United Aircraft Corp.

National Labor Relations Board - Board Decisions

Sep 15, 1961

133 N.L.R.B. 158 (N.L.R.B. 1961)

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dairy, textile, and factory office-are paid on a biweekly basis. The
office clericals, and two of the six plant clericals, who are excluded,
are also paid on a biweekly basis. Petitioner does not object to the
inclusion of the classifications of material handlers or chemical op-
erators in general, but only to inclusion of the employees in these
classifications who are biweekly paid. The biweekly paid employees
receive 2 weeks vacation during the first 5 years, as opposed to 1 week
for production and maintenance employees; they have more sick leave
benefits, and some are paid slightly higher wages. We find that their
interests and duties are the same as those of the production and main-
tenance employees, and we shall therefore include them in the unit.
The alleged supervisors: The Petitioner alleges that Edmond Tut-
tle, Robert Strubeck, Elsa Lehman, and Louis DeFiore, should be
excluded as supervisors. The Employer contends they are merely
leadmen and should be included. The Employer's testimony, which
is unrebutted, indicates that they do not have the power to hire, fire,
transfer, discipline, reward or promote, or to effectively recommend
any such action. As it does not appear that these individuals possess
any of the indicia of supervisory authority, we shall include them in
the unit.
Accordingly, we find that.the following employees at the Employer's
Boonton, New Jersey, operation, constitute a unit appropriate for
the purpose of collective bargaining within the meaning of Section
9(b) of the Act:.
All production and maintenance employees, including pilot plant
operating employees, margarine property testers, fatty acid chloride
operating employees, and employees in these classifications who are
biweekly paid, but excluding plant clerical employees, temporary em-
ployees, office clerical employees, laboratory employees,6 salesmen,
guards, watchmen, professional employees, and supervisors as defined
in the Act.
[Text of Direction of Election omitted from publication.]
G The classification "laboratory employees," whom the parties agreed to exclude, does
not encompass the employees in the New Jersey laboratory division.
Pratt & Whitney Aircraft Division of United Aircraft Corpora-
tion, Florida Research and Development Center and Raymond
S. Schutta . Case No. 12-CA-1420. September 15, 1961
DECISION AND ORDER
On December 15, 1960, Trial Examiner John C. Fischer issued his
Intermediate Report, finding that the Respondent had not violated
Section 8(a) (4) and (1) of the Act as alleged in the complaint and
133 NLRB No. 10.
PRATT & WHITNEY AIRCRAFT DIVISION, ETC. 159
recommending that the complaint be dismissed in its entirety, as set
forth in the Intermediate Report attached hereto. Thereafter, the
General Counsel filed exceptions and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the
case, and finds merit in the General Counsel's exceptions. Accord-
ingly, the Board adopts the findings of the Trial Examiner only to
the extent they are consistent with this Decision and Order.
The complaint alleges that the Respondent violated Section 8 (a) (4)
and (1) of the-Act by refusing to employ or reemploy the Charging
Party, Raymond S. Schutta, because he gave testimony in a Board
proceeding. The Trial Examiner concluded that the General Counsel
had not sustained the allegations of the complaint by a preponder-
ance of the evidence. Because of our disagreement with the Trial
Examiner's reasoning, conclusions, and recommendations, and be-
cause of his failure to make certain relevant factual findings, we
briefly summarize the facts of the case.'
Schutta had extensive experience both as a water treatment opera-
tor and as a plater. He was offered a choice of either position when
he was hired by the Respondent in August 1958, but elected to work
,as a 'water ,'freatment operator. About a month after commencing
work, he was called in by Respondent's security officer to explain dis-
crepancies in employment application. Schutta admitted having
made certain misrepresentations, and signed a statement to that effect z
He heard no more of this matter for the remainder of his tenure.
A year later, in September 1959, he testified on behalf of the General
Counsel in another case involving allegations of unfair labor prac-
tices against Respondent by the International Association of Machin-
ists, AFL-CIO. His testimony in that case had a direct and probative
bearing in support of the allegations of that complaint, particularly in
respect to threats of reprisal for union activities made by one of
Respondent's supervisors and in respect to other statements by this
supervisor bearing on discriminatory motivation for the discharge of
1 Our findings are made on the basis of an examination of the entire record in the light
of the Trial Examiner 's credibility findings. The Trial Examiner did not discredit any
witness. The General Counsel, who filed the only exceptions , has excepted to the Trial
Examiner's failure to discredit Schirm, the Respondent ' s personnel manager. However,
inasmuch as a clear preponderance of all the relevant evidence does not convince us that
the Trial Examiner's credibility finding respecting Schirin was incorrect, we find no merit
in this exception . Standard Dry Wall Product8 , Inc., 91 NLRB 544, 545 , enfd. 188 F 2d
362 (C.A. 3).
2 In the statement he admitted that, despite representations in his employment applica-
tion to the contrary , he was not a high school graduate and he had been arrested (he was
convicted of larceny in 1940 , placed on a 1-year probation, and released therefrom after
3 months ). He explained to the security officer that he had almost enough credits for a
high school diploma, and that he had forgotten the arrest . The security officer accepted
the explanation , and Schutta 's employment was not affected.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the alleged discriminatees in that case.3 After Schutta's testimony
Respondent entered into a settlement agreement providing for rein-
statement of all of the alleged discriminatees therein and reimburse-
ment to them in the total amount of $6,200. On or about October 19,
1959, Schutta was laid off for lack of seniority in order to make room
for the reinstatement of one of these discriminatees. This layoff is not
alleged as an unfair labor practice.
On the day of his layoff Schutta attempted unsuccessfully to trans-
fer to a plater's position. He was informed by Respondent' s personnel
officer that he would be considered for a plater's job without having
to fill out a new application. On or about October 21, 1959, an in-
formal grievance meeting was held at which Respondent's personnel
manager , Schirm, was reminded by union representatives that Schutta
had about 12 years experience as a plater and was asked that Schutta
be given an opportunity in the plating department. Schirm advised
that if there were an opening in the plating department or anywhere
else in the plant Schutta would be given an opportunity to obtain such
a position. On the following day Solomonson, Respondent's plating
supervisor, told Ramsey, the chairman of the grievance committee of
the IAM, that he, Solomonson, desired to hire experienced platers.
