The Plastic Molding Co., Inc.

National Labor Relations Board - Board Decisions

Dec 27, 1954

110 N.L.R.B. 2137 (N.L.R.B. 1954)

THE PLASTIC MOLDING COMPANY, INC. 2137
ment and/or arrangement and by discriminatorily refusing to hire the four charging
parties
2. District No. 2, International Brotherhood of Boilermakers, Iron Ship Builders
and Helpers of America, AFL, has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6)
and (7) of the Act, by maintaining and performing an unlawful employment agree-
ment and/or arrangement and by causing The Babcock & Wilcox Company to dis-
criminatorily refuse employment to the four charging parties.
[Recommendations omitted from publication.]
THE PLASTIC MOLDING COMPANY , INC. and DISTRICT No. 9. INTERNA-
TIONAL ASSOCIATION OF MACHINISTS , AFL. Case No. 14-CiA-1130.
I eee nber 27 1 1954
Decision and Order
On May 24, 1954 , Trial Examiner Reeves R. Hilton issued his Inter-
mediate Report in the above-entitled proceeding , finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter , the Respondent filed
exceptions to the Intermediate Report. ' On October 19, 1954, Trial
Examiner George A. Downing issued a Supplemental Intermediate
Report, also attached hereto, containing additional commerce informa-
tion and ,findings of fact pertaining thereto.'
The Board has reviewed the rulings of the Trial Examiners made
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Reports , the Respondent 's exceptions , and the entire record
in the case , and hereby adopts the Trial Examiner 's findings,3 con-
clusions , and recommendations with the following modifications.
'The Respondent's request for oral aigiunent is hereby denied as the iecoid and the
exceptions, in oui opinion, adequately present the issues and the positions of the parties
2During 1953, the last yeai foi which complete sales figures ate available and which
we find to be a year iepresentative of the Respondent's business, the Respondent fui-
mshed mateuals and tools valued at $101,720 09 to enterprises each of which shipped out
of the State of Dlissouii goods valued at more than $50,000 Of the formei sum, $2,459 50
repiesented tooling and setup chaiges and $99,260 59 iepresented inateiials incorporated in
the products of its customeis and shipped outside the State We find that the Respondent
is engaged in commerce within the meaning of the Act, and that it will effectuate the
policies of the Act to assert jurisdiction Jonesboro Giate Drying Cooperative, 110
NLRB 481.
3 Ti ial Examiner Hilton found that the Respondent's general manager, McDorman,
unlawfully interrogated the discruninatee WS'ojohn by inquiring whether lie knew anything
about the Union, or whether lie knew of anyone who might have such knowledge He also
found that Leadnian Rienian's statement at an employee meeting that the Respondent did
not want the Union and would try to keep it out was coercive Although McDorman's
and Rieman's remarks, standing alone, might fall short of coercion, we agree with Timl
Exauuner Hilton that in the context of the Respondent's other unlawful actions found
herein these teniarks were coercive and constitute violations of Section 8 (a) (1) of the
Act. Cf Blue Flash Express, Ine, 109 NLRB 591
110 NLRB No. 262
2138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner indicated that there may be "some grounds
for believing Wojohn was discharged for minor inefficiencies." We
disagree. Assuming arguendo that the Respondent had justifiable
cause to discharge Wojolm for minor inefficiencies in his work per-
formance, it is apparent, and we find, that this was not the motivation
for the Respondent's action. The mere existence, nmoreover, of a
valid reason is no defense to a discharge which, as here, was motivated
by antiunion considerations.4
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, The Plastic
Molding Company, Inc., St. Louis, Missouri, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in District No. 9, International As-
sociation of Machinists, AFL, or in any other labor organization of
its employees, by discharging any of its employees or in any other
manner discriminating against them in regard to their hire or tenure
of employment or any terms or conditions of employment.
(b) Threatening its employees with reprisals because of their union
activities.
(c) Interrogating employees concerning their membership in, or
activities on behalf of, District No. 9, International Association of
Machinists, AFL, or any other labor organization, in a manner con-
stituting interference, restraint, or coercion in violation of Section 8
(a) (1).
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist District No. 9, International
Association of Machinists, AFL, or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from any
or all of such activities except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8 (a) (3) of
the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
IAngaoell Curtain Company, Inc v. N L R. B, 192 F. 2d 899, 902 (C. A 7) ; N. L. R. B.
v. Montgomery Ward & Co, 192 F 2d 160, 162-163 (C A. 8)
THE PLASTIC MOLDING COMPANY, INC. 2139
'(a) Offer to Edward Wojohn immediate and full reinstatement
to his former or a substantially equivalent position, without prejudice
to his seniority or other rights and privileges.
(b) Make whole Edward Wojohn in the manner set forth in the
section of the Intermediate Report entitled The Remedy" for any
loss of pay he may have suffered by reason of the Respondent's dis-
crimination against him.
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social-security pay-
ment records, timecards, personnel records and reports, and all other
records necessary to analyze the amount of back pay due and the
right of reinstatement under the terms of this Order.
(d) Post at its plant in St. Louis, Missouri, copies of the notice
attached hereto and marked "Appendix A." I Copies of said notice,
to be furnished by the Regional Director for the Fourteenth Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof and main-
tained by it for a period of sixty (60) consecutive days in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Fourteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, as amended, be, and it
hereby is, dismissed insofar as it alleges that the Respondent through
William G. Bachman engaged in any unlawful acts or conduct.
a In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Deciee of a United States Couit of Appeals, Lnforcing an Order."
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in District No. 9, Interna-
tional Association of Machinists, AFL, or in any other labor or-
ganization of our employees, by discharging any of our employees,
or in any other manner discriminating against them in regard to
their hire or tenure of employment or any term or condition of
employment.
2140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees with reprisals because of
their union activities.
WE WILL NOT interrogate employees concerning their member-
ship in, or activities on behalf of, District No. 9, International
Association of Machinists, AFL, or any other labor organiza-
tion, in a manner constituting interference, restraint, or coercion
in violation of Section 8 (a) (1).
WVE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form, join, or assist District No. 9, International Asso-
elation of Machinists, AFL, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, and to refrain
from any or all of such activities except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
WE WILL offer to Edward Wojohn immediate and full rein-
statement to his former or a substantially equivalent position
without prejudice to seniority or other rights and privileges pre-
viously enjoyed, and make him whole for any loss of pay suffered
as a result of the discrimination against him.
