The Hays Corp.

National Labor Relations Board - Board Decisions

Oct 23, 1945

64 N.L.R.B. 406 (N.L.R.B. 1945)

In the Matter of THE HAYS CORPORATION and INTERNATIONAL MOLD-
ERS AND FOUNDRY WORKERS UNION OF NORTH AMERICA, LocAL 316,
A. F. L.
Case No. 13-C-2484.-Decided October ,°03,1945
Mr. Gustaf B. Erickson, for the Board.
Fyffe & Clarke, by Mr. John Harrington, of Chicago, Ill., for the
respondent.
Mr. Lester Campbell, of Grand Rapids, Mich., for the Union.
Mr. Thomas A. Ricci, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed on November 9, 1944, by Inter-
national Molders and Foundry Workers Union of North America,
Local 316, affiliated with the American Federation of Labor, herein
called the Union, the National Labor Relations Board, herein palled
the Board, by the Regional Director for the Thirteenth Region
(Chicago, Illinois), issued its complaint, dated February 6, 1945,
against The Hays Corporation, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1),
(3), and (5) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint
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 : (1) that on or about October 7, 1944, the respondent ter-
minated the employment of eight named persons because of their
membership in and activities on behalf of the Union; (2) that since
on or about October 6, 1944, the respondent refused to bargain collec-
tively with the Union, which, at all times since October 4, 1944, has
been the duly designated and exclusive bargaining representative of
the respondent's employees in an appropriate unit comprising all the
molders and foundry workers at its Michigan City, Indiana, plant;
64 N. L. R. B., No. 74.
406
THE HAYS CORPORAIION 407
(3) that on or about March 1, 1940, and thereafter, the respondent
urged, warned, and threatened its employees against joining and
assisting the Union; and (4) that by the acts and statements described
above, the respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
On February 16, 1945, the respondent filed its answer in which it
admitted the allegations in the complaint as to its corporate organi-
zation and its business operations, denied the allegations of the com-
plaint with respect to unfair labor practices, and alleged that, on or
about October 7, 1944, it "permanently discontinued the operation of
its foundry."
Pursuant to notice, a hearing was held at Michigan City, Indiana,
on February 20, 21, and 22, 1945, before James C. Batten, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board
and the respondent were represented by counsel, and the Union by its
International Organizer. All parties 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 par-
ties. At the conclusion of the Board's testimony, counsel for the
respondent moved to dismiss the complaint as to Paul Centgrof and
Chas. D. Haack, two of the eight persons referred to above. This
motion was denied. Later in the hearing, counsel for the Board moved
to dismiss the complaint as to Paul Centgrof; the motion was granted
without objection. At the close of the hearing, the Trial Examiner
denied a motion by counsel for the respondent to dismiss the com-
plaint, and granted, without objection, a motion by counsel for the
Board to conform the pleadings to the proof as to minor details not
touching matters of substance. During the course of the hearing,
the Trial Examiner made rulings on other motions and on objections
to the admission of evidence. The Board has reviewed the rulings
of the Trial Examiner and finds that, save as to the respondent's mo-
tion to dismiss the complaint, no prejudicial error was committed.
For the reasons hereinafter stated, we overrule the Trial Examiner's
refusal to dismiss the complaint.
On April 16, 1945, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties, finding
that the respondent had discriminatorily discharged seven of the per-
sons named in the complaint and refused to bargain with the Union,
and recommending that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. There-
after, the respondent filed exceptions to the Intermediate Report and
a supporting brief. The Union has not filed any exceptions. loo re-
quest for oral argument before the Board was made, and none was
held.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has considered the Intermediate Report, the respond-
ent's exceptions and brief, and the entire record in the case, and finds
that the exceptions, insofar as they are consistent with the findings,
conclusions, and order hereinafter set forth, have merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Hays Corporation, an Indiana corporation with its principal
office and plant located in Michigan City, Indiana, is engaged in the
manufacture of combustion instruments and boiler controls. For the
operation of such plant, the respondent causes large quantities of ma-
terials to be transported to its plant from points outside the State of
Indiana. The respondent also causes large quantities of finished prod-
ucts, manufactured and processed at such plant, to be sold and trans-
ported to points outside the State of Indiana. For the 12-month
period ending December 31, 1944, approximately 45 percent of the
respondent's products were manufactured under contract with the
United States Government.
The Respondent admits, and we find, that it is engaged in com-
merce within the meaning of the Act.