However, Schutta was not recalled. At the hearing Respondent's
counsel offered to stipulate that since Schutta's layoff Respondent had
hired platers and employees in its water treatment department, but
no dates were specified. Between October and December, at three
more informal grievance meetings, the union representatives present
made an effort to persuade Respondent to rehire Schutta as a plater
or in any other position. At each meeting Schirm stated he would
be glad to give Schutta a job as a plater or any other job for which
he was qualified, if an opening occurred. On February' 17, 1960,
Schutta filed a new application seeking a position as either- a plater
or a water treatment operator. He was again told that there were
no openings. However, in March 1960 the Respondent ran local news-
paper advertisements for platers. Schutta thereafter contacted Re-
spondent several times, finally writing Respondent a letter on March
13. On March 15, Respondent by letter advised Schutta that it,.had
no position for a person of his experience and qualifications, but if
an appropriate opening occurred in the future it would give him fur-
ther consideration. Respondent did in fact hire a plater on March
29, who had applied in answer to a newspaper advertisement .4
3 The evidence in that case also shows that on September 10, 1959, immediately before
Schutta took the witness stand, he was threatened by his supervisor that if he remained
at the hearing he would be "put on the report as being absent without leave "
4 The General Counsel produced one witness , La Buff, who was hired as a plater on
March 29, 1960 La Buff was a college graduate with extensive credits in chemistry.
However , he had only 2 years' prior experience as a plater and his duties with Respondent
required ' no more than average plating experience
PRATT & WHITNEY AIRCRAFT DIVISION, ETC. 161
The Respondent 's continued refusal to give Schutta a job was dis-
cussed at a formal grievance meeting on April 7, 1960. At this meet-
ing Schirm for the first time announced his position that Schutta was
not qualified as a plater . Schutta has not been rehired , although sub-
sequent to the filing of the charge herein, Respondent also had occa-
sion to advertise for water treatment operators.
After the General Counsel rested at the conclusion of presenting
the foregoing evidence , Respondent , although it had the opportunity
to do so, raised no defense , but moved to dismiss the complaint on the
ground that the General Counsel had failed to sustain the burden of
proving the allegations of the complaint . Citing the evidence of
Schutta's 1940 larceny conviction , his lack of a high school diploma,
his misrepresentations in his employment application , and certain
discrepancies in his testimony , Respondent urged that the record in-
dicated ample reasons why Schutta was not suitable for reemployment.
Although the Trial Examiner denied the Respondent's motion for
dismissal at the hearing , he subsequently concluded in his Interme-
diate Report, in agreement with Respondent, that the General Counsel
had not sustained the burden of proving the allegations of the com-
plaint. Accordingly, the Trial Examiner recommended that the com-
plaint be dismissed . The Trial Examiner reasoned that Respondent
through its personnel director, Schirm, was unwilling to recall
Schutta for work at its vital defense plant in West Palm Beach,
Florida, because of Schutta's background , his conviction , and his mis-
representation of his employment record. Noting that Schirm's atti-
tude toward Schutta apparently changed by April 7, 1960, the Trial
Examiner speculated that Schirm had not, until that time, seen
Schutta's file, which contained Schutta's written statement to the se-
curity officer admitting his arrest and his employment misrepresenta-
tions. The Trial Examiner further assumed that the security officer
had kept. this matter to himself. Based on these speculations, the
Trial Examiner concluded that, because , of Schutta 's background,
Schirm determined not to rehire him.
The Trial Examiner 's conjecture that Schirm did not become aware
of Schutta 's background until many months after Schutta's layoff is
demonstrably unwarranted upon analysis of the facts of record. By
stipulation of the parties , the record here incorporates some 140 pages
of Schutta's testimony.in the earlier case, showing that Respondent
cross-examined Schutta extensively about, and Schutta again ad-
mitted, his prior arrest , his lack of a high school diploma , and his
misrepresentation of both facts in his original employment applica-
tion . Hence, from the record in this earlier case, the inference is in-
escapable that Schutta's early background was well known to Re-
spondent's responsible officials before the start of the 6-month period
624067-62-vol 133-12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during which Respondent repeatedly expressed a desire to reemploy
him when a vacancy occurred. Significantly, Schirm, himself, gave
no testimony which might dispel this inference, nor did Respondent
argue that Schirm was unaware of Schutta's earlier background.
The issue here presented is a narrow one. The Respondent does not
dispute the evidence which establishes the essential elements of a
prima facie case of violation of Section 8 (a) (4) and (1) of the Act.
Thus, the evidence shows, inter alia, that Schutta testified adversely
to Respondent in the prior case; that Schutta applied for rehire as a
plater or water treatment operator; that there have been openings in
those classifications subsequent to Schutta's application ; and that,
notwithstanding Schutta's competence to perform those jobs 5 and
the Respondent's repeated undertakings to hire him, Schutta was not
hired.
The Respondent argues, nonetheless, that no violation should be
found because Schutta in its view was unsuitable for reemployment.
It predicates its claim in this regard on two grounds : (1) Schutta had
falsely represented in his original employment application that he
was a high school graduate and that he had not been arrested; and
(2) Schutta had testified untruthfully in the instant case.
In our opinion the record establishes that the Respondent at no time
regarded these matters as sufficiently serious in nature to preclude
,Schutta's eligibility for employment. Thus, it appears that Schutta's
misrepresentations in his employment application became known to
the Respondent's security officer 1 month after he was originally
hired. The security officer commented at the time that the Respond-
ent would not "condemn a man for a mistake that happened 20 years
ago," and the Respondent retained Schutta in its employ for 13 or 14
months thereafter. In grievance meetings held during the fall of
1959, after Schutta had testified in the prior case and after the facts
regarding his background were known, Respondent's personnel man-
ager, Schirm, made it clear that he would be willing to hire Schutta
in any available position for which the latter was qualified. Finally,
as late as March 15, 1960, the Respondent put in letter form that it
would gladly consider Schutta for any position for which he was
qualified.
The Respondent's reliance upon Schutta's alleged untruthfulness
at the hearing in the instant case is, in our judgment, equally vul-
nerable. The Respondent adverts to certain discrepancies in Schutta's
testimony. However, the Trial Examiner found that Schutta was
"in the main sincere and truthful," the Respondent did not except to
this finding, and, in any event, Schutta's conduct at the hearing
6 The Respondent did not except to the Trial Examiner's finding, which we adopt, that
Schutta was qualified both as a plater and as a water treatment operator.
PRATT & WHITNEY AIRCRAFT DIVISION, ETC. 163
hardly serves to explain the Respondent's refusal to reemploy Schutta,
an event which antedated the hearing.
In view of the foregoing, we conclude that Schutta was suitable
for reemployment. Accordingly, as the General Counsel established
a prima facie case, the burden of going forward with evidence of a
defense shifted to the Respondent.6 The Respondent did not elect
to put in any such evidence although it was afforded an opportunity
to do so.
In this state of the record and in view of the inferences which we
have drawn from the evidence presented by the General Counsel, we
find and conclude that Respondent failed and refused to reemploy
Schutta because he gave testimony in a Board proceeding. By such
conduct the Respondent violated Section 8(a) (4) of the Act and
thereby interfered with the statutory rights guaranteed by Section 7
in violation of Section 8 (a) (1) 1 of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The conduct of the Respondent set forth above, occurring in con-
nection with the operations of Respondent as set forth in section I of
the Intermediate Report, has a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States, and tends to
lead to labor disputes burdening and obstructing the free flow of
commerce.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and take
•certain affirmative action designed to effectuate the policies of the Act.