TITE PLASTIC MOLDING CODIPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
,and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
This proceeding , brought under Section 10 ( b) of the Labor Management Rela-
tions Act of 1947, 61 Stat 136 (herein called the Act) was heard in St. Louis,
Missouri, on March 1 and 2, 1954, pursuant to due notice to all parties . The com-
plaint, issued on January 29, 1954, by the General Counsel of the National Labor
Relations Board,' based on charges , duly filed and served, alleges that The Plastic
Molding Company , Inc.,2 herein called the Respondent or the Company , has engaged
in certain unfair labor practices proscribed by Section 8 (a) (1) and ( 3) of the Act.
The answer admits certain allegations of the complaint but denies the commission
of any unfair labor practices
All the parties were represented at the hearing and were afforded opportunity to
be heard, to examine and cross-examine witnesses , to introduce relevant evidence, to
The Geneial Counsel and the staff attorney appearing for hint at the hearing are ie-
feried to as the General Counsel, and the National Labor Relations Board as tine Board
S At the hearing the General Counsel, with the consent of counsel for the Respondent,
moved to amend his complaint to show the coirect coipoiate title of the Company The
motion was granted by the Trial Examiner
THE PLASTIC MOLDING COMPANY, INC. 2141
argue orally , and to file briefs . Thereafter the General Counsel and counsel for the
Respondent filed briefs which have been considered by the Trial Examiner.
Upon the entire record in the case and from his obseivation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
I THE RESPONDENT'S BUSINESS
The complaint alleges , and the answer admits , that the Respondent , a Missouri
corporation , maintains its office and plant at St. Louis , Missouri, where it is engaged
in the manufacture and sale of plastic dishware and other plastic products . During
1953 the Respondent sold and delivered products valued in excess of $100,000 to
business enterprises located in the State of Missouri which annually ship goods and
materials valued in excess of $25,000 to places outside the State. The answer con-
cedes and the Trial Examiner finds that the Respondent is engaged in commerce as.
defined in the Act.
11. THE LABOR ORGANIZATION INVOLVED
District No 9, International Association of Machinists , AFL, herein called the
Union , is a labor organization within the meaning of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement
In brief, the complaint alleges that about December 18, 1953, the Company dis-
charged Edward Wojohn because of his membership in, and activities on behalf of,
the Union and on and after about December 1 its officers , agents, and representa-
tives unlawfully interrogated the employees and uttered threats and warnings to
them designed to discourage membership or interest in the Union . The Company
asserts Wojohn was discharged for cause and denies it engaged in any conduct which
interfered with the rights guaranteed its employees.
At the time in question William N . Bachman , herein called Bachman, was, and
is, president and treasurer of the Company while Robert McDorman became general
manager of the plant about November 20, 1953, succeeding John Adkinson , Jr., who
died the preceding September The General Counsel contends that George Rieman
and Junior Buhler are supervisory employees while the Company contends the for-
mer is leadman in the production department and the latter leadman in the finishing
department . The General Counsel further contends that William G. Bachman, son
of Bachman , acted for and on behalf of the Company in addressing groups of em-
ployees and the Company asserted that young Bachman was neither an employee nor
representative of the Company on such occasions.3 Bachman stated the Company
had some 16 employees about the date of the hearing, and between May 1953 and
February 17, 1954, the highest number employed was approximately 35.
B. Organizational activities , acts of interference , restraint, and coercion
Wojohn was hired as cleanup man or porter by Rieman on June 27, 1953, and
was employed in this capacity until the date of his discharge. According to Rieman,
the Company used hydraulic -operated presses to close the plastic molds and it was
Wojohn's duty to clean the flash, or excess material, from the molds, to keep the
floor clean of oil, which normally overflowed from the machines, and generally to
clean up the plant and washrooms . Wojohn said he received orders from Rieman
and also from Buhler who not only instructed him in regard to cleaning duties but
in carrying materials to the second floor where the finishing department was located.
Wojohn testified that about 6 weeks before his discharge he asked Buhler if he
would like to have a union in the shop and he told him, no, that he had better drop
the subject or "Rieman will fire you ." Subsequently , about December 1, George
Thess , organizer for the Union , met Wojohn on his lunchhour and asked him if he
could "swing" the Union in the plant . Wojohn said he would talk to the employees,.
s The complaint alleged the acts were committed by "Williain Bachman " At the hear-
ing the Trial Examiner granted the motion of the Geneial Counsel to amend his complaint
by changing the name to William G. Bachman , with the understanding that the Company,
if taken by surpiise , could apply for additional time at the conclusion of the General
Counsel's case No such application was made by counsel for the Company
2142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so Thess gave him about 15 membership applications . Wojohn signed a card and
distributed a number of the same among the employees , some of whom signed up
and mailed the application to the Union.
Approximately 1 week before his discharge , Wojohn stated he and Buhler were
at Luther Kirby's mold when Buhler inquired how the Union was coming along.
Wojohn asked if he would like to have the Union in the plant and Buhler warned
him, "You better drop it, or you'll be fired " About the same date , Wojohn testified
McDorman met him in the washroom and asked if he knew anything of the Union
coming into the shop . When Wojohn said he knew nothing of it, McDorman in-
quired if there was anyone who might have such knowledge and, again , Wojohn
answered in the negative.
Kirby testified that sometime in December , he, Buhler , and Wojohn were talking
about the Union and Wolohn asked Buhler what he thought of having a union in
the plant. Buhler told him, "You just better forget the whole works before you
get fired."
Buhler denied generally that he had any conversations with Wojohn concerning
the Union . McDorman admitted he asked Wojohn if he had heard of the Union
coming into the plant and Wojohn told he had not heard of any such movement.
McDorman fixed the date of the conversation as sometime after Bachman had
received a letter or notice from the Regional Office of the Board in connection
with a representation petition which had been filed by the Union.
In this respect the General Counsel stated the petition was filed on December 4
(Case No. 14-RC-2462 ), that a representative of the Board contacted the Com-
pany about December 5, and that a notice of hearing was issued about December
11, scheduling the hearing for December 15. On December 18 the Company and
the Union executed an agreement for a consent election which was held on December
28 and resulted in a 10-to-10 tie vote. Buhler voted in the election but counsel
agree that this fact is not determinative of the question of whether or not he was
supervisory employee.