IT. THE ORGANIZATION INVOLVED
International Molders and Foundry Workers Union of North
America, Local 316, affiliated with the American Federation of Labor,
is a labor organization admitting to membership employees of the
respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of events
The respondent employs more than 100 workers in its plant at
Michigan City and divides its factory operations into a number of
departments, such as screw machine, assembly, painting, welding,
polishing, and plating. In addition, prior to October 7, 1944, in a
small separate building connected with its main plant, the respondent
operated a foundry where it employed 6 full-time and 2 part-time
molders and their helpers. The foundry had been in operation for
more than 20 years.
Prior to October 4, 1944, so far as appears, the employees of the
respondent had evidenced no interest in self-organization for collec-
tive bargaining. On October 4, 1944, Lester Campbell, an organizer
for the Union, who had been advised by molders in Michigan City,
Indiana, that the respondent's foundry employees wished to organize,
THE HAYS CORPORATION 409
gave employees Orville Baker and Elmer Dean authorization cards
for this purpose. On the sane day, seven of the respondent's
foundry employees signed union cards, which Dean delivered to
Organizer Campbell on Thursday, October 5. Also, on October 5, the
employees started wearing union buttons prominently displayed on
their working clothes and, on the same day, the respondent learned of
their union activities.'
On Friday, October 6, Organizer Campbell telephoned Factory
Superintendent Otto Ziegler. Campbell stated that the respondent's
foundry workers had joined the Union and requested an appointment
to negotiate a collective bargaining agreement. Ziegler suggested
that Campbell telephone again on the following Tuesday, explaining
that "the week was almost up" and adding that "there was something
pending which might affect their meeting." 2
At the close of the work day on Saturday, October 7, without any
prior notice, Ziegler discharged all the foundry employees and ad-
vised them that the foundry operations had been permanently discon-
tinued.3 During the following week, the respondent disposed of
almost all its foundry equipment; it has not resumed its foundry
operations. The Union did not communicate with the respondent
after the shut-down.
B. The alleged discriminatory discharges and the refusal to bargain
Counsel for the Board asserts in effect that the respondent was
motivated by a desire to defeat the collective bargaining efforts of
its employees in closing the foundry and thus discriminated against
its employees in violation of Section 8 (3) and refused to bargain
within the meaning of Section 8 (5) of the Act.
Denying that it had such a desire, the respondent asserts that the
appearance of the Union among its employees almost simultaneously
with the respondent's decision to close the foundry was a coincidence
and that the union activity was not a factor in its decision. It asserts
that the respondent had operated the foundry for many years at a
' Employee Weaver testified that the foundry men wore the union buttons on Wednesday,
October 4 , but Dean testified that he obtained the buttons from the union organizer upon
delivery of the signed authorization cards on Thursday , October 5 , and that the buttons
were first worn on that clay . Howard Brockman , a pattern maker, testified that he told
Shop Foreman Alfred Werth about the union buttons as soon as he saw them on October
4 or 5 Phil Sprague, the respondent 's president , testified that there was talk of union
activities "a day or two " before October 7, 1944 We find that the union buttons were
first worn by the foundry employees on October 5, 1944 , and that the respondent learned
of their union activities on that day.
2 Ziegler testified that at about 5: 15 p in , on Thursday , October 5 , 1944 , he and Phil
Sprague , the respondent 's president , had decided to discontinue the foundry operations
3 The respondent discharged the six full -time foundry employees and Chas D Haack, a
part-tine molder Paul Centgrof, the other part-time foundry worker, who was also a drill
press operator in the respondent ' s factory , was not discharged and was still in the respond-
ent's employ at the time of the bearing
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
financial loss; that it continued to operate the foundry on an ineffi-
cient basis, notwithstanding such loss, for the sole reason that it
served as a convenience for the respondent's factory operations; and
that the decision to close the foundry at that particular time was
precipitated by three recent incidents which forcefully accentuated
the disadvantages of operating the foundry. The first incident oc-
curred on September 29, 1944, when President Sprague found the
foundry employees engaged in a dice game during working hours.
