The Weber Dental Manufacturing Company

National Labor Relations Board - Board Decisions

Jan 27, 1939

10 N.L.R.B. 1439 (N.L.R.B. 1939)

In the Matter of THE WEBER DENTAL MANUFACTURING COMPANY and
THE UNITED ELECTRICAL AND RADIO WORKERS OF AMERICA
Case No. C-'71 /.-Decided January 27, 1939
Dental Equipment Mann facturing Industry-Interference, Restrainit, and
Coercion: speech to employees discounting need for union, warning of results
to be expected from strike, and expressing opposition to collective bargaining;
employee warned to drop union activity ; meeting with union committee avoided
by announcement of wage increase and conduct by company of ballot on hours-
Discrimination: discharges ; for union activity ; charge of, not sustained as to
one employee-Reinstatement Ordered-Back Pay: awarded; monies received
by employees for work performed upon Federal, State, county, municipal, or
other work-relief projects to be deducted and paid over to agency which sup-
plied funds for said projects.
Mr. Harry L. Lodislz and Mr. Peter Di Leone, for the Board.
Lynch, Day, Pontius d Lynch, by Cllr. H. C. Pontius and Mr. John
0. Ketterer, of Canton, Ohio, for the respondent.
Mr. Walter T. Nolte, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Electrical
and Radio Workers of America,' herein called the Union, the Na-
tional Labor Relations Board, herein called the Board, by the Re-
gional Director for the Eighth Region (Cleveland, Ohio), issued
its complaint dated November 13, 1937, against Weber Dental Man-
ufacturing Company, Canton, Ohio, herein called the respondent,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of Sec-
tion 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 notice of hearing were duly served upon the respond-
ent and upon the Union.
With respect to the unfair labor practices the complaint alleged
in substance that the respondent discharged William C. Moran, Carl
' Now known as United Electrical, Radio, and Machine Workers of America.
10 N. L. R. B., No. 130.
1439
1440 NATIONAL LABOR RELATIONS BOARD
Lahm, and Albert Plitt, employees at its plant, and refused to rein-
state them because of their membership in and activity on behalf of
the Union and that through its officers and agents it had interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed to them in the Act by threatening to close its
plant, by keeping under surveillance the activities and meetings of its
employees, and by other acts calculated to discourage their union
activity. On November 24, 1937, the respondent filed its answer to
,the complaint, denying the jurisdiction of the Board but admitting
that a large part of its sales were made in interstate commerce; deny-
ing all allegations with respect to the unfair labor practices; and
alleging affirmatively that Moran and Lahm were laid off for lack
of work which they had been employed to perform and that Plitt was
discharged because he had, on a previous occasion, deserted the re-
spondent "in time of need."
Pursuant to a telegraphic notice of postponement, a hearing was
held at Canton, Ohio, on December 13 and 14, 1937, before William
H. Griffin, the Trial Examiner duly designated by the Board. The
,Board and the respondent were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. At the close of the Board's case and
again at the close of the hearing the respondent moved to dismiss
the complaint on several grounds going to the Board's jurisdiction
and also on the grounds: (1) that the evidence failed to substantiate
the allegations of the complaint; (2) that the Union was not a labor
organization; (3) that the Union had no members in the plant at the
time of the discharges; and (4) that, in any event, the discharges
were made without knowledge on the part of the respondent of any
connection between the dischargees and the Union. The Trial Ex-
aminer denied the motion to dismiss in so far as it was based on
grounds of lack of jurisdiction and reserved ruling on the remainder
of the motion. In his Intermediate Report, the Trial Examiner
denied the motion on all remaining grounds. Except in so far as
these rulings are inconsistent with the findings of fact, conclusions
of law, and order which follow, they are hereby affirmed. Other rul-
ings were made by the Trial Examiner on motions and on objections
to the admission of evidence. The Board has reviewed such rulings
of the Trial Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
On June 17, 1938, the Trial Examiner filed his Intermediate
Report, finding that the respondent had engaged in and was engaging
in the unfair labor practices alleged in the complaint and recommend-
ing that the respondent cease and desist therefrom, that it reinstate
Moran, Lahm, and Plitt to their former positions with back pay less
DECISIONS AND ORDERS 1441'-
earnings and deductions for any lawful lay-offs to which they would
have been subject had their employment continued, and that it take,
certain other specified affirmative action to effectuate the policies of
the Act. The respondent was advised by the Trial Examiner that
it might, within 10 days of receipt of the Intermediate Report, file
its request for oral argument before the Board.