C. The employment status of Rieman and Buhler
McDorman testified that he was responsible for the complete operation of the
plant, including the performance of office details, and that Rieman and Buhler were
his leadmen . McDorman described Rieman's functions at the plant as "important"
in that it was his responsibility to see that the mold ran right, performed setup work,
made trial runs, and installed new equipment . Buhler spent about half his time in
the finishing department and the remainder in delivering parts and picking up
equipment . While Buhler himself inspected and packaged parts in the department,
he was "perfectly free" to assign work to other employees or call upon them to
assist him. He further stated that shortly after he was made general manager work
became slack , so he and Buhler "decided someone has to go," and they agreed that
Versa Mitchell and two other girls in the department should be laid off. Buhler
made the layoff. In regard to the issuance of work instructions McDorman stated,
"I give orders to them [Rieman and Buhler ] and they do the work to the best of
their knowledge . They can have other people help them in doing that work if they
want." Both Rieman and Buhler could go any place in the plant and select any
employee to perform a particular job, provided the employee was not "tied up" by
a previous order issued by McDorman . McDorman is the only salaried employee
at the plant while Rieman and Buhler receive 30 cents and 15 cents, respectively,
above the average hourly rate paid the employees.
Rieman called himself a maintenance man and it was his duty to set up molds,
keep them in order, and hook up any machinery that needs to be put in running
condition On at least one occasion in December , Rieman, according to Buhler,
substituted,for McDorman as plant manager.
Buhler was initially hired as a molder and later became leadman in the finishing
department and spends some of his time driving the truck . He works directly under
McDorman and assigns work to employees in his department , the number of which
has varied from 3 to 12 persons. He further stated it was part of his duties to talk
to the molders concerning bad work and to advise them how to correct the same.
Bachman asserted that McDorman hired and discharged employees but in the
interval between Adkinson 's death and his appointment , Rieman performed these
duties. Rieman would interview applicants and if he recommended acceptance to
Bachman, the individual was employed . In the case of discharge or layoff, Rieman
would report the action to Bachman and, if the reasons therefor were sufficient,
he would approve the same Bachman said he "spent some time" at the plant and
that he does "the dictating to McDorman and McDorman has a certain amount of
managing problems he can handle himself. That is as far as the management goes."
THE PLASTIC MOLDING COMPANY , INC. 2143
He admitted Buhler was , and is, leadman in the finishing department where the
products are given a final inspection and that Rieman, on instruction from Mc-
Dorman, is also responsible for quality and at times issues orders to the girls in
that department . Bachman could not estimate how much time McDorman or
Rieman spend in the finishing department.
Buhler said Bachman came to the plant only once a week and then stayed but a
few minutes.
Eugene Bozark was hired in August 1953 as a press operator by Rieman, who
instructed him in the operation of the machine . Bozark knew Buhler as foreman
of the finishing department and truckdriver , and that when he completed his work
it went to the finishing department . Buhler would inspect the same and, if neces-
sary, advise Bozark if his mold was running too heavy or too light. Buhler would
then adjust the weights of materials that went into the mold.
James Sanders and Kirby testified to the same effect in regard to inspection and
correction of their work by Buhler.
Mitchell was employed in June 1953 and worked in the finishing department in-
specting parts. Mitchell received her job assignments and instructions concern-
ing her work from Buhler. In the latter part of November Mitchell stated she and
2 other employees , Agnes Thomas and "Jean," were laid off by Buhler. About 3
weeks later Doyle Hayes , an employee of the Company , informed her that Rieman
wanted her to come back to work . Mitchell returned to her job and, as of the date
of hearing herein, said there were 4 employees in the finishing department.
Bert H. Scott , machine operator , stated Rieman granted his request for a week off
during the Christmas holidays.
D. The discharge of Wojohn
Wojohn testified that on the afternoon of December 18 Rieman discharged him
for failure to clean the molds.
Bozark stated that earlier the same afternoon Buhler came to his press and re-
marked, "Hey , boy, seen [sic ] what Shorty [ Wojohn ] got?" Bozark answered, yes,
and Buhler said, "Well , that 's what is going to happen to you fellows that are talking
to the union . He'll get his check tonight."
John H. Callow, press operator, stated that the same afternoon Rieman told him
Wojohn was talking too much, keeping the men from working, and that he intended
to fire him after Christmas.
John Adkinson , press operator, testified that during December, he could not fix
the date, he went to the office to get a pair of gloves and there he heard Rieman or
Buhler remark that Wojohn had been seen talking to a picket who was, and had been,
performing duty in front of a gasoline station adjoining the plant. Adkinson told
them he also had seen Wojohn talking to the picket. The record is clear that Adkin-
son and other employees likewise spoke to and talked to the picket or pickets.
Buhler stated that Rieman was "substituting" for McDorman on the occasion
when Adkinson reported he saw Wojohn talking to the picket.
Rieman remembered the time he, Buhler, and Adkinson were in the office but
he could not recall the conversation. While he could not fix the exact date he said
it may have been the same day that Wojohn was discharged.
Wojohn, on rebuttal , stated that on the morning of his discharge he was empty-
ing trash outside the plant and talked to the picket for a few minutes . While thus
engaged he observed Atkinson watching him from the plant door which was about
5 feet from where he and the picket were standing.
The Company 's Evidence
McDorman , from daily observation of Wojohn , stated that he failed to keep the
floor clean of oil which seeped from the presses , thereby creating a hazardous condi-
tion, and that he also neglected to clean the flash from the molds which , being in-
flammable, was dangerous from a safety standpoint. In addition , Wojohn would
not clean certain areas, others he would clean a little , and he neglected to empty
trash cans used in the washrooms . These conditions existed throughout the period
of Wojohn's employment and brought complaints from Rieman , Buhler, Adkinson,
several of the girls, and from the city fire marshal . At various times during this
period, McDorman told him the plant "looked like a pig pen" and to clean it up.
He also found it necessary to warn Wojohn concerning his neglect of duties about
every third day and he "told him to do something every day . Several times a day."
