Act.
With respect to Cecil, Joseph Spisak, who was discharged on April 9; testified
that on either April 7 or 8, Cecil said to him, "I understand we are going to have
a union here " ; that after replying in the affirmative , Cecil then said , "Well, I
know one thing , if we join the Union or if we get into the Union , Frank [Libuda]
This lay -off is discussed more fully below.
This discharge is discussed at length below.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will cut us to 40 hours" ; that he replied, "Well, if we can make as much in 40
hours as we are making in 45, it would be 0. K., by me." Spisak further testified
that during the course of this conversation, Cecil asked hint if he were in favor
of the Union and that he replied that he was. Regarding this conversation, Cecil
testified as follows :
Well, I don't know whether I can give it word for word, but I remember
asking him (Spisak) what he thought about the union. And he seemed to
think it was a very good idea. I remember the point I tried to bring out to
him was the fact that the union possibly would bring things down to 40
hours, and he seemed to think that if you got as much for 40 hours as you
got for 45, that was the thing to be concerned about. And my concern was
more with what I took home on pay day, rather than what I got for an
hourly rate.
Cecil denied that, during the above conversation, he had asked Spisak whether
he was a member of the Union. In the main, there is no important difference
between Spisak's version and that of Cecil as to what was said by each of them
on that occasion. A careful reading of the record with respect to the entire
conversation clearly shows that it was evident from Spisak's remarks to Cecil
that the former was a member of the Union. This fact, coupled with the unreli-
ability and questionable character of Spisak's entire testimony, leads the under-
signed to the conclusion that Cecil did not ask Spisak whether or not he was a
member of the Union.
Joseph Jost, who also was discharged on April 9, testified that on the day he
was discharged,` he stopped at Cecil's work bench and that the following then
ensued :
.. . "I heard, Roy, you joined the Educational Association, too." He
looked up and said, "Who told you that? What for?"
I said, "Well, somebody said so." Then Roy proceeded to enlarge on the
subject of unions. He said he knows for sure that the Company would not
like a Union. "Well," I said, "That is the Company's privilege." Then he
said he knows that wages will not-if wages will be increased on account of
joining the Union, the hours will be decreased ; and that he, as a wage earner,
is concerned with the amount he takes home, not what he gets per hour, or-
Cecil testified that the above conversation took place a day or two before Jost
was discharged and that the following was said by each of them on that occasion
He (Jost) came up and he said, "I understand you joined the-Educational
Society?"
And I said, "Why, yes."
And he said, "Well, I think it is a good idea if we all join up and then we
will have peace like a big family here," and so on.
And then I began to point out, as I did with Spisak, as I have already stated,
that it wasn't my interest as to the hourly rate as to what it would be, but
what we took home at pay day.
James Takacs, who was laid off on May 15,° testified that on April 5, Cecil
asked him if he intended to attend a meeting that evening ; that he then asked
Cecil to what meeting he was referring because he knew of no meeting scheduled
for that evening, that Cecil replied that he referred to the one the Union had
Jost's discharge is,discussed at length below
° The lay-off of Takacs is discussed at length below.
THE EFFICIENT TOOL & DIE COMPANY 177
called for that evening; and that he then said, "No, sir, Roy, I don't have nothing
to do with that." Cecil admitted that he asked Takacs whether he intended
to attend the Union's meeting but added that he was not interested in whether
Takacs intended to attend a union meeting but asked the question solely for the
purpose of ascertaining whether Takacs, a member of the respondent' s bowling
club, intended to bowl that evening, a regular scheduled bowling night. In fact,
Takacs attended the Union meeting that night and then met Cecil and the other
members of the bowling club at the bowling alleys and bowled with them
Former employee Sal Artino was first employed by the respondent on April 2,
1946. He obtained his job through Cecil. Arturo testified that shortly after
being hired, Cecil asked him how he "felt" about the Union and whether anyone
asked him to join, and that Cecil also said, "I don't think you would cause us any
trouble by joining the Union'"; that he "didn't exactly tell (Cecil) that I like the
Union"; that on several occasions thereafter Cecil asked him to try to find out
what the employees, especially Takacs, thought of the Union; and that he always
told Cecil that, "I didn't hear a thing about the Union at all." Artino further
testified that about 2 weeks after lie started working for the respondent, Cecil
assigned him to the machine on which Takacs was working and on several occa-
sions thereafter Cecil requested him to "be friendly with Jimmy (Takacs) and find
out his views about different matters in the shop, and who he (Takacs) liked and
who he disliked, and find out it he had any dealings with the Union"; and that
he always repotted to Cecil "that Jimmy didn't mention a word about Unions or
fellows or anything else while we were working together" Cecil, while admitting
that lie had talked with Artino about unions in general, denied that he had ever
asked Artino to spy on any employee in order to ascertain who,were or who were
not members of the Union or that he ever said to Artino that Artino should not
cause the respondent "trouble by joining the Union." The record is clear that
solicitation was carried on openly in the plant It is also clear that it was carried
on in Cecil's presence In fact, Cecil admitted that he was aware of the union
activities of the employees. Furthermore, Jost, Spisak, Takacs, and Artino
testified to the various conversations each of them had from time to time with
Cecil. The undersigned, under the circumstances, does not credit Artino's testi-
mony regarding being requested by Cecil to spy upon the union activities of the
employees. Cecil did not need any informer ; from his own observations he was
able to ascertain who among the employees were members of the Union. The
undersigned credits Cecil's denials regarding these matters.