On June 27, 1938, the respondent filed exceptions to the record and
to the Intermediate Report, but made no request for oral argument.
The Board has considered the exceptions and in so far as they are
inconsistent with the findings of fact, conclusions of law, and order
set forth below finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Weber Dental Manufacturing Company is an Ohio corporation
maintaining its principal office and place of business at Canton, Ohio,
where it is engaged in the manufacture and sale of dental chair units,
X-ray equipment, and wooden instrument cabinets.
The principal raw materials used by the respondent in its manu-
facturing processes are iron, aluminum, glass, brass rods, and tubing.
Approximately 80 per cent of such raw materials are purchased
within the State of Ohio and the remainder are purchased outside the
State.
The respondent's sales are made to dental supply houses throughout
the United States and Canada. Approximately five-sixths of such
sales are made to customers outside the State of Ohio. The services
rendered by the respondent to or on behalf of its customers subse-
quent to the sale of equipment consist of the sale of replacement parts
to such customers and the repair of equipment shipped to the Canton
plant for such purpose.
II. THE UNION
United Electrical, Radio, and Machine Workers'of America, affili-'
ated with the Committee for Industrial Organization, is a labor
organization admitting to its membership employees of the respond-
ent. The precise limits of its jurisdiction are not defined in the
record.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
Prior to March of 1937, some negotiations with the respondent had'
been conducted from time to time by a shop committee representing
the respondent 's employees . MacDonald , the respondent 's vice presi-
1442 NATIONAL LABOR RELATIONS BOARD
dent and general manager, had met with this committee several times
during 1936. The last of such meetings took place in November of
that year when the committee attempted without success to persuade
MacDonald to reinstate a bonus system in the plant.
Against a background of such casual negotiations came a meeting
of the employees on the night of March 17, 1937, at which wage de-
mands and the method of their enforcement were discussed. Moran,
an employee of the grinding department, recommended affiliation
with- either the American Federation of Labor or the Committee for
Industrial Organization. According to Moran, a vote was taken
and of 67 employees of the respondent who were present 63 voted
in favor of affiliation with the Committee for Industrial Organiza-
tion. However, since no union application cards were available,
nothing further was done at the time with respect to organization.
Within the next 2 months application cards were obtained from the
United Automobile Workers of America and signed by a number
of the employees. Application for a local charter was then made.
Subsequently it was learned that jurisdiction over the employees was
vested in the United Electrical, Radio and Machine Workers of
America and in September 1937 the applicants transferred to th•it
organization, signed its application blanks, and obtained a local
charter.
The March 17 meeting was known to Davis, the plant superin-
tendent, who told MacDonald about it on the morning of March 18.
According to Davis, both he and MacDonald were aware at the time
that it was a union meeting. MacDonald testified that he was told.
by Davis that :
there was a meeting of some sort held last night-a union meet-
ing-and it looks as though we are going to have a sit-down
strike here. I said, "When was that meeting held?" They said,
"Last night," so I became very much alarmed over the situation
because of the condition of the company.
During the afternoon of March 18 MacDonald called the employees
together so that he might sound certain warnings deemed necessary
at that time. Moran's account of the meeting of March 18 reveals
that employees were instructed not to punch out on their time cards
until the meeting had closed. According to Moran, MacDonald told
them that the purpose of the meeting was to inform the employees
of the status of the company. He reported MacDonald as saying
that the company had lost $42,000 in the past 3 years and was in
.no position to pay out more in wages than the current rate. Moran
quoted MacDonald as follows :
You can join any union you please, but I will not give you one
damn cent more; neither will I receive any of their committee
DECISIONS AND ORDERS 1443
men. I am not having any of those outside unions come in here
and tell me-with their law-breaking sit-down strikes, keeping
people away from work when they want to work-telling me
what to do or how to run this shop. If you want to come to
me as individuals, you can come to me, but I will not receive
no committee.
MacDonald then added that anyone who was dissatisfied with con-
di6ons should get out.
MacDonald's own account of the speech emphasized' his remarks
upon the financial condition of the company and his desire to impress
upon the employees the probable disastrous effect of a strike. He
quoted himself as saying, "I told them that we were in such a
delicate position that any serious labor disturbance could close the
door and lock us out." MacDonald frankly admitted that he had
said to the employees that it was not necessary "to belong to any
union in order to get a square deal from the Weber Company, or
from nee." His testimony varies from Moran's chiefly in that he
denied emphatically having stated a resolve not to meet committees.