However, his work showed no improvement . McDorman considered it his duty to
see that the plant functioned properly, to supervise the employees in respect to safety
conditions and production , and to eliminate any "lagging" employees , otherwise it
2144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would reflect upon himself . Accordingly , between November and the third week in
December, McDorman discussed the situation with Bachman every third day. At
first he recommended that Wojohn be retained but between the second and third week
in December he came to the conclusion he could do nothing with Wojohn so he
recommended that he be discharged McDorman said he had no knowledge of
Wojohn's membership in or activities on behalf of the Union.
Rieman testified it was Wojohn's duty to clean out the entire plant every morn-
ing and to keep the machines clean. Wojohn, according to Rieman , only partially
performed these duties in that he would let dirt pile up and at times he would let
the machines set for 2 or 3 days when he should have cleaned them daily. Rieman
believed the operators asked Wojohn to clean up when they left but he did not al-
ways do it at that time . Rieman reported these conditions to management , includ-
ing Bachman and McDorman , on numerous occasions throughout the entire period
of Wojohn's employment and from his observation of Wojohn his work fell off
rather than improved. Wojohn was replaced by a new employee but he was laid
off, for the same reason , after 1 or 2 weeks. Rieman was unaware of any union
activities at the plant as of the date of Wojohn's discharge.
Adkinson stated that Wojohn cleaned up once a day and usually cleaned his ma-
chine during the luncheon period, at which time he usually put sawdust on the
floor. Several times Adkinson told Wojohn to clean around the presses and he
would do so very quickly , then leave for an hour or so . At times Wojohn would
leave his hoe and shovel in the aisle and on several occasions Adkinson asked him to
move them . Sometimes he complied with this request and sometimes he did not.
Adkinson told Wojohn of this dangerous condition and reported the matter to
McDorman . Adkinson admitted that Wojohn carried parts for him as well as other
employees , at times without even being asked to do so.
Marie Smith , press operator , said the flash was not swept up nor was the wet
sawdust scraped off the mold . Smith told Wojohn he was not cleaning properly and
at times asked him for excess sawdust Wojohn would bring the sawdust which they
both put on the floor but it was not enough to absorb all of the oil . Smith occa-
sionally visited the washroom and at times noticed the waste cans full of paper
towels. Smith told McDorman she did not think Wojohn's cleaning was "up to
standard."
Mitchell stated Wojohn would simply sweep around the boxes at the table where
she worked, so she or one of the girls would sweep the floor. She further stated that
while Wojohn cleaned up the washroom he did not mop the floor.
Helen Hartline , press operator, said sometimes Wojohn cleaned the machine well,
at other times not so well , and sometimes he failed to empty the oil bucket . She made
no complaints to McDorman concerning his work.
Brenda Brown , machine operator , said that most of the time Wojohn "didn 't half-
way" clean around her machine and that he failed to mop the floor of the washroom.
Eugene Holt, maintenance man, whose duties included changing molds , stated that
Wojohn was supposed to clean the molds before they were changed but he never did
so When he asked Wojohn to do this, he would halfway clean it off.
Each of the above witnesses testified that Wojohn never approached them concern-
ing the Union and they were unaware of any union activities on his part
Wojohn admitted that in October Rieman told him the molds were not being
properly cleaned and instructed him how to do the job. He stated that he thereafter
followed these instructions but received complaints from some of the operators
Wojohn denied that any of the girls complained to him about his work , and conceded
that Adkinson remarked he was leaving his equipment in the aisle . He further stated
that when the press operators pointed out there was oil on the floor he covered it with
sawdust , as he was supposed to do . Wojohn, testifying in rebuttal, denied that he
ever received instructions from McDorman
Bozark , Callow, Kirby , Scott , and Sanders testified they had an opportunity to
observe Wojohn's work and were satisfied with the manner in which he performed
his duties and made no complaints to management in this regard . Callow , Kirby, and
Sanders received union membership applications from Wojohn which they signed and
returned to the Union.
E. The meetings with the employees
Bozark testified that one morning "within the week before Christmas " the Com-
pany called a meeting of the employees on the first shift which was also attended
by McDorman , Rieman , Buhler , and William G Bachman. Rieman told the group
that they had gone along pretty good without a union and he thought they could
continue in that manner without organization . McDorman said as far as he knew the
employees "got along pretty good" and he believed the relationship would continue.
THE PLASTIC MOLDING COMPANY, INC. 2145,
McDorman pointed out that the men might receive a wage increase if the Union came
into the plant but Saturday work, at overtime rates , would be eliminated William
G. Bachman told the men his father had been "pretty easy " on them but he would
just take so much. He further declared that if the Union came in "there will be some-
body breathing down your neck and want to know why the machine ain't run faster
and hollering for more production " Smith stated they did not need a union and if
one came in it would result in strikes
Callow said the Company called a meeting of the second shift employees about
6:30 one, evening at the company office at which McDorman advised them "the elec-
tion will be held next Monday [ December 28], do as you like, but if the union gets
in things will change. We don't breath [ sic] down your necks . If the union gets in
things will be tough for you " Young Bachman told the employees they had 7 paid
holidays and the same conditions as existed at 2 other plants owned by his father, so,
"what more could you ask for." He also pointed out his father liked to do things
his own way and did not want someone telling him what to do.
Kirby was present at this meeting and testified substantially the same as Callow in
respect to the statements made by McDorman and young Bachman. Kirby fixed the
date of the meeting as sometime during the week of December 21, and added that
Rieman announced , "we don't want the union in here, we want to try to keep it out."
Sanders said the Company called a meeting of the third shift employees about 6:45
the morning of December 24, at the company office. Rieman told the group they all
knew the Union was trying to get in the plant, that they knew what they were getting
and what the Company could promise, and that no one was being pushed for produc-
tion . Rieman then asked McDorman if he had anything to say. McDorman wished
them a Merry Christmas and gave them their $5 bonus
Bachman stated that upon receiving notice of the representation petition, ap-
parently sometime between December 4 and 11 , he told McDorman they had a
limited time in which to talk to the employees and since he knew there were certain
restrictions - on statements that could be made to the employees , he gave McDorman
a memorandum outlining "things that he would be permitted to say " to the men and
cautioned McDorman not to deviate from these instructions The memorandum,
which Bachman obtained from the National Tool and Die Manufacturers Associa-
tion of Cleveland , Ohio, recites Section 8 ( c) of the Act and illustrates various quoted
statements on the part of management representatives which have been held to be
permissible or unlawful by the Board and the courts.