We shall order the Respondent to reinstate Schutta to the position
of water treatment operator or plater, or to any substantially equiva-
lent position, without prejudice to his seniority and other rights and
privileges. We shall also require the Respondent to pay Schutta an
amount equal to that which he would have earned as wages from the
date of the discrimination to the date of offer of reinstatement, less
,his net earnings during such period, in accordance with the formula
set forth in F. W. Woolworth Company, 90 NLRB 289. The precise
date of the discrimination cannot be determined on the present record.
Schutta had had extensive experience as a plater and as an employee
in the water treatment plant. As already found, Solomonson, Re-
spondent's plating supervisor, told Ramsey on or about October 22,
1959, that he wanted to hire experienced platers. Moreover, at the
.hearing counsel for Respondent offered to stipulate that it had hired
platers and employees in its water treatment plant since Schutta's
° See Idaho Concrete Products Co , 123 NLRB 1649, 1663, and cases there cited.
See Vogue Lingerie, Inc., 123 NLRB 1009 , 1010-1011.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
layoff, but no dates were specified. Accordingly, we find that the date
of discrimination, from which backpay is to begin (a date to be de-
termined in the compliance stage) is whatever date, on or after
October 22, 1959, the Respondent first filled a vacancy for plater or
water treatment operator. Backpay will be computed at the rate
'applicable to the job so determined to have been available.
In accordance with our usual practice, the period from the date of
the Intermediate Report to the date of our Order herein will be ex-
cluded in computing the amount of backpay to which Schutta is
entitled, because of the Trial Examiner's recommendation that the
complaint be dismissed."
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of
the Act.
2. By refusing and failing to recall the Charging Party because he
testified in a prior Board proceeding against Respondent, Respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (4) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the
Act.
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 , Pratt & Whitney
Aircraft Division of United Aircraft Corporation , Florida Research
and Development Center, its officers , agents, successors , and assigns,
shall :
1.' Cease and desist from :
. (a) Refusing or failing to reinstate or ,otherwise discriminating
against an employee because he has given testimony in any proceeding
under the Act.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights to self-organization,
to form labor organizations , to join or assist any labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , and to refrain from any
or all such activities. '
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
8 Custom Underwear Manufacturing Company, 108 NLRB 117, 121.
PRATT & WHITNEY AIRCRAFT DIVISION, ETC. 165
(a) Offer Raymond S. Schutta immediate and full reinstatement,
without prejudice to his seniority and other rights and privileges, to
his former or substantially equivalent position including that of plater,
and make him whole for any loss of earnings suffered by reason of the
discrimination against him in the manner set forth in that section of
this Decision and Order entitled "The Remedy."
(b)_ Preserve and, upon request, make available to the, Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amounts of backpay due, and
the rights to reinstatement under the terms of this Order.
(c) Post at its plant at West Palm Beach, Florida, copies of the
notice attached hereto marked "Appendix." 9 Copies of said notice, to
be furnished by the Regional Director for the Twelfth Region, shall,
after being signed by Respondent's representative, be posted by Re-
spondent immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said
notices are not.altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the' date of this Order, what steps
Respondent has taken to comply herewith.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
9In 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 Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
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, as amended, we-hereby notify our employees that:
WE WILL NOT refuse or fail to reinstate, nor will we otherwise
discriminate, against an employee because he has given testimony
in a proceeding under the National Labor Relations Act, as
amended, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights to
self-organization, to form, join, or assist any labor organization,
to bargain collectively through representatives of their own
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(hoosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or
to refrain from any or all of such activities.
WE WILL offer Raymond S. Schutta immediate and full rein-
statement to his former or substantially equivalent position ,, with-
out prejudice to his seniority or other rights or privileges, and
make him whole for any loss of pay that he may have suffered by
reason of the discrimination against him.
All employees are free to become or remain, or refrain from
becoming or remaining , members of any labor organization.
PRATT & WHITNEY AIRCRAFT DIVISION OF
UNITED AIRCRAFT CORPORATION , FLORIDA
RESEARCH . ' AND DEVELOPMENT CENTER,
Employer.
Dated---------------- )3y------------------------------- ------
(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
Upon charges duly filed, the General Counsel of the National Labor Relations.
Board, for the Regional Director of the Twelfth Region (Tampa, Florida), issued
a complaint on May 27, 1960, against Pratt & Whitney Aircraft Division of United
Aircraft Corporation, Florida Research and Development Center, herein called the
Respondent or the Company, alleging that the Respondent had engaged in certain
unfair labor practices within the meaning of Section 8(a)(4) and (1) of the National
Labor Relations Act, as amended. The Respondent duly filed an answer in which
it denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held in West Palm Beach, Florida, between
July 13 and August 9, 1960, before the duly designated Trial Examiner. All parties
were represented by counsel and were afforded opportunity to adduce evidence, to
examine and cross-examine witnesses, to present oral argument, and to file briefs.
General Counsel at the close of the case made an oral argument., A brief has been
received from the Respondent which has been considered.
Upon the entire record, and from my observation of the witnesses. I hereby make
the following:
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Respondent , a corporation of the State of Delaware , is engaged in the develop-
ment and manufacture of aircraft and aircraft engines in the States of Connecticut
and Florida . Respondent annually ships in interstate commerce in the course of its
business , materials having a total value in excess of $ 1,000,000, and in turn; pur-
chases goods and materials valued in excess of $ 50,000 directly from without the
State of Florida. More than 50 percent of the Respondent 's business involves con-
tracts with the United States Government involving national defense. Respondent
admits, and I find , that it is and has been engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION CONCERNED
International Association of Machinists , AFL-CIO , is a labor organization within
the meaning of Section 2(5) of the Act.
PRATT & WHITNEY AIRCRAFT DIVISION, ETC. 167
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that on or about October 20, 1959, the Respondent ter-
minated the employment of Raymond S. Schutta, and has failed and refused to
employ or reemploy said Schutta in any capacity for which he is qualified because
Schutta testified on September 10, 1959, as a Government witness in a formal Board
proceeding, Case No. 12-CA-908, against this same Respondent-all in violation
of Section 8(a)(4) and (1) of the Act. Respondent admits that it has failed to em-
ploy or reemploy Schutta, but denies that its reason therefor was "because he gave
testimony in a Board proceeding."