On March 24 Henry, foreman of the grinding department, called
Moran aside and said to him :
Moran, I want to give you a little advice. You know when
you are well off. You lay off of this union stuff from now on. I
have been talking to Mr. Davis out in the office and he asked me
what you are ; whether you are a radical or what you are, and
I told him that you had never been talking about unions in here,
but I did hear you talk about politics. One thing I want to tell
you, don't you mention my name to anybody that I told you this,
because I will get hell out in the office.
Another meeting of the employees was held on the night of March
24. At this meeting the employees decided to utilize the shop com-
mittee to convey their wage demands to the respondent. Close, chair-
man of the shop committee at the time, was instructed to approach
MacDonald and arrange for a meeting between the management and
the committee. On March 26 Close went in to see MacDonald.
Moran, as one of the members of the shop committee, expected that
a meeting would be held without delay and that lie would be called
to MacDonald's office. The call did not materialize, however, and
Henry soon told Moran that he would not need to go out to the
office. He added, "They don't want you out there. MacDonald is
picking his own committee." MacDonald subsequently stated to the
employees that the remainder of the committee were not called be-
cause they lacked mature minds.
At noon the same day a blanket increase in wage rates was an-
nounced by the management and another to be put into effect 6
1444 NATIONAL LABOR RELATIONS BOARD
months later was'promised . Later in the day ballots were passed
out and collected by the foremen on which the employees were given,
the opportunity of choosing between a 40 and a 44 -hour week. The
ballots were counted by several supervisory employees chosen by the
management and a two-thirds majority in favor of the longer work-
week was announced by MacDonald . MacDonald did not deny that
he had talked with Close in the morning prior to announcing the
wage increase and the balloting on hours.
MacDonald ' s speech to the employees on March 18 admittedly con-
tained statements calculated to influence them against the need for
joining a union. Furthermore , it included ominous warnings con-
cerning the probable effects of a strike upon employment in the plant
and contained assurances that the best possible conditions were attain-
able without collective action. MacDonald denies that he made any
statement of policy against receiving union committees or indicating
that he would meet employees only individually . His subsequent
action in avoiding a meeting with the shop committee followed imme-
diately by the announcement of a wage increase and a company-
fostered ballot, however , controverts such denial . We therefore
accept Moran's account of the March 18 meeting . Henry's warning
to Moran to forsake the Union is clear, unmistakable , and not denied.
We conclude , therefore, on the basis of the above facts and of the
entire record , that the respondent , through its officers and agents,
influenced its employees against and interfered with their participa-
tion in any outside union.
We find that the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
B. The discharges
William Moran and Carl Lahm were employed by the respondent
in its grinding department from March and June 1936, respectively,
to November 1936 and again from approximately February 1, 1937,
to June 12, 1937. On the latter date both were handed their wages
by Karrer, assistant plant superintendent, and told they would not
be needed for the next 2 weeks. Lahm inquired about the reason for
the lay-off and was told by Karrer that "It is on account of moving.'
As soon as we get moved, we might call you back again." Henry,
however, told Moran that the lay-off was forced by slack work.
Moran thereupon asked why the "Greek" who had been there only 2
or 3 weeks was retained in preference to two senior workers, to which
Henry replied, "I have nothing whatever to do with this. These
orders comes from out in the office." Moran and Lahm returned on
July 12 and thereafter to ask for reemployment, but without success.
DECISIONS AND ORDERS 1445
At the time of their discharge Moran and Lahm were the only
union men in the grinding department. Moran was initially a vice
president and later president of the organization which had its origin
in the meetings of March 1937 . One employee of the polishing and
buffing department , a man named Banciu, hired April 19, 1937, was
junior in point of service to both Moran and Lahm at the time of
their discharges . This man is the one referred to by Moran as the
"Greek", when he inquired of Henry concerning the retention of a
junior employee.
The respondent contends that it had no knowledge of the union
membership or activities of the two men and that the discharges
were solely the result of lack of work of the kind which the two were
able to perform . MacDonald disclaimed any knowledge of the union
affiliations or activities of employees generally. Karrer testified that
he alone had been responsible for both discharges and that he had no
information concerning the union affiliation of either man. Davis and
Henry both supported Karrer in this statement . Neither Henry nor
Davis, however , denied Henry's warning to Moran in which he cited
Davis' inquiries about Moran's activities and point of view with
respect to labor organizations. Furthermore, MacDonald's profes-
sion of complete ignorance of the union activities of any employee
appears to be disingenuous when considered in the light of the entire
record. In spite of the denials , we are convinced that the union
activities of the two men were known generally among the respond-
ent's supervisory employees.