McDorman admitted he received the foregoing memorandum and instructions and
that about December 22 he called separate meetings at the plant for the 3 shifts.
McDorman and Rieman were present at all 3 meetings while William G Bachman,
who happened to be at the plant, attended the first 2 meetings.
At the first meeting McDorman informed the men he had heard a union was com-
ing in and as its representatives would probably talk to them , he was taking this.
opportunity to address them. McDorman 's remarks were "half read " and "half said"
to employees in which he pointed out that the Company was good to them and giving
them everything it could , that they would grow with the Company , and if they joined
the Union they would be required to pay dues . He then asked if anyone wished to
say anything . Young Bachman stated he observed the privileges afforded in his
father's plant , such as paid holidays and vacations Rieman announced agreement
with McDorman and young Bachman and added the men were treated "pretty nicely."
Smith said they were not skilled workers and there was no reason to change "our
policy. " McDorman said the meeting lasted about 30 minutes McDorman was re-
called as a witness and testified he read a portion of the above memorandum entitled,
"Illustration of Lawful Statements ," and confined his remarks to these particular illus-
trations such as, "working conditions are better than those in unionized shops," the
Company has "always treated you fair and square ," and that the men had the right
to decide whether they "want any part of the union "
McDorman made substantially the same remarks at the second meeting, except
that he told this group there were certain things he could and could not state to them.
While McDorman was present at the third meeting he did not address the em-
ployees on the above subjects.
Bachman testified his son was not an officer or employee of the Company and
had no authority whatever at the plant . At the time of the meetings young Bachman
was using a drawing board at the plant and had no authority to address the meetings.
Upon learning of his son 's participation in the meetings Bachman asked him what
he had said , but thereafter he did nothing insofar as the employees were concerned.
Rieman did not testify in regard to the meetings . Holt attended one of the
meetings but could not remember what was said by McDorman , Rieman, or young
Bachman
338207-55--N ul 110-136
2146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
It is undisputed , and the Trial Examiner finds, that about December 1 Wojohn
was requested by Thess to organize the plant and , after becoming a member himself,
solicited other employees to join the Union, which they did . Prior to becoming
an active proponent of the Union , Wojohn , in the early part of November , inquired
of Buhler if he would like to have a union at the plant and he not only replied in
the negative , but warned Wojohn he better drop the thought of organization or
Rieman would discharge him. Again , approximately 1 week before his discharge,
Wojohn repeated his inquiry to Buhler and once more he cautioned Wojohn to drop
the subject of unionization or he would be fired. Kirby was present during the
second conversation and fully corroborated Wojohn's testimony . Although Buhler,
while testifying for the General Counsel, denied generally that he had any talks
with Wojohn in regard to the Union or unions , he was not called as a witness by
the Company , consequently, the testimony of Wojohn on these specific conversations,
as substantiated by Kirby, stands undenied and unrefuted . The Trial Examiner,
therefore , accepts the testimony of Wojohn and Kirby and finds that Buhler threat-
ened and warned them in the manner above stated . As appears hereafter, the Trial
Examiner finds Buhler to be a supervisory employee.
Wojohn further testified that about 1 week prior to his discharge McDorman
inquired if he knew anything of the Union, or if there was anyone else who might
have knowledge of the movement. McDorman explained the Company had been
notified a representation petition had been filed and he merely asked Wojohn if he
had heard of the Union. The explanation strikes the Trial Examiner as weak for
McDorman already knew the Union was organizing the plant, hence it cannot be
said that he was simply seeking general information on that score . On the contrary,
the reasonable inference to be drawn from his inquiry is that he was attempting
to elicit the names of the employees active in unionization and the extent thereof.
For these reasons, as well as those stated below , the Trial Examiner finds that
McDorman was not a credible witness and , accordingly, rejects his version of the
conversations and accepts the testimony of Wojohn.
By reason of the threats and warnings issued by Buhler and the unlawful interroga-
tion by McDorman the Company thereby engaged in acts and conduct in violation
of Section 8 (a) (1) of the Act.
The management of the Company is directed by Bachman , who spends but little
time at the plant, through McDorman. In turn, McDorman as general manager
is not only responsible for production but also personally maintains timecards and
shipping records and prepares and types his correspondence . Admittedly , McDorman
issues orders to his leadmen, Rieman and Buhler, who are charged with the duty
of carrying out these orders to the best of their ability , and they have full authority
to assign work to any employee in the plant. The only limitation upon this authority
is they may not select an employee who is already "tied tip" by a previous order.
The evidence detailed above leaves no doubt that Rieman and Buhler exercise inde-
pendent judgment in the performance of their duties and responsibilities as well as
the selection of employees for a given task. Both Rieman and Buhler receive a
higher hourly rate than that paid the production employees . The evidence is clear
that there are no immediate supervisors between the leadmen and McDorman
It is equally clear that the principal contact between the general manager and the
production employees is through the leadmen . Thus, McDorman when asked how
often he went into the finishing department answered , "Oh, perhaps once a day,
twice a day ." These facts convince the Trial Examiner that Rieman and Buhler
"responsibly direct" the work of the employees in their respective departments and
are, therefore , supervisors as defined in Section 2 (11) of the Act. (Doak Aircraft
Co. Inc., 107 NLRB 924.) Further indicia of Buhler's supervisory status is the
fact that McDorman conferred with him regarding the layoff of three girls in his
department and as this action took place shortly after he became general manager,
when he was not too familiar with personnel , it is reasonable to infer that Buhler
recommended the employees for layoff, which recommendations were adopted by
McDorman and carried out by Buhler. (Bogalusa Motors Inc., et al., 107 NLRB
97, on the point of the employee status of Bertoniere.)
The next issue to be resolved is whether Wojohn was discharged by reason of his
union membership and activities or because he was an inefficient employee. Of
course, the General Counsel has the statutory burden of establishing the illegality
of his discharge by a fair preponderance of all the evidence.