This case opened on Wednesday, July 13, 1960, -at West Palm Beach, Florida, with
an estimated time of trial of between 1 and 2 days. The aura in'which the case
was heard was that 1,200 members of the International Association of Machinists
at Respondent's missile research plant were on strike and had been on strike since
June 14. It was an economic strike. Three thousand other employees continued to
work during the strike.- The Trial Examiner suggested to the counsel that any
matters in the nature of pretrial stipulations that could be taken care of at that time
should be accomplished in order to expedite and shorten the case. It was stipulated
that the testimony of Schutta, who was identified as a Charging Party, be made a
part of the record in this case. This testimony covered some 140 pages of transcript.
A settlement agreement of Case No. 12-CA-908 involving Pratt & Whitney and
International Association of Machinists (General Counsel Exhibit No. 17) was
introduced into evidence. In this settlement agreement, among other things, Re-
spondent had agreed not to discourage membership in IAM or any other labor or-
ganization , and to offer Walter W. Aylward immediate and full reinstatement to the
position he held before his discharge without prejudice to his seniority or other rights
and privileges. A like offer was made to Willard E. Bramlett and Stuart D. Shields,
and $6,200 was paid to the Regional Director for the Twelfth Region to be utilized
in making whole the above-named alleged discriminatees, as their individual cases
warranted.
The General Counsel opened his case by requesting enforcement of compliance
with a subpoena duces tecum directed to Frank F. Schirm, personnel manager,
United Aircraft Corporation, dated June 30, 1960. In this subpena Schirm was re-
quired and directed to appear before a Trial Examiner of the National Labor Rela-
tions Board in the city of West Palm Beach, Florida, on July 13, 1960, to testify in
this case, and he was ordered to bring and produce at said time and place the fol-
lowing books, records, correspondence, and documents: (1) the names and classifi-
cations of all employees in the water and waste plant (department 28), including
the dates hired therein, transferred thereto from other departments, transferred
therefrom to other departments, and the dates of layoffs and termination for the
period beginning October 20, 1959, and ending July 2, 1960; (2) the names and
classifications of all employees in the electro plating department, including the dates
hired therein, transferred thereto from other departments, transferred therefrom to
other departments, and the dates of layoff and termination, for the period beginning
October 20, 1959, and ending July 2, 1960; and (3) the complete personnel file of
Raymond S. Schutta, including all papers, memorandums, records, correspondence,
and documents.
Respondent's counsel, Wells, stated that Mr. Schirm was present in the courtroom
and prepared to testify and that if, in his testimony, it appears that these records are
material and relevant, the records are here and may be used in connection with his
testimony: "However, I do not understand that the function of a subpoena duces
tecum is to afford the counsel for the General Counsel an opportunity to go on a
fishing expedition to see what might be amongst some of the Company's records.
These records have not been shown at this point to be at all relevant or material, but
as a result of testimony, if they become relevant and material, we will then abide by
the Trial Examiner's ruling as to putting them into the record or using them as part
of the testimony in this case. However, we do not intend to merely appear here
with a group of records which we turn over to General Counsel and through which
thereupon he may thumb through and search through in the hope of finding some-
thing that might conceivably help his case."
General Counsel Westheimer argued that although Counsel Wells had not speci-
fically used the words "petition to revoke," he was now stating that the Company
had brought their records in and that "although they are not going to refuse to de-
liver them over to the General Counsel, that he feels, that the General Counsel is
not entitled to see such records." He also argued that it was obviously clear since
this case involved the qualifications and the reasons of Schutta's failure to be re-
hired, these records naturally are required, and more especially, Schutta's personnel
file containing the record as to the three departments involved: (1) where Mr.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schutta worked in a water treatment plant , (2) the department at which he sought
employment , and (3 ) his personnel file. Counsel Wells contended that until it had
been established that these records were shown to be properly relevant and material
in the trial of the case , the subpoena duces tecum signed by Board Chairman Leedom
does not direct the Respondent at this point of the trial to turn over the documents
described in the subpena. Accordingly, he declined to honor General Counsel's
request . Specifically, Respondent 's counsel stated that he was willing to produce
them to the extent ` that they become relevant or material in this hearing. Among
other things he contended that these documents were in the nature of confidential
security matters , investigations , and reports which were confidential files of the
Company which could not and would not be released. The Trial Examiner sug-
gested to the General Counsel at this point that he go into the district court and
seek enforcement as provided by -law. The General Counsel decided not to follow
the usual procedure , but rather called Schirm as an adverse witness under Section
43(b) of the Federal Rules of Procedure. He attempted to use this method to
accomplish compliance with the terms ' of his subpena . All of the exhibits introduced
into evidence by General Counsel were admitted after having been shown to be
material and/or relevant to the satisfaction of the Trial Examiner. The documentary
evidence admitted under this formula is set forth below.
Documentary Evidence
The first document showing Schutta's employment is dated October 12, 1958, and
is an application for employment at Pratt & Whitney Aircraft Division . This docu-
ment does not show the type of work applied for , but under additional comments,
if any, Schutta wrote "I have an operator 's license 'B ' for water plant operation."
This application carried a legend which stated "I understand that falsification or
omission of facts called for in this application is cause for cancellation of the appli-
cation and/or separation from the Company 's service if I have been employed."
Immediately thereunder is the notation "Have you ever been arrested ? Answer,
No," followed by the signature of Schutta . Under the column dealing with edu-
cation , high or prep school , Schutta answered that he did graduate from Riverside
High School , "specializing in Science ." He also listed technical trade or business
school as Milwaukee Vocational , "specialization : Time and Motion Studies"; in
college or university , he listed "U. W. Exd. Div." with no specialization . Under post
graduate or other education , he listed "University Florida, Water School ," and under
specialization , "studying for operator's license." Under work experience , he listed
employment with the town of Lantana as city employee in water department as
truckdriver at $66 per week , 1953-58 . He also listed Cutler and Hammer , Inc., of
Milwaukee , Wisconsin , as electroplating at $3.85 per hour. On his employment
questionnaire for United Aircraft Corporation (General Counsel Exhibit No. 4,
dated August 12 , 1958 , with notation of employment date August 21 , 1958 ), Schutta
listed position applied for as "water operator ." Under education qualifications, he
listed high school as St. John 's, Riverside Public School , Milwaukee, 1929-33, and
under inquiry: "Did you graduate," answered yes. Under college or university, he
gave "University of Florida , Extension , Water School 1957." Under question "Have
you ever been arrested , if so give information , etc.," there is a notation "Says no
8-20-58."
Under date of August 25, 1958 , the personnel investigation section of Pratt &
Whitney addressed a letter to Cutler -Hammer, Inc., Milwaukee , Wisconsin, in which
they requested any information concerning the applicant Schutta of dates of employ-
ment, type of work performed , ability, character , conduct , and reason for termina-
tion-as well as a question : "Did you consider this person to be of such character
as to permit employment on work affecting national security ?" The reply, on the
reverse page ( General Counsel 's Exhibit No. 8-B , dated August 28, 1958 ), shows a
notation by Cutler-Hammer , Inc., showing employment January 29, 1941, to
August 18, 1952; occupation : plater ; disposition : average ; character: honest, sober,
capable, and reliable; production : above average; skill : above average; attendance
quotation : excellent , with a final notation , "would be eligible for reemployment."