The second took place on October 4, 3 days before the shut-down,
when the oldest foundry employee, whom the respondent had planned
to retain as a 1-man foundry department at some indefinite future
time when its foundry requirements should be reduced, decided to
leave the respondent's employment. Finally, on October 5, 5 to 10
minutes before the 5 o'clock closing hour, Factory Superintendent
Ziegler found a group of factory employees ready to leave the plant,
misconduct which the respondent attributed to the example set by
the foundry employees in taking excessive liberties and thus neglect-
ing their work. As stated above, Ziegler testified that at about 5: 15
p. m., on the same day, he and Sprague decided to discontinue the
foundry operations permanently.
To support the contention that the respondent closed its foundry
to escape collective bargaining, in addition to the fact that the shut-
down coincided with the appearance of the Union in point of time,
counsel for the Board introduced testimony and documentary evi-
dence purporting to show the following: (1) that sometime in 1937
or 1938, Factory Superintendent Ziegler directed employee Weaver
not to give employment to union men in hiring new employees; (2)
that, during 1943, Ziegler said that he would close the plant rather
than deal with a labor organization; and (3) that on or about Oc-
tober 5, 1944, when Ziegler first learned of the Union's activities in
the foundry, he stated : "I'd be glad if the foundry did organize,
because then maybe we would get some work out of the men down
there. I don't care. If they'd increase the rate, then we'd have to
have production out of the foundry. The Union would have to see
to that. If the rate'll be too high, we'll just have to close the foundry
up.", Ziegler denied having made such statements, but the Trial Ex-
aminer in effect discredited his denials.
The Trial Examiner found that the reasons advanced by the re-
spondent did not motivate it in closing the foundry. Upon the basis
of the timeliness of the respondent's action, the absence of a plausible
explanation therefor, and the three statements of Ziegler referred
to above, the Trial Examiner concluded that the respondent closed
the foundry in order to escape collective bargaining with the Union.
We cannot agree.
THE HAYS CORPORATION 411
True, the sudden closing of the foundry, after many years' opera-
tion, immediately following a swift and successful organizational
campaign and a demand for collective bargaining, suggests a casual
relationship between such union activity and the closing of the
foundry. However, although the respondent's conduct is thus suspect
and, assuming, as the Trial Examiner found, that the respondent's
explanation of its conduct is unconvincing, the record does not con-
tain sufficient affirmative evidence to convince us that the respondent
was motivated by an illegal purpose in closing its foundry. As indi-
cated above, Zeigler's instruction not to hire union help was issued
at least 6 or 7 years prior to the closing of the foundry, a point in
time too remote to, give the incident probative value. Although
Dorothy Fischer, a former employee, testified that, during 1943, she
overheard Ziegler say to an unnamed person that he, Ziegler, would
close the plant rather than deal with a labor organization, Ziegler
denied that he ever made such a statement, a denial which the Trial
Examiner failed to note in his Intermediate Report.
The remaining portion of the record relied upon to support the
complaint consists of Ziegler's statement reflecting the respondent's
attitude toward the Union's efforts to organize the employees. We da
not regard this statement, set forth above, as anti-union in tenor. In
the first portion thereof, Ziegler welcomed the Union in the hope that
it would speed production in the plant. In the last portion of the
statement, while Ziegler stated that the Union might compel the re-
spondent to close the foundry, such discontinuance of operations was
expressly conditioned upon the assertion of unreasonably high wage
demands by the Union. In view of the fact that the Union had not
made known its demands to the respondent at the time of the shut-
down and the further fact that Ziegler in effect conditioned the pros-
pective shut-down upon the existence of an economic impasse, we are
of the opinion that Ziegler's statement does not show that the re-
spondent closed its foundry in order to escape collective bargaining
or that it had contemplated such action. Accordingly, we conclude
that the evidence does not sustain the allegations of the complaint
that the respondent violated Section 8 (3) or 8 (5) of the Act .4
In view of the absence of any other evidence and for the reasons
indicated above, the record likewise does not support the remaining
allegation of the complaint that the respondent urged, warned, and
threatened its employees against joining and assisting the Union in
violation of Section 8 (1) of the Act.
Accordingly, we shall dismiss the complaint in its entirety.
4 In view of our decision , we have no occasion to determine the appropriate unit, as such.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. The operations of the respondent, The Hays Corporation, Michi-
gan City, Indiana, herein involved, occur in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. International Molders and Foundry Workers Union of North
America, Local 316, affiliated with the American Federation of Labor,
is a labor organization 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 S (1), (3), and (5) of the Act, as alleged
in the complaint.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint issued herein against the re-
spondent, The Hays Corporation, Michigan City, Indiana, be, and it
hereby is, dismissed.