It is abundantly clear, and the Trial Examiner finds, from the testimony of
Wojohn, Callow , Kirby, and Sanders that Wojohn was most prominent in promoting
the Union among the employees and that prior to the date of his discharge he had
THE PLASTIC MOLDING COMPANY , INC. 2147
been threatened and warned about his activities on two occasions by Buhler and
unlawfully interrogated concerning the Union by Rieman The Company , there-
fore, from the outset was fully cognizant of his union membership and organiza-
tional activities on its behalf.
On the morning of December 18, Wojohn testified that while emptying trash out-
side the plant he talked to the picket on the adjacent property and observed Adkinson
watching him from the plant door a short distance away. Adkinson admitted that
one morning in December he went to the office where he met Rieman and Buhler
who were discussing Wojohn and he volunteered the information that he had seen
Wojohn talking to the picket . Buhler conceded that Adkinson revealed this infor-
mation to them and that Rieman was "substituting " for McDorman at the time.
Rieman remembered the occasion , without recalling the conversation , and admitted
it may have been the same day Wojohn was discharged . On the basis of this evi-
dence the Trial Examiner finds that Adkinson reported the foregoing information
to Rieman and Buhler on December 18. On the same afternoon , Bozark related
that Buhler asked him if he was aware of "what Shorty got " and when he replied
in the affirmative , Buhler announced Wojohn was getting his check that evening
and warned the same action would be taken against other employees who might be
active in the Union . Callow testified concerning a conversation he had had with
Rieman on the same afternoon in which Rieman accused Wojohn of talking too much
and keeping the men from working and that he was discharging him after Christmas.
Neither Buhler nor Rieman testified as to these conversations so the Trial Examiner
accepts the undenied testimony of Bozark and Callow and finds Buhler and Rieman
made the above threats and predictions of Wojohn's discharge.
As already stated the Company contends it discharged Wojohn for neglect of
duties or inefficiency . In brief, McDorman testified that during the tenure of
Wojohn's employment under him , about 1 month , Wojohn was so neglectful of his
work that he created hazardous and dangerous conditions to the extent that various
employees , as well as the city fire marshal , brought complaints to him ; that the plant
looked like a "pig pen " and he had to order Wojohn to clean up on these occasions
and he also found it necessary to speak to Wojohn almost every day and to warn
him of his neglect of duties every third day. McDorman considered the matter so
serious he spoke to Bachman about Wojohn every third day . Despite the constant
talks , orders, and warnings , Wojohn showed no improvement , nevertheless he was
permitted to work until December 18. Rieman added that Wojohn only partially
performed his duties throughout the entire period of his employment, a term of
almost 6 months , and that he -reported his derelictions to management on numerous
occasions . He concluded by stating Wojohn's work fell off rather than improved.
Certainly , it would tax one's imagination to believe that any management official
would put up with such conduct on the part of any employee for so long a period
of time. The Trial Examiner , from the appearance , demeanor , and attitude of
McDorman and Rieman while on the witness stand , is firmly convinced that they were
neither weak nor indecisive individuals and would not have tolerated any such con-
duct on the part of Wojohn . It is also significant that although Rieman was acting
general manager from sometime in September to November he took no steps what-
ever to discharge Wojohn in spite of his assertion that Wojohn was an incompetent
worker throughout the entire term of his employment with the Company. From
listening to , and reading , the testimony of McDorman and Rieman, particularly
McDorman, one would be led to believe that Wojohn was the key man in the plant
organization and that the success or failure of the Company rested upon his shoul-
ders. In the opinion of the Trial Examiner McDorman and Rieman , with an assist
from Holt, were simply attempting to build up a case against Wojohn and that they
grossly exaggerated his work record . In sharp contrast to these distortions , Wojohn,
in a frank and forthright manner, admitted Rieman spoke to him in regard to im-
proving his work and while he did his best to carry out Rieman 's instructions, still
some of the employees registered complaints as to the manner in which he performed
his duties . Nor can it be said that other witnesses for the Company give support to
the sweeping accusations leveled against Wojohn. Adkinson gave a somewhat vague
version of his complaints against Wojohn which seem to boil down to an objection
to his occasionally leaving his equipment in the aisles . The gist of the testimony
related by the girls is that Wojohn "didn 't halfway" clean up and failed to mop the
floor of the washroom . On the other hand five witnesses for the General Counsel
testified Wojohn performed his duties in a satisfactory manner . The Trial Examiner
finds that some of the employees did complain about Wojohn 's work , but not to the
extent asserted by McDorman and Rieman and considering the nature of his duties
such complaints do not appear to be unusual or unexpected.
2148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is well settled that the Act does not touch the normal exercise of the right of
an employer to discharge his employees but is directed solely against "the abuse of
that right by interfering with the countervailing right of self -organization ." ( Phelps
Dodge Corp v N. L. R B., 313 U . S. 177, 187). Having found that the Com-
pany openly expressed its opposition to organization , the Trial Examiner further
finds that it discharged Wojohn as part of its plan to prevent unionization and seized
upon Wojohn's alleged inefficiency as a pretext to eliminate an active proponent of
the Union . Moreover , assuming there may be some grounds for believing Wojohn
was discharged for minor inefficiencies , still the result would be the same for the
mere existence of a "valid reason" is no defense to a discharge motivated by anti-
union considerations . (N. L. R. B . V. The Sandy Hill Iron d Brass Works , 165 F. 2d
660, 663 (C. A. 2), N. L R. B v. Minnesota Mining and Manufacturing Company,
179 F. 2d 323 , 326-327 ( C A 8); Angwell Curtain Company , Inc. v. N . L. R. B,
192 F. 2d 899 , 902 (C. A 7 ) and N L R. B. v. Montgomery Ward cG Co., 192 F. 2d
160, 162-163 (C. A. 2).)
The Trial Examiner finds that by discharging Wojohn, the Company thereby en-
gaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of
the Act.
The remaining issue to be determined is whether McDorman , Rieman , or William
G Bachman threatened or coerced the employees at the meetings held shortly
before Christmas
The evidence of the General Counsel is to the effect that at the meeting of the
employees on the first shift McDorman and Rieman spoke of the pleasant relation-
ship between management and the men and expressed the belief that the relationship
would continue . McDorman , according to Bozark , told the group they might re-
ceive an increase if the Union came into the plant, but that Saturday work, for
which the men received overtime , would be eliminated . William G. Bachman de-
clared his father had been easy on the employees but if the plant became organized
someone will be "breathing down your neck" calling for more production.