On General Counsel 's Exhibit No. 7, entitled "Further Investigation" and under
heading "Supplementary Interview ," dated September 26, 1958, in an interview by
W. C. Guber, Schutta signed a statement:
I admit I falsified my questionnaire by failing to list the following arrest-
7-30-40 larceny-1 year probation ( this was while working at Gimbel 's Depart-
ment Store : I had a coat in my possession and had no sales slip for it. An
investigation was made and my house was searched and I was made to account
for items in the house . I had receipts for everything but the coat ). This was
PRATT & WHITNEY AIRCRAFT DIVISION, ETC. 169
the only time I was ever arrested. I also falsified my education on my question-
naire by indicating I graduated from high school. I had sufficient credits but
did not receive a diploma.
With this record in his folder Schutta was permitted to remain for 14 months in
the employ of Pratt & Whitney, or until he was replaced in the water department by
Mr. Aylward, the alleged discriminatee, involved in the unfair labor practice case
in which Schutta testified. (Schutta had been released when Aylward was rein-
stated because of his lack of seniority. There is no question of an unfair labor prac-
tice in his discharge at this time.)
This supplementary interview (General Counsel's Exhibit No. 7) came into the
hands of Mr. Evans, the security officer, in due course. Asked on redirect examina-
tion to tell the circumstances surrounding this statement, Schutta testified: "Well, I
was called into his office and he had a questionnaire in front of him, one of those
applications, and he said on that application that I had stated that I had never been
arrested and that I had said that I was a high school graduate, although I hadn't
graduated, and •I told him, I explained why or how I had made the mistakes."
Further queried by General Counsel Westheimer:
Q. And what did you tell him?
A. At that time, I told him I was a little ashamed of the fact that I had gone
to my senior year and dropped out prior to graduation and then he asked me
about the incident with the coat.
Q. What did you tell him with reference to that?
A. I told him that it had just escaped my memory at the time.
Q. Now, what did Mr. Evans say, if anything?
A. He filled this out and said to me that it's nothing to worry about and he
said only you and I and the security files will ever see what is in here. He said,
we are not about to condemn a man for a mistake that happened 20 years ago;
so I signed it. [Emphasis supplied.]
The next document (General Counsel's Exhibit No. 5) entitled "Application for
Employment Pratt & Whitney Aircraft: Rehire" and dated February 17, 1960, shows
type of work applied for: (1) electroplating and heat treatment, and (2) water
operator. Under the education section, high or prep school, Schutta recited "River-
side High, Milwaukee, 1933-37," Did you graduate: answer, No, and Post Graduate
column lists: U. of Florida, annually, Water School (short courses) Under the
"Work performed" at Cutler-Hammer, Inc., he indicated: "electroplating and heat
treatment," rate of pay: "piecework." Under question: Have you ever been arrested9
he answered "Yes." Under the section for interviewer's notes is a notation: "Petty
Larceny-19 yrs. of age-Milwaukee, Wis." and a further notation: "due to lack
of experimental plating experience feel applicant's best field of work is water and
waste operator. Signed J. E. H."
Next in sequence is Schutta's formal grievance. On Pratt & Whitney Aircraft
grievance form (General Counsel's Exhibit No. 6) dated April 7, 1960, "Foreman's
use only," there is the following recitation, "Statement of grievance and facts in-
volved: On 3-9-60 it was called to my attention that the company had run an ad
in the local newspapers for `electroplaters.' I was laid off 10-20-59 from water
treatment plant and advised the company of my experience in plating even to the
degree of filling out a new application, 3 weeks ago, showing this experience. Remedy
requested: I be recalled to the plating classification job opening before any new
employee is hired to fill such job opening. Violation claimed: Article VII, B and C-
Section 1 and 17 and any and all other provisions of this agreement that may apply.
Submitted 3-15-60."
General Counsel's Exhibit No 9-A is an hourly job description of Pratt & Whitney
Aircraft-Florida Operations showing the duties performed by a plater together with
operating instructions. General Counsel's Exhibit No. 9-B is a document entitled
"Substantiating Data-Hourly job rating" and covers the factors- education, experi-
ence, initiative, ingenuity, physical demands, mental and visual demands, equipment
and process responsibility, materiel and product responsibility, safety of others
responsibility, work of others responsibility, working conditions, and unavoidable
hazards.
General Counsel's Exhibits Nos 10, It, and 12 are respectively want ads inserted
in local newspapers, particularly Palm Beach Post Times, Sunday, March 6. 1960.
Under "Help Wanted, Men," there was a list of six categories among which were
platers. A similar advertisement appeared on Sunday, March 13, 1960, in which
there were eight classifications, among which was platers. The Post Times classified
of Friday, June 24, 1960, carried "a partial list of immediate openings," among which
were water and waste treatment operators General Counsel's Exhibit No 13 was
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a letter directed to H. C. Holmes, employment counsellor of Respondent Pratt &
Whitney. This letter over the signature of Schutta reads as follows:
On February 17, 1960, I filed an application for "rehire" and was interviewed
by an employment counsellor, at the firm's offices. My application was for the
position of plater. At that time I was informed that when an opening would
develop, I would be notified by mail or phone. On March 6, 1960, your firm
published an advertisement in the Palm Beach Post which expressed a need for
platers. Since I have not received any communication from you regarding my
applications, I assume you probably have overlooked it? Will you please investi-
gate this matter and acknowledge by return mail? May I also remind you that
I am available for immediate employment.
General Counsel's Exhibit No. 14 is a letter from Pratt & Whitney Aircraft signed
by Loring E. Holmes, employment officer, written to Schutta under date of March 15,
1960. This letter reads as follows:
DEAR 'MR SCHUTTA: Thank you for your recent letter relative to the possibili-
ties of employment with this division. We have reviewed our current job open-
ings and regret that we do not have a position to offer a person of your experience
and qualifications. In the event an appropriate opening occurs in the near
future, we shall gladly give you further consideration.
Very truly yours,
A principal witness called by General Counsel was Walter Woodrow Aylward, now
president of the local and chairman of the negotiating and grievance committees.
Aylward is presently in the water and waste treatment department and is the man who
replaced Schutta when he, Aylward, was reinstated as a result of the Board order in
the case in which Schutta had given testimony against the Company. His testimony
is supported by General Counsel's first witness, R R. Ramsey, whose version of
events was similar to Aylward's. Queried by General Counsel Westheimer, Aylward
testified:
Q. As president of the Union, or as chairman of the grievance committee, did
you ever file a grievance on behalf of Mr. Schutta?