The respondent made no claim of a general shortage of work in
the department in which Moran and Lahm were employed but sought
to show that the work on hand required skilled workmen capable of
doing the more difficult finished grinding as well as rough grinding.
The chief source of rough grinding work is to be found in the dental-
chair cases, a type of work which, according to all the respondent's
supervisory employees , continued through November 1936 but ran out
in June 1937. According to Karrer and Henry, Moran was tried out
on finished grinding just before he was laid off in November 1936,
but his work proved unsatisfactory . Henry and the respondent's
other supervisory employees were unanimous in their testimony that
Moran and Lahm were incapable of doing satisfactory finished grind-
ing, although there was no complaint as to their rough work. Karrer
testified that Moran and Lahm spent almost all of their time on
rough grinding and invariably performed no finished work.
Karrer and Henry were agreed that Banciu and also J. Bozric and
Matetic, hired in July and August 1937, respectively , were superior
workmen to either Moran or Lahm in that they were all capable of
performing satisfactory finished work.
147841-39-vol. 10-92
1446 NATIONAL LABOR RELATIONS BOARD
If, however , the respondent 's supervisors were of the clear opinion
that Moran and Lahm were less capable than other employees in
their department, that opinion is not reflected in the respondent's
pay-roll records which, by admission of Davis, evidence the respond-
ent's policy of determining wages strictly in accordance with ability.
When reemployed on February 1, 1937, Moran and Lahm were both
paid 40 cents an hour. At the time of their discharges Moran was
receiving 50 cents an hour and Lahm 45 cents an hour. At the same
time Banciu was receiving 40 cents an hour. Subsequently J. Bozric
and Matetic were added to the pay roll at 45 cents an hour. J. Bozric
left on August 31. Banciu and Matetic were, however, still working
in November 1937 at 50 and 45 cents an hour, respectively.
The respondent's claim that Moran and Lahni were less capable
than the other employees is also controverted by Moran's testimony.
He testified that Banciu was performing rough grinding at the time
of the discharges upon a type of casting with which he (Moran) had
previously worked at different times. He also stated that each em-
ployee did both the rough and finished grinding on castings assigned
to him and that he had worked on all types of castings except some
customarily done by Henry and a senior employee named Bozric.
Although the employment situations of Moran and Lahm differ
to some extent, it is not necessary to consider such variances since
the respondent makes no distinction in its explanation of the two
discharges. We cannot accept the respondent's evidence tending to
show Moran's and Lahm's inferiority to Banciu , J. Bozric, and
Matetic. The discharges of and refusals to rehire Moran and Lahm,
when Banciu was retained and, J. Bozric and Matetic were subse-
quecitly employed, are therefore unexplained on lawful grounds.
When consideration is given to the relative ability of the men as
revealed by the pay-roll records, added significance attaches to the
variant and evasive explanations offered by supervisors at the time
of the discharges and to the fact that Moran and Lahm were the
only union employees in the department . We conclude , therefore,
that Moran and Lahm were discharged and refused reinstatement
because of their union activity.
We find that the respondent has discriminated in regard to the
hire and tenure of employment of William Moran and Carl Lahm,
thereby discouraging membership in the Union ; that by said acts
the respondent has interfered with , restrained , and coerced its em-
ployees in the exercise of the rights guaranteed them by Section 7
of the-Act.
Albert F. Plitt worked for the respondent as a tool maker for
approximately 3 years prior to February 12, 1937, at which time he
left the respondent 's employ for another position at a higher wage.
DECISIONS AND ORDERS 1447
On' August 8, 1937, he was rehired by the respondent only to be
discharged after working 1 day.
Plitt was a member of the shop committee in 1936 and was one of
those who met with MacDonald in November of that year to request
the restoration of the bonus system in the plant. According to Plitt,
he was the only member of the committee who voiced a protest
when the request was denied. After this November 1936 conference,
Plitt continued in the respondent 's employ without interruption until
he left voluntarily in February 1937. Plitt's version of his dismissal
in August at the close of his first day's work is that Davis came to
him at 4 o'clock with the statement that MacDonald would not have
him around because of their conversation the previous fall.
MacDonald and Davis both deny that the reason assigned by Plitt
for his discharge is the correct one. MacDonald testified that he had
told Davis after Plitt's departure in February never to take him
back because he had left when the respondent needed him and when
tool makers were unavailable . Upon discovering Plitt in the plant
in August , MacDonald called upon Davis to explain Plitt's presence
and, after being told that Plitt was rehired because of difficulty in
finding tool makers, he told Davis, "We don 't need help that bad after
he has left us two or three times , so let him go tonight when he is
through." Davis' account of the actual discharge is as follows : "I
told him that Mr. MacDonald ( was) very much displeased with me
because I reinstated him after his having left us on several previous
occasions ." MacDonald testified that he was not unfriendly to Plitt
as a result of the November 1936 conference and that, if there had
been a grudge , he would not have permitted Plitt to work until
February 1937 but would have discharged him at once.