The undersigned is of the opinion, and therefore finds , that the contentions of
L'oand's counsel that the remarks made by Cecil to Jost, Spisak, and Takacs are
violative of the Act are without merit. The statements were nothing more than
an expression of Cecil's own personal opinion. Cecil, whose version the under-
signed accepts, did not express any concern about the Union organizing the plant,
but was concerned about his own welfare. He was interested only in the amount
of "take home pay" lie would receive if the Union successfully organized the
plant He did not illegally disparage the Union or any of its officers or members.
He made no statement which properly could be construed as coercive. Since
Cecil's statement lacked all the elements which the Board and Courts uniformly
have held necessary and essential to base a finding that managerial utterances
are not protected by the Constitution, it is found that the remarks attributed to
Cecil by Jost, Spisak, and Takacs are not such as are proscribed by the Act.'
T See N. L R. B . v. Reynolds International Pen Company , 162 F. ( 2d) 680, decided June
24. 1947 (C C. A. 7) ; N. L. R. B. v. Ross Gear & Tool Co ., 158 F. ( 2d) 607 (C. C. A. 7) ;
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, the undersigned will recommend that the allegations of the com-
plaint that the aforesaid remarks and activities of Cecil and Ellis were in contra-
vention of the Act be dismissed.
The complaint also alleged that the respondent, through its president, Frank
Libuda, on or about April 9, 1946, informed its employees that if the Union's_
organizational campaign continued he would shut the plant. No evidence was
introduced to support this allegation. Accordingly, the undersigned will recom-
mend that the complaint in this respect be dismissed.
B. The alleged discriminatory discharges
The complaint alleged that, in violation of the Act, the respondent discharged
Joseph Spisak and Joseph Jost on April 9, 1946, and on the same day laid off
Edmund Jastal, and on May 15, 1946, laid oft James Takacs. In its answer the.
respondent averred, and at the hearing contended, that Jost and Spisak were
discharged not in violation of the Act but for cause, and that Jastal and Takacs
were laid off due to lack of work. The facts pertaining to the above-named indi-
viduals will be discussed seriatim:
Joseph Jost was hrst employed by the respondent in January 1941, as a tool
maker ; later he became a jig bore operator. No fault was ever found with his
work nor with his ability to perform the various tasks assigned to him and the
respondent does not claim that he was discharged for any reason except that.
commencing about a month or so before April 9, 1946, Jost became such a quarrel-
some and contentious employee that it was obliged to sever his employment.
Jost, although requested several times while in the respondent's employ to
join the Union, refused to do so. There is some evidence that he joined the
Union after his discharge, but the record is silent as to when this affiliation
took place. Board's counsel contended at the hearing, that when Jost said
to Cecil early in the day of Jost's discharge, "I heard, Roy, you joined the
Educational Association, too," Cecil had every reason to believe that Jost was
a member, or at least in sympathy with the organizational campaign, of the
Union. Board's counsel laid great stress in his argument against the motion
to dismiss the complaint as to Jost, on the implication that Cecil placed upon the
word "too" in the above-quoted statement of Jost. Viewed in its context, Board's
counsel argued, the word "too" conveyed to Cecil that Jost was for the Union and
hence an employee with whom the respondent must deal This, he continues,
was demonstrated by the discharge of Jost several hours after he had made the
statement. No such inference can be drawn from the credible evidence adduced
at the hearing. Cecil testified, and the undersigned finds, that Jost asked him
whether he had joined the Educational Association ; that he assumed Jost meant
that he joined the Union; that he replied that he had not; and that he then
explained to Jost that, as far as he personally was concerned, the Union would
reduce his "take home pay." Cecil did not add the word "too" in quoting Jost.