A. I did.
Q Will you describe the circumstances, the time when this took place.
A. Mr. Schutta called me at the union office, and told me that Pratt &
Whitney had been applying for electroplaters
Q. When was this he called you?
A It was early in March, sometime around the first week in March. He told
me that he had an application on file with Pratt & Whitney, an application for
electroplater. He said he was receiving no consideration for the job, would I file
a grievance for him? I said yes. We drew up the grievance for Mr. Schutta and
submitted it to the Company.
Q. When did you speak to Mr. Schirm?
A. The first time I spoke to him was outside the water plant.
Q. Outside the water plant. What was said?
A. I told Mr. Schirm that Mr. Schutta wanted a grievance filed, and I would
have to submit it as the third step of the grievance procedure, because of the
fact that he was on a layoff status. He asked me what Mr. Schutta's troubles
were, and I said, "well, you are advertising for electro platers in the newspapers,
and Mr. Schutta had applied for a job and he is not receiving any considera-
tion." Mr. Schirm said that he had . advertisements in the paper for
electro platers, but they didn't really need electro platers. I said, "Why did you
advertise for them?" He said, "Well, we bought the space so we used it to fill up
the space." I said, "It doesn't seem a reasonable answer to the question." He
said, "Why don't you file a grievance at the next third step meeting, and we
will discuss it again?"
Q. Did you file such a grievance?
A. Yes, I submitted it on an agenda letter for the next third step meeting.
Q. And when was this agenda letter, if you recall?
A. I believe I sent the letter on March 23. We could ordinarily have held
the meeting on March 31, but Mr. Schirm said he was busy at that time, could
we possibly put it off another week. I said, "it is all right with us" so we
discussed it on April 7.
Q. What was said at this meeting on April 7 with reference to Mr. Schutta?
A. Well, generally when we submitted the letter we started off by giving the
situation to Mr. Schirm; said that Mr. Schutta had noticed they had an ad"ertise-
ment in the newspapers for electro platers, that Mr. Schutta had applied for
PRATT & WHITNEY AIRCRAFT DIVISION, ETC. 171
the job and he didn't feel as though he was receiving any consideration from
the Company. So Mr. Schirm said, "there is no job openings in electro plat-
ings." I said, "you advertised for them, it is evident you needed some. Mr.
Schutta wants to know why you are not considering him." He said, "do
you have copies of the papers, or the ads?" I said; "we do." He said, "well,
it is evident that you haven't been in touch with Mr. Schutta. Mr. Schutta
has been notified by mail that he is not qualified for the job." I admitted the
fact that I didn't know at that time that Mr. Schutta had received the letter.
I asked Mr. Schirm, I said, "well, how did you judge his qualifications?" He
said, "my supervision in the plating department told me that Mr. Schutta's
qualifications were not sufficient."
Q. Did he mention who in the plating supervision?
A. Yes, he mentioned two names. The only one I recall, I think, is Mr.
Solomonson. I believe he is a supervisor.
Q. All right, continue.
A. Mr. Schirm said that Mr. Schutta was not qualified for the job. So I
said, "well, we don't particularly feel that he has received justice, so we will
appeal this grievance to the fourth step grievance procedure," which we did.
Q. Did you have any further conversations with Mr. Schirm subsequent to
this meeting of April 7?
A. I asked Mr. Schirm, I said, "is there any possibility of discussing Mr.
Schutta's condition, and we can avoid this fourth step meeting?" He said,
"well, we can discuss it, but" he says, "I don't know what good it will do, the
fact that he hasn't the necessary qualifications." I said , "you probably will
have openings coming up here and there if you advertised for them, at least
you can try to give the man consideration in view of the fact that he has experi-
ence, he has been a good employee during the time with the company." Mr.
Schirm said, "we would give him a job if we had it available for him but he is
not qualified for the job that is open." He again stated the fact that his
supervision advised him that Mr. Schutta's qualifications were not sufficient.
Q. At the April 7 meeting did he explain in what manner Mr. Schutta was
not qualified?
A. No, they didn't discuss his qualifications. He just said he wasn't qualified.
Q. Was a fourth step grievance procedure ever held?
A. Yes, it was.
Q. Do you recall when this was held9
A. Early in May, I think around May 5, somewhere around there.
Q. Who attended this fourth step meeting?
A. Mr. Summers, International Representative, and myself for the Union,
and Mr. Schirm and Mr. McLaughlin for the Company
Q. Will you please state what was said at this fourth step grievance?
A. Mr. Summers discussed the grievance at the fourth step with Mr. Schirm.
I did not enter into the discussion at the fourth step.
Q. Mr. Aylward, do you recall what was said at that meeting?
A. Oh, I can't recall the actual words. The general discussion was that Mr.
Schutta was not qualified for the job. That was the general gist of the
conversation
On cross-examination Respondent Counsel Wells got admissions from Aylward
and other witnesses that they were just carrying out the processing of a grievance in
accordance with contract procedure and they assumed that Schutta was qualified.
H. C. Summers, special representative for the International Association of Ma-
chinists, testified as a witness for General Counsel. He stated that on May 5, in
company with Aylward, president of the Local Union, he processed at the fourth
step Schutta's grievance before Company Representatives Schirm and McLaughlin.
His testimony was as follows:
Then we got into the discussion of the grievance itself, and Mr. Schirm said that
he didn't understand just exactly what it was that Ray Schutta was after. I
replied that in my opinion the grievance spoke for itself, and certainly we were
contending that he should at least have offered him a job in the classification of
electric plater. Mr. Schirm then said he still didn't understand just exactly what
it was he was after; that he had been off from work approximately six months
and he made no effort to contact them that he knew anything about. I pointed
out to him that it was my understanding that Schutta had contacted the Com-
pany on several occasions , even to the extent that he came back to the plant and
filed a new application, or amended his old application to include, to be sure
and include all of the experience that he had as an electric plater. I again
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked Mr . Schirm whether or not there was not an opening for electric platers.
He said that there weren 't any openings in the electric plating classification. I
then replied to him what I had seen in the local newspapers where there were
running ads for electro platers. He said they may have been , but there was still
no openings . He then led into a discussion of Schutta as a plater . I asked him
why he was not being considered , why he wasn 't offered a job in plating? He
said , "the Company just doesn 't think he is qualified ." Then with a short dis-
cussion of the qualifications themselves , I suggested to Mr. Schirm that inasmuch
as I was not in a position to go into the details of electro plating, certainly I did
not feel that I was qualified to sit there and discuss details of electro platers
as such . I suggested that possibly we arrange another meeting in which we
could bring Schutta in, and then we could sit down together and certainly could
go into the details then of Schutta 's electro plating experience . Mr. McLaughlin
then spoke up and said this would not be appropriate , inasmuch as it would be a
violation of the Taft-Hartley Act itself, because of the fact that Schutta had filed
a charge. I told him in my opinion it would not be, and certainly if we could
arrange such a meeting like this we could maybe serve as a basis on which we
could wash out this whole thing , that all that Schutta was interested in was a job.