McDorman said he read portions of the memorandum given him by Bachman and
also told the employees how good the Company had been to them, that they would
grow with the Company , and if they joined the Union they would be required to
pay dues Young Bachman did not testify but McDorman said he spoke of the privi-
leges the workers received from his father such as paid holidays and vacations.
McDorman 's testimony concerning his participation at the meeting is unimpressive
and conflicting . At first he testified he read from the memorandum as well as ad-
dressed remarks to the group , while the second time he stated he confined his re-
marks to reading " illustrations of lawful statements " contained in the memorandum.
It seems unlikely that McDorman would restrict himself to reading unrelated examples
of permissible statements , which would be meaningless insofar as the men were con-
cerned , and especially when Bachman was anxious to have him talk to the employees
prior to the election . Having found McDorman to be an unreliable witness on
other important phases of the case , the Trial Examiner rejects his testimony bearing
on the meeting and finds that he made the remarks stated by Bozark . However, only
one statement can be found to be unlawful and unprotected , and that was McDor-
man's declaration , which he did not specifically deny, that if the plant became union-
ized Saturday work would be eliminated . Unquestionably , McDorman thereby ex-
pressed a clear threat of reprisal if the men persisted in their efforts to organize the
plant. The General Counsel contends that young Bachman's remarks were threaten-
ing and coercive . The only portion of Bachman 's statement which might be objec-
tionable is his prediction that if the Union came into the plant someone would be
"breathing down your neck" calling for more production While it is possible to
infer that Bachman was issuing a veiled warning to the employees that their jobs
would be more difficult under the Union , still, considering the context of his re-
marks, the Trial Examiner is of the opinion that his statements contain no threat of
reprisal or force or promise of benefit. Although his remarks may have been of the
borderline variety the Trial Examiner finds the evidence is insufficient to support a
finding that the Company thereby interfered with , restrained , or coerced the em-
ployees in the exercise of the rights guaranteed under the Act.
At the meeting of the second shift employees Callow testified McDorman told them,
"If the Union gets in things will be tough for you." Kirby substantiated the above
testimony and added that Rieman stated the Company did not want the Union and
would "try to keep it out ." McDorman said he made the same remarks at the first
and second meetings , so for the reasons stated above, his version of this meeting is
rejected and the testimony of Callow and Kirby is accepted . Rieman did not deny
Kirby's testimony . The foregoing statements by McDorman and Rieman were plainly
THE PLASTIC MOLDING COMPANY, INC. 2149
coercive and not protected by Section 8 (c); consequently the Company thereby en-
gaged in conduct in violation of Section 8 (a) (1) of the Act.
Callow and Kirby stated that young Bachman told the employees that they had
the same working conditions as existed at 2 other plants owned by his father, that
they had 7 paid holidays and "what more could you ask for." He also informed them
his father liked to do things his own way and did not want anyone telling him what
to do. The Trial Examiner entertains no doubt that young Bachman made these
statements but since they contain no threat of reprisal or force or promise of benefit
the Trial Examiner finds they fall within the protection of Section 8 (c) of the Act.
The General Counsel concedes, and the Trial Examiner agrees, that nothing of any
consequence, in the way of statements or remarks, took place at the meeting for the
third shift employees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth above, occurring in connection with the
operations of the Respondent have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take the fol-
lowing affirmative action designed to effectuate the policies of the Act- (1) Offer
to Edward Wojohn immediate and full reinstatement to his former or substantially
equivalent position,4 without prejudice to his seniority or other rights and privi-
leges; (2) make whole Edward Wojohn for any loss of pay he may have suffered by
reason of the Respondent's unlawful discharge, by payment to him of a sum of money
equal to the amount he would normally have earned as wages, from the date of dis-
charge to the date of the Respondent's offer of reinstatement, less his net earnings
during said period; 5 (3) upon request make available to the Board payroll and other
records to facilitate the checking of the amount of back pay due, which shall be com-
puted in accordance with the Board's customary formula; 6 and (4) that the Re-
spondent be ordered to cease and desist from in any manner interfering with, re-
straining, or coercing its employees in the exercise of the rights guaranteed by the
Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act.
2. The Union is a•labor organization as defined in Section 2 (5) of the Act
3. By discharging Edward Wojohn the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act
4. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondent has not engaged in any unlawful conduct by reason of any state-
ment or remarks by William G. Bachman, as alleged in the amended complaint.
[Recommendations omitted from publication.]
'The Chase National Bank bf the City of New Yo? k, San Juan, Puei to Rico, Branch,
65 NLRB 627
'Crossett Lumber Company, 8 NLRB 440. Republic Steel Cot potation v N L R B ,
311 U S 7
OF W Woolwoi th Company, 90 NLRB 289.
Supplemental Intermediate Report
On August 30, 1954, the Board issued its order in the above case reopening the
record and remanding this proceeding to the Regional Director for a supplemental
hearing before a Trial Examiner for the purpose of obtaining additional commerce
2150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
information. It was also ordered that the Trial Examiner prepare and serve upon
the parties a Supplemental Intermediate Report (unless waived by the parties) con-
taining findings of fact upon the evidence received pursuant to the provisions of
the order.
Pursuant to said order and to due designation by the Chief Trial Examiner, the
Trial Examiner held a hearing, after due notice to all parties, at St. Louis, Missouri,
on September 20, 27, and 28, 1954. All parties were represented by counsel or by
other representatives and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce relevant evidence relating to commerce,
to argue orally, and to file briefs and proposed findings.
The parties not having waived the filing of a supplemental report, the Trial Ex-
aminer, upon the entire record in the case and from his observation of the witnesses,
makes the following:
SUPPLEMENTAL FINDINGS OF FACT
The General Counsel offered evidence which related specifically to the nature
and volume of Respondent's business in 1952 and 1953 with four of its customers,
Century Electric Co., Emerson Electric Manufacturing Co., Cinch Manufacturing
Company, and Hellmich Manufacturing Co., to all of whom Respondent had fur-
nished goods and services in St. Louis.