No inference can properly be drawn, such as suggested by Board's counsel. His
argument may have some weight under certain other conditions, but upon the
record herein, his argument is without merit.
Assuming, argucndo, that the respondent had actual knowledge that Jost was
a member of the Union, still a finding could not properly be made that his dis-
charge was brought about by such membership for the credible evidence would
not support such a finding. The record reveals, as the respondent contended,
N L R B. v. Caroline Mills, 158 F. ( 2d) 793 (C. C. A. 5) ; N. L R. B. v. Montgomery Ward"
Co, 157 F. ( 2d) 486 (C C. A. 8 ) ; Jac.sonville Paper Co. v. N. L. R. B., 137 F. (2d) 148-
(C. C. A. 5).
THE EFFICIENT TOOL & DIE COMPANY 179=
that Jost was discharged' because he spent too much time going from and to the,
tool crib to secure tools and with provoking arguments with Carl Auletta, the
tool crib attendant.
It seems that for a period commencing at least a month before his discharge,.
Jost would' habitually complain to Auletta about the sharpness of certain tools
he had requested of Auletta ; that Jost, on occasions, would stand at the tool
crib window and examine the proffered tools with a magnifying glass; that
Jost rejected most of the tools on the ground that they were not sharpened-
enough ; that on several occasions, Jost rejected new unused tools on the same,
ground ; that several days prior to Jost's discharge, after Auletta had repeatedly
complained to Ellis and Libuda about Jost's conduct, Libuda happened to be im
the tool crib when Jost refused to accept the tools given to him by Auletta and.
threw them on the floor of the tool crib ; that thereupon Libuda picked up the-
tools, asked Jost what fault he found with them, and after Jost stated that they-
were not sharpened enough, pointed out to Jost that all were very sharp, and
that some were new, unused tools ; that Jost made many unnecessary trips to-
thetool crib, thereby neglecting his work; that his uncalled-for arguments with
Auletta delayed other employees in receiving tools; that on one occasion Jost
kicked Auletta during an argument about a tool; and that on the day of his
discharge, Jost made a great many unnecessary trips to the tool crib and engaged'
in a great many arguments with Auletta.
The undersigned is convinced, and finds, that Jost's arguments, which he
himself provoked, the unreasonable attitude he assumed with respect to the-
rejection of the tools, and the manner with which he rejected the tools were the
motivating reasons for his discharge and not the reason alleged in the complaint.
This finding is buttressed by the demeanor of Jost while on the witness stand.
Jost impressed the undersigned as being a dominating, contentious, quarrelsome,
belligerent individual.
The undersigned finds that by discharging Joseph Jost on April 9, 1946, the
respondent did not violate the Act. Accordingly, the undersigned will recom-
mend that the allegations of the complaint with respect to Joseph Jost be
dismissed.
Edmund Jastal was first employed. by the respondent in June or July 1945,
and worked as a bore mill operator until April 9, 1946. Jastal joined the Union
during the first week in April 1946, but never attended any union meetings nor
did he take any part in the Union's campaign. In short, the extent of Jastal's
activity in behalf of the Union was the signing of a membership application-
card.
The respondent contended that due to lack of work, it decided to lay off Jastal
and have Cecil finish the job Jastal was' then doing because Cecil had no work
to do. It also contended that it had no knowledge of Jastal's union affiliation
at the time of his lay-off and even if it did know that lie was a member'of the
Union, that fact would not have played any part in its determination. The
record discloses no evidence that on or before April 9, 1946, the respondent knew
that Jastal was a member of the Union. Admittedly he took no part in any of
the Union's activities. Board's counsel contended that the respondent derived
knowledge of Jastal's Union membership from the conversation Jastal had with
Ellis on the day of Jastal's discharge or the day previous thereto is without merit-
The only mention of the word "union" in that conversation is Jastal's reference
to Libuda's being "mad" and Libuda's being "madder" after "the Union gets in." `'
8 The entire conversation is set forth above.
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Not only did the Board fail to adduce evidence upon which a finding could be
based that the respondent had knowledge of Jastal's union membership, but the
record is devoid of any anti-union motivation on the respondent's part with re-
spect.to Jastal. The record, moreover, is also devoid of any evidence upon which
.a finding could be based that the respondent suspected that Jastal was sympa-
.thetic to unions in general. Under the circumstances, the undersigned finds that
,the respondent was not motivated by antipathy for this or any other union, when
:it decided to lay off Jastal. The undersigned further finds that Jastal's lay-off
was necessitated. by business considerations. Accordingly, the undersigned will
recommend that the allegations of the complaint with respect to Edmund Jastal
,be dismissed.