Mr. Schirm then spoke up and said also this could not be done , because it would
be in violation of the Act by talking to Schutta , inasmuch as he had already filed
the charge itself. Again we discussed , or I brought up the question again, why
don't you go ahead and put the man to work, and let us wash this whole thing out
so we wouldn 't go any further? Mr. Schirm replied that he couldn't do it, that
again the interviewers had interviewed Schutta, and as far as the Company was
concerned , he was not qualified for the job , thereby he was denying the grievance.
In response to General Counsel 's question as to whether anything was said about
Schutta's reemployment as a plater with reference to the contract the Company
had with the Union , Summers testified:
Actually, in discussing the grievance , on the fact of the agreement there was one
violation that was actually enumerated , I think, as a violation . I don 't recall
the exact provision of the agreement itself. I pointed out that even though the
agreement did not make it specific, did not make it mandatory upon the Com-
pany that they had to offer employment to an employee in another seniority
group , but certainly the language was there that implied that this would be done
where a man was laid off in one seniority group , if he had the qualifications he
would be offered employment in another seniority group, and certainly under the
terms of this agreement , this language being there, it certainly indicated they
would make this kind of a move, and this we were requesting them to do.i
Frank N. Nolan , a witness called by the General Counsel , testified that Schutta's
grievance was discussed at least four times at grievance meetings . At the first
meeting in the latter part of October , he testified that Ramsey pointed out that
Schutta would like to continue working for the Company . He also pointed out that
he was capable of doing other things besides water treatment , and he mentioned
extensive experience in plating that Schutta had had somewhere up north. He
quoted Schirm as saying: "He said if an opening developed that he would be glad
to put him in that job . . . into a plating job, and he also , if he was qualified for
some other type of job , too in addition to that ." Nolan admitted on cross-
examination that Schirm stated that Schutta was not qualified for the type of
plating in this plant of Respondent . He also admitted that he did not know as a
matter of fact that Schutta was qualified as a plater.
Albert Overton , a machinist and member of the negotiating committee, testified
in a vein similar to that heretofore given and both counsel agreed that this evidence
would be merely cumulative.
Hugh LaBuff, a witness called by General Counsel , testified that he saw an ad in
the Tampa Tribune on March 13, 1960 , wherein Pratt & Whitney was advertising for
platers, that he drove out on March 14 and applied for a job. He stated that he
was interviewed by Mr. Solomonson and was offered a iob at $2 44 per hour and that
he was hired on Monday , March 28. He stated that he was a graduate of Hobart
College, class of 1951 , and worked in physical chemistry for 8 years and had 2 years
of electroplating experience among other qualifications . He stated that he had
never noticed any experimental plating being done at the plant but that all engines
'The portion of the agreement in question was offered into evidence and reads as
follows : "Nothing herein shall preclude the Company from offering a transfer to an
employee scheduled to be laid off from a job in one occupational group to a job in a
different occupational group."
PRATT & WHITNEY AIRCRAFT DIVISION, ETC. 173
made at the Florida operations were experimental in nature and that the plating
is standard plating. He stated that he quit work when the strike began in June and
that he did not go back to work after the strike because he was returning to school
in the fall.
With the above-quoted and described evidence, the General Counsel closed his
case and rested. Thereupon, Respondent Counsel Wells moved, to dismiss the
General Counsel's case and complaint, and rested. The Trial Examiner reserved
ruling until issuing his Intermediate Report. General Counsel Westheimer made a
comprehensive oral argument. Counsel Wells submitted a brief to the Trial
Examiner.
Respondent Counsel Wells, who it will be recalled, put in no defense after General
Counsel had closed his case but stood on his motion to dismiss the complaint, sub-
mitted a brief to the Trial Examiner on September 12, 1960, which, in the opinion of
the Trial Examiner, is unanswerable and states reasons which are dispositive of the
case. Cogent portions of this brief by Counsellor Wells are quoted as follows:
After Schutta's employment was terminated [on October 20, 1959], he filed, on
February 17, 1960, an application with Respondent to be rehired in another po-
sition [See General Counsel's Exhibit No. 5]. On this application Schutta
asked that he be employed by Respondent as a plater. The record shows, and
the Respondent concedes, that there were openings for platers at, or shortly after,
the time that Schutta filed this application. Indeed, as numerous exhibits intro-
duced by the General Counsel clearly show, the Respondent had advertised
generally soliciting applicants for the job as plater. The record further shows
that Respondent did not hire Schutta as a plater whereas it did hire an employee
by the name of LaBuff as a plater. The record further shows that Schutta,
the Charging Party, had testified as a witness for the Board in a prior proceeding
before the Board in a case in which it was alleged that the Respondent had com-
mitted certain unfair labor practices. The record also shows that Schutta had
worked for another company for approximately 12 years as a plater before he had
gone to work for the Respondent, and that this employment as a plater had been
during the period from 1940 to 1952.
The record shows that when Schutta, the Charging Party, filed his original appli-
cation for employment with the Respondent in 1958, he falsified this application
in several respects. Thus, his application stated that he had never been arrested.
In fact, however, Schutta had been arrested for petty larceny; he had pleaded
guilty to having committed this crime; he had been sentenced to serve a year on
probation; and he had been released from probation after three months of con-
tacting the probation officer. Schutta's application also stated that he was a high
school graduate, whereas, in fact, he was not a high school graduate. His appli-
cation further stated that while he was employed as a plater from 1940 to 1952,
prior to his employment by the Respondent in 1958, he had been paid at the rate
of $3.85 per hour. In testifying in this proceeding, however, Schutta could not
recall exactly what his pay as a plater had been, but estimated it to be con-
siderably less than $3.85 per hour (Tr. 368-373). Schutta testified on direct
examination that when he first applied for employment with Respondent in 1958,
he applies for the position of "water and waste treatment operator or electro-
plater" (Tr. 219); that a personnel interviewer by the name of Holmes offered to
place him either in the job as water and waste treatment operator or electro-
plater (Tr. 220); and that Schutta had elected to take the job of water and waste
treatment operator (Tr. 219-220). Schutta further testified that when he applied
for re-employment in 1960, he was again interviewed by Holmes, but that this
time Holmes did not offer him a job in the plating department (Tr. 262-263).
The General Counsel's position appears to be that the Act requires an em-
ployer to hire any worker who has previously testified against the employer in
a Labor Board proceeding, if the employer has a job available on which the
applicant has had previous experience. The General Counsel's position appears
to be further that this is true although the applicant is one who has falsified his
application by attempting to hide the fact that he had been arrested and sen-
tenced for petty larceny, or regardless of the fact that as a witness in the Labor
Board proceeding he was addicted to giving absurdly incredible testimony and
thereafter to giving equally absurd explanations as to why his testimony had
been inaccurate.