Century's annual sales amount to approximately $25,000,000, of which 94.7
percent in 1952 and 94.6 percent in 1953 were made to points outside the State of
Missouri. It purchased from Respondent molding for governor parts which became
a part of electric motors and generators manufactured by Century. Its purchases
from Respondent in 1952 totaled $11,164.89, of which $621 covered tooling
charges; I and in 1953 its total purchases were $33,181.33, of which $2,408 covered
tooling charges.
Emerson purchased from Respondent molded parts which were used by it in the
manufacture of electric motors and generators. Its annual sales exceed $25,000,000,
of which 95 percent in 1952 and 94.3 percent in 1953 were made outside the State.
Emerson's purchases from Respondent in 1952 totaled $5,779.73, of which $958.50•
covered tooling charges, and its 1953 purchases totaled $1,031.23, of which approx-
imately 5 percent represented a setup charge (see footnote 1).
Cinch has a plant at St. Louis and others in Chicago, Illinois, and Shelbyville,
Indiana. It buys from Respondent molded parts, i. e., plugs or sockets for elec-
tronic use, all of which, after inspection and cleaning, it ships to its plants in
Chicago and Shelbyville, where the molded parts are assembled with metal parts
into completed units. In 1952 its purchases from Respondent totaled $83,653;
and in 1953, $51,815.
Hellmich manufactures at St. Louis plastic molded dinnerware . Its annual sales.
for 1952 (fiscal year ending February 28, 1953) exceeded $800,000, of which
approximately 95.1 percent was made outside the State. Its 1953 sales (fiscal
year ending February 28, 1954) exceeded $2,000,000, of which approximately
92.89 percent was made to extrastate points. Hellmich purchased from Respondent
molded plates, bowls, and platters, which were given certain finishing operations
by Hellmich before shipment. Its purchases from Respondent totaled $12,064.31
in 1952, and $18,885.89 in 1953 (calendar years). Hellmich commingled Respond-
ent's products with its own, drawing from a common pool in making its sales and
shipments.
Respondent's operations, as they directly affect commerce, are summarized in
the tabulation below, after an appropriate adjustment to eliminate the purely intra-
state portions of the above accounts:
Name of Customer 1952 1955
Century Electric Co----------------------------- $10, 573. 15 $31,389.54
Emerson Electric Mfg. Co----------------------- 5,490.74 972. 45,
Cinch Manufacturing Co------------------------ 83, 653.00 51, 815.001
Hellmich Manufacturing Co---------------------- 11,473. 16 17, 543. 10,
111, 190.05 101, 720. 09,
1 The tooling charges covered the production of tools or molds which were used by
Respondent to manufacture particular types of products for specific customers In the
Emerson account, infra, a somewhat similar "set-up" charge was made by Respondent
for adjusting or "setting-up" its own machines to run a certain type of product for
Emerson Thus the foregoing charges covered services which were obviously essential
to the production of goods which ultimately moved in commerce Cf Fair Labor Stand-
ards Act of 1938, 52 Stat 1060, as amended 63 Stat. 910, 29 U S C A. Sec 201, et seq.
MOTOR TRUCK ASSOCIATION OF SOUTHERN CALIFORNIA 2151
Evidence was also developed, over the General Counsel's objection, as to the
volume of Respondent's business for the first 8 months of 1954.2 Briefly stated, that
evidence showed that though Respondent's business has declined, it enjoys a reason-
able expectation of substantial future business. Thus, its sales through August
aggregated $54,553.493 including $14,133.96 for tooling charges), of which more
than $32,000 were of an interstate character, as follows:
Name of Customer Location Amount
Basler Electric Co ----------------------------_ ---.-__-- Highland, Ill---- ---------__ $863.46
Central Transformer Co. (Includes $6700 for tooling charges.) - Pine Bluff, Ark______________ 9,372.25
Ili-Lo Antenna Corporation. (Includes $1938 for tooling
charges.)
Chicago,Il]_________________ 4,421.24
Sangamo Electric Co------------------------------------------- Marion,Ill__________________ 2,161.82
Diamond Match Company ------------------------------------ Springfield, Mass ___-________ 1,601.36
Century Electric Co. (Includes $2754 for tooling charges.)-_--__ ------------------------------ 7,798.70
Emerson Electric Mfg. Co__________________________________-- 2,896.78
AellmichManufacturing Co_ _______________________ 1 3, 549 30
1 The last three amounts are subject to an appropriate adjustment to allow for the small percentage of
Intrastate sales made by these customers.
The evidence as to tooling charges is particularly significant in evaluating Respond-
ent's future prospects. Thus, for Central Transformer Company, a new customer,
Respondent has produced only $2,672 in goods, though Central has invested $6,700
in tooling. In the case of Hi-Lo Antenna Co., the tooling charges are almost three-
fourths as much as the sales price of the goods so far produced, and in Century
Electric Co. they are more than half as much. Furthermore, Respondent' s records
disclosed that tooling charges were made as late as July 29 and August 30. Though
Respondent has no contracts with, and no guarantees from, those customers, the
foregoing facts obviously show a strong probability that it will continue to receive
orders from them.4
2 The General Counsel contended that as the unfair labor practices had occurred in
1953, commerce information relating to Respondent's 1954 operations was irrelevant.
3 Respondent's ledger accounts, produced at the hearing, reflected a total of $51,004.19,
exclusive of the Hellmich account, which was not among those produced. Hellmich's
representative testified that 1954 purchases from Respondent amounted to $3,549.30.
4 The Trial Examiner's apparent comment to the contrary at Record p. 90, lines 11-12,
is hereby corrected by changing the word don't to the word would.
MOTOR TRUCK ASSOCIATION OF SOUTHERN CALIFORNIA AND J. A. CLARK
DRAYING COMPANY, LTD. and JAMES D. GUTHRIE
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, AFL, AND ITS AFFILIATED
LOCAL UNIONS Nos. 88, 224, 208, 692, 186, 381, 542, 467, 898, 578,
357, 396 AND 495 and JAMES D. GUTHRIE. Cases Nos. 21-CA-664
and 21-CB-229. December 27, 1954
Decision and Order
On August 18, 1954, Trial Examiner Howard Myers issued his In-
termediate Report in the above-entitled proceeding,' finding that the
'Except for the above-mentioned cases , as a settlement agreement was reached with
respect to all the other cases listed in the caption of the Trial Examiner' s Intermediate
Report, the latter are not before the Board for decision.
110 NLRB No. 263.