Joseph Spisak commenced his employment with the respondent in September
1944, and worked continuously thereafter as a lathe operator until his discharge
on April 9, 1946. Spisak joined the Union in March 1946. The only meeting
.of the Union he attended, while in the respondent's employ, was the one held
,on March 15. Like other employees he discussed the Union in the plant. He
.did not, however, ask any of his co-workers to join the Union nor did he take any
part in the Union's organizational campaign.
At about quitting time on April 9, Ellis informed Spisak that he should return
his tools to the tool crib because he was being discharged. When Spisak asked
the cause of his discharge, Ellis replied, to quote Spisak's testimony, "for reading
the paper all the time." Ellis testified, and the undersigned finds, that he dis-
charged Spisak because about 10 days prior to April 9, Spisak, instead of watching
his machine, was reading a newspaper and two 150-pound pieces had to be
-"scrapped"; that on that occasion he told Spisak that he must not read while
-material was in his machine but if he did read, "he should at least watch his
-machine"; that on the day of Spisak's discharge, because Spisak was reading
.and not watching the machine, Spisak threaded 36 pieces of material incorrectly,
that when he reprimanded Spisak for his carelessness , Spisak replied, "What dif-
ference does it make which way they run" ; e and that Spisak "kept sitting and
he kept reading" the balance of the day. Ellis further testified, and the under-
signed finds, that Spisak, referring to the period immediately prior to April 9,
"had got so, when he would sit down to read he would turn around to his bench'
and put his elbows on the bench and his chin in his hands and read magazines"
and newspapers. Ellis also testified, and the undersigned finds, that he did not
know on or before April 9, the date of Spisak's discharge, that Spisak was a
-member of the Union.
Spisak testified that no one ever criticized his work while he was in the
-respondent's employ ; that the only "scrap" he had, was before V-J day and
Libuda "suggested a way to fix it" so that the piece could be saved from the
scrap pile ; that he had no "scrap" the day he was discharged; that throughout
his entire employment, he and all the other employees read newspapers during
-working hours and at no time was anyone told by the management not to read
during working hours; that on one occasion Libuda and he were discussing a
trade magazine article and Libuda suggested that he read the trade magazines
the respondent had in its reception room ; that Libuda, Cecil, and Ellis read
newspapers in the plant during working hours ; and that a day or two before he
-was discharged he and Cecil discussed the Union 11
:The job on which Spisak was then working called for 72 shafts ; 36 to contain right hand
.threads and 36 left hand threads.
10 Meaning , with his back to his machine.
u This conversation is set forth above
THE EFFICIENT TOOL & DIE COMPANY 181
At the hearing, the respondent maintained that it did not discharge Spisak
in violation of the Act because it did not know, at the time of his discharge or
prior thereto, that he was a member or active in behalf of the Union.- Board's
counsel contended that Spisak's Union affiliation was brought to the respondent's
attention during the conversation between Spisak and Cecil referred to imme-
diately above. Irrespective of whether or not the respondent knew of Spisak's
union affiliation while he was in its employ, the undersigned is convinced, and
finds, that Spisak's Union affiliation played no part in the respondent's deter-
mination to discharge Spisak. The undersigned further finds that about 12
days prior to his discharge Spisak was warned by Ellis to pay closer attention
to his work; that Spisak persisted in reading newspapers and magazines and to
permit such reading to interfere with his work ; " that because he permitted his
reading to divert his attention from his work, he performed imperfect work on the
aforesaid two 150-pound pieces and on the 36 shafts. Accordingly, the under-
signed will recommend that the allegations of the complaint with respect to
Joseph Spisak be dismissed.
James Takacs commenced his employment with the respondent on April 19,
1944. Until his lay-off on May 15, 1946, Takacs was a grinder. He joined the
Union in March 1946, and immediately became very active in its behalf. He
attended all meetings of the Union and was chosen as the Union's observer for
the Board's conducted election which was held on April 24, 1946.