Viewed in the light of the surrounding circumstances the respond-
ent's version of the discharge is more credible than Plitt's. It is in-
conceivable that an incident which failed to arouse MacDonald at the
time of its occurrence should, in the absence of further provocation,
be the cause of a discharge at a considerably later date . We find,
therefore , that the respondent has not discriminated in regard to the
hire and tenure of employment of Albert F. Plitt. The allegations
of the complaint in so far as they relate to Albert F. Plitt will be
dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
. We find that the activities of the respondent set forth in Section
III above , occurring in connection with the operations of the re-
spondent described in Section I above, have a close , intimate, and
substantial relation to trade, traffic, and commerce among the several
1448 NATIONAL LABOR RELATIONS BOARD
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
THL REMEDY
We have found that the respondent has interfered with, restrained,.
and coerced its employees in the exercise of the rights guaranteed
them in Section 7 of the Act. We will order the respondent to
cease and desist from such interference, restraint, and coercion.
We have also found that the respondent has discriminated in
regard to the hire and tenure of employment of William Moran and
Carl Lahm, by discharging the two men on June 12, 1937, and by
refusing them reinstatement thereafter. We will therefore order
the respondent to offer each of said persons full reinstatement to his
former position and to make each whole for any loss in pay he may
have suffered by reason of his discharge by payment of a sum equal
to the amount which he normally would have earned as wages from
the date of his discharge to the date of the offer of reinstatement, less
his net earnings 2 during said period.
Upon the foregoing findings of fact and upon the entire record in
the case, the Board makes the following:
CONCLUSIONS OF LAW
1. United Electrical, Radio, and Machine Workers of America is a
labor organization, within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of William Moran and Carl Lahm because of their union activ-
ity, thereby discouraging membership in the Union, the respondent
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
3. 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 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
2 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but tor his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpcnters and Joiners of
America Lumber and Sawmill Workers Union, Local 2590, 8 N L R B 440. Monies
received for work performed upon Federal, State, county, municipal, or other work-relief
projects are not considered as earnings, but, as provided below in the Order, shall be
deducted from the sum due the employee, and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal, State, county, municipal or other government
or governments which supplied the funds for said work-relief projects.
DECISIONS AND ORDERS 1449
5. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (1) and (3) of the Act, in respect to Albert.
F. Plitt.
ORDER
Upon the basis of the above findings of fact and conclusions of law
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, The Weber Dental Manufacturing Company, Canton, Ohio, and
its officers, agents, successors and assigns shall :
1. Cease and desist from :
(a) In any manner discouraging membership in United Electrical,
Radio, and Machine Workers of America or any other labor organi-
zation of its employees, by discharging or refusing to reinstate any
of its employees or in any other manner discriminating in regard to
their hire or tenure of employment or any term or condition of
employment because of their union membership or activity;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, 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, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to William Moran and Carl Lahm immediate and full
reinstatement to their former positions, without prejudice to their
seniority and other rights and privileges;
(b) Make whole said William Moran and Carl Lahm for any
loss of pay they have suffered since June 12, 1937, by reason of the
respondent's discrimination in regard to their hire and tenure of
employment by payment to each of them of a sum of money equal
to that which he would normally have earned as wages from the date
of his discharge to the date of offer of reinstatement, less his net earn-
ings during said period; deducting, however, from the amount other-
wise due to each of the said employees, monies received by said em-
ployee during said period for work performed upon Federal, State,
county, municipal, or other work-relief projects, and pay over the
amount, so deducted, to the appropriate fiscal agency of the Federal,
State, county, municipal, or other goaernment or governments which
supplied the funds for said work-relief projects;
(c) Post iirunediately, and keep posted for a period of at least
sixty (60) consecutive days from the date of posting, notices to its
employees in conspicuous places in its plant, stating that the respond-
1450 NATIONAL LABOR RELATIONS BOARD
ent will cease and desist in the manner set forth in paragraph 1 of this
Order;
(d) Notify the Regional Director for the Eighth Region (Cleve-
land, Ohio) in writing within ten (10) days from the date of this
Order what steps the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the allegations of the complaint
with respect to Albert F. Plitt be, and the same hereby are, dismissed.