It is well established principle of law, of course, that the General Counsel
must produce evidence to substantiate the allegations of the complaint . In this
case the General Counsel has not produced a single shred of evidence which
shows that the Respondent's refusal to re-employ Schutta was based on the fact
that Schutta had testified earlier in a Labor Board proceeding. Certainly it
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cannot be contended that, upon being faced with a charge such as that con-
tained in the complaint in this case, the Respondent has any burden of showing
why it had refused to employ any applicant for a job. This is precisely why
Respondent in this case retused to spend its own time and the time of the Trial
Examiner introducing evidence into the record with respect to the precise rea-
sons why it preferred not to rehire Schutta when he applied for re-employment
in 1960. Certainly, on the record now before the Trial Examiner, there is at
least as much evidence to support the inference that Respondent did not rehire
Schutta because of his past record as there is evidence to support an inference
that Respondent's failure to rehire Schutta was occasioned by the fact that he
had testified in the earlier Board proceeding. Under these circumstances it is
impossible to conclude as a matter of law that the General Counsel has sub-
stantiated his burden of proof in this case and, therefore, the complaint should
be dismissed.
Respondent perhaps could have explained by testimony of one of its repre-
sentatives why it had hired LaBuff while at the same time it had refused to hire
Schutta as an electro-plater when Schutta applied for that job in 1960. How-
ever, such testimony would be superfluous to evidence already in the record.
Thus, LaBuff had no record of any criminal activity, had not in any way sought
to mislead the Respondent on his application for employment, had a fine scho-
lastic and military record; and had had the experience qualifying him for the
job as electro-plater. For Respondent to adduce testimony to the effect that it
preferred to hire an employee of the character of LaBuff rather one having
Schutta's character would be testimony merely stating the obvious.
Nothing in the Act requires an employer to hire a man simply because he
has been a witness in a Board proceeding, and nothing in the law prohibits an
employer from selecting, on a non-discruninatory basis, the persons whom it
hires. In this case, General Counsel, in his closing argument, did not even
suggest the Respondent had discriminated against Schutta by hiring LaBuff.
Nor did the General Counsel introduce any evidence whatsoever showing that
Respondent had hired other employees whose character was no better or worse
than Schutta's. It is true that after Respondent became aware of Schutta's
falsification of an application with respect to his criminal record and to his edu-
cational background, the Respondent did not discharge him, but kept him in its
employement until it terminated him on October 20, 1959. However charitable
the Respondent's action in this respect was, it lends no support to a conclusion
that Schutta was such a desirable employee that the Respondent, but for his
testimony in the earlier proceeding, would have rehired him in 1960 for an en-
tirely different job which Respondent was then able to fill by hiring individuals
such'as LaBuff.,
Conclusion
The Trial Examiner does not concur with Respondent's counsel that Schutta's
testimony is incredible. On the contrary he finds that the rule on credibility laid
down by Judge Learned Hand in Universal Camera case is applicable. N.L.R.B. v.
Universal Camera Corporation, 179 F. 2d 749 (C.A. 2). Judge Learned Hand
stated the rule thus: "It is no reason for refusing to accept everything that a witness
says because you do not believe all of it; nothing is more common in all kinds of
judicial decisions than to believe some and not all." This same rule would be ap-
plicable with reference to portions of Mr. Schirm's testimony in which he appeared
to equivocate. It was obvious to the Trial Examiner from his listening to and ob-
serving the witnesses, and his study of the entire record, that both men were in the
main sincere and truthful. Schutta, a prolix person, doubtless believed that he was
being discriminated against because of his former testimony. Undoubtedly he was
competent both as a water operator and also as an electroplater. Also, he had made
a clean breast of his youthful involvement to the security officer who had checked
up on him 14 months before and had gotten a clean bill of health.
As to Mr. Schirm, it is the Trial Examiner's opinion that in the early stages of
Schutta's effort and attempt to get reemployed that Schirm, the head personnel
manager of this vital, secret, and critical missile development project did not even
know what was in Schutta's confidential personnel file It would appear from the
record testimony that Schirm's attitude changed. This change toward Schutta is
evidenced by the undenied and credited testimony of other witnesses such as Aylward,
Ramsey, and Summers. The obvious reason, at least to the Trial Examiner, was
that Mr Schirm, in his capacity as personnel manager in a vital defense plant,
could not and would not assume the responsibility of reemploying a man either as a
water operator or plater, although clearly competent, who had had such an un-
fortunate experience in his early youth-and which experience he had attempted
NEW ENGLAND TANK INDUSTRIES , INC. 175
unsuccessfully to cover up when originally employed. Security Officer Guber, in his
discretion and at his echelon of responsibility , could keep Schutta's secret, but as
sound administration , the head personnel officer had no such freedom of action after
Schutta's security file had been broken. Schutta's early environment and second
generation Polish background possibly militated against him . Under the circum-
stances, Respondent Counsel Wells' refusal to make available confidential security
records in a project as vital to our country's security as Respondent's operations is
entirely understandable to the Trial Examiner. He was carrying out security policy
and was entirely within his rights in insisting that only material and relevant
evidence be made available to the General Counsel unless directed and ordered by a
Federal district judge to produce confidential documents and/or testimony. In light
of all of the foregoing and upon the basis of the entire record, in the opinion of the
Trial Examiner, the General Counsel has not sustained the allegations of his comma
plaint by a preponderance of the evidence. The inferences necessary to be drawn to
sustain the complaint lack evidentiary foundation. Accordingly, it will be
recommended that the complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Company is engaged in commerce within the meaning of the Act.
2. International Association of Machinists , AFL-CIO, is a labor organization
within the meaning of the Act.
3. Respondent has not engaged in unfair labor practices as alleged in the
complaint.
I therefore recommend that the complaint be dismissed.
New England Tank Industries , Inc. and Independent Union of
Plant Protection Employees in the Electrical and Machine
Industry and Oil , Chemical & Atomic Workers , International
Union, AFL-CIO, Local 14-366 . Cases Nos. 1-CA-3302 and
1-CA-3313. September 15, 1961
DECISION AND ORDER
On February 28, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate 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 Intermediate
Report attached hereto. The Respondent and the General Counsel
filed exceptions to the Intermediate Report, together with supporting
briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing, and finds that no prejudicial error, was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, except as modified herein.'
IWe agree with the Trial Examiner's finding that Respondent violated Section 8(a) (1)
and (3) by refusing to employ, or reemploy, at the Limestone-Searsport pipeline, the in-
dividuals named in the Appendix attached hereto. In our opinion, the record amply
supports the conclusion that these individuals were denied employment for reasons relat-
133 NLRB No. 25.