The respondent does not question Takacs' ability to do the work assigned to him,
but contended that lack of work necessitated Takacs' lay-off on May 15. The
credible testimony of Libuda, Ellis, Cecil, and Mary Malko, the respondent's gen-
eral office clerk, coupled with certain documents introduced in evidence by the
respondent, clearly indicates that the respondent's business was steadily decreas-
ing after V-J Day and that by May 15, the situation had reached a point where
Takacs' services were no longer needed. In short, Takacs' lay-off was a normal
one. There is no substantial evidence that anyone in management evidenced
any interest in Takacs' membership and activities in behalf of the Union. Nor
is there any substantial evidence that the respondent had any antipathy for
this or any other union.
It is well settled that the Act does not interfere with the normal right of
an employer to discharge or lay off an employee for good reason ; " or at will
if such discharge or lay-off be not a violation of the statutory prohibition. In
the instant case, the respondent claims good reasons for the laying off of Takacs ;
to wit, lack of work. It would serve no useful purpose to set forth here at length
the evidence, already summarized above, to which Board's counsel points as
supporting his contention that the respondent, in discharging Jost and Spisak and
in laying off Jastal and Takacs, was motivated by anti-union antipathy. The
summary shows its substance. The undersigned finds that the composite back-
ground and the individual incidents in connection with each of the lay-offs and
discharges does not furnish sufficient evidence for the conclusion that the respond-
ent discriminatorily laid off Takacs on May 15, 1946. The union activities of
Takacs are not sufficient in themselves to support an inference that they were the
cause of his lay-off." Accordingly, the undersigned will recommend that the
allegations of the complaint with respect to James Takacs be dismissed.
12 It is significant to note that Jastal read newspapers in the plant , but, as he testified,
he "covered it up " so that the bosses would not see him reading.
i8 N L R. B. v. Fansteel, 306 U S 240 ; N L. R B. v. Jones & Laughlin, 301 U: S 1.
It N. L. R. B v. Montgomery Ward & Co, 157 F. (2d) 486 ( C C. A. 8 ) ; N. L. R. B. v.
Citizen -News Co., 134 F. ( 2d) 970 ( C C. A 9).
809095-49-vol. 79-13
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's counsel contended at the hearing that Jastal and Takaes were discrimi-
natorily refused reinstatement because alter their lay-offs the respondent adver,-
tised in a daily Cleveland, Ohio, newspaper for persons to fill jobs for which-
Takacs and Jastal testified they could fill, but that neither one,of them was,
recalled. With the disclosure of the union affiliation of Jastal and1,Takacs, the
former shortly after April 9, and the latter shortly prior to April 24, there might,
be some thread to tie the failure to recall them, or either of them, to their union.
affiliations, but it is too tenuous to be classed as substantial evidence. There is
no evidence of custom--of recalling employees, in or out of order. There clearly
were no rules of seniority. Under such circumstances; the, respondent was under,
no obligation to recall either Jastal or Takacs.15 „ In the absence of a, clear show-
ing that failure to recall Jastal or Takaes was, directly due to their union affilia-
tions, no unfair labor practice for such failure may be inferred. , . .
- On the basis of the foregoing findings of,fact and upon the entire record in the,
case, the undersigned makes the following:'
CONCLUSIONS OF LAW
1. The operations of the respondent, The'Efficient Tool & Die Company, Cleve-
land, Ohio, occur in commerce within the meaning of Section 2 (6) and (7) of
the Act.
2. The respondent has not engaged in unfair labor practices as alleged in the
complaint, within the meaning of Section 8 (1) and (3) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the complaint be dismissed in its entirety.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service of
the order transferring the case to the Board, pursuant to Section 203 38 of said
Rules and Regulations, file with the Board, Rochainbeau Building, Washington 25,
D. C., an original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or pro-
ceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and four copies of a brief in support thereof ; and any
party or counsel for the Board may, within the same period, file an original and
four copies of a brief in support of the Intermediate Report. Immediately'upon
the filing of such statement of exceptions and/or briefs, the party or counsel
for the Board filing the same shall serve 'a copy thereof upon each of the other
parties and shall file a copy with the Regional Director. Proof of service on the
other parties of all papers filed with the Board shall be promptly made as required
by Section 203.65. As further provided in said Section 203 39, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10) days from the date of service of,
the order transferring the case to the Board.
Dated August 18, 1947.
15 Matter of Burson Knitting Company, 35 N. L. R. B. 772.
HOWARD MYERS.
Trial Examiner.