W. A. Jones Foundry and Machine Co.

National Labor Relations Board - Board Decisions

Mar 31, 1941

30 N.L.R.B. 809 (N.L.R.B. 1941)

In the Matter of W. A. JONES FOUNDRY AND MACHINE CO., A COR-
PORATION and INTERNATIONAL ASSOCIATION OF MACHINISTS , DISTRICT
No. 8, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR
Case No. C-1731.-Decided March 31, 191,1
Jurisdiction : general power transmission machinery manufacturing industry.
Unfair Labor Practices
Interference, Restraint , and Coercion : anti-union statements ; declarations of
union preference ; misleading explanations of rights under the Act; advance
announcement of refusal to agree to possible collective, bargaining requests;
permitting inside organizational activities on company time while denying
equal privilege to oustide organization ; granting wage increases for the
purpose of defeating self-organization. -
Discrimination : discharging an employee because of his union activity.
Remedial Orders : employer ordered-to cease and desist unfair labor practices;
no provision as to reinstatement or back pay made as to employee discrim-
inated against who was reinstated and paid in full for time lost.
Mr. Stephen M. Reynolds, for the Board.
Fyffe & Clarke, by Mr. Albert J. Smith, of Chicago, Ill., for the
respondent.
Mr. Harry Cooper, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by International Association of Machinists,
District No. 8, affiliated with the American Federation of Labor,
herein called the Union, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Thirteenth Region
(Chicago, Illinois), issued its complaint dated August 22, 1940,
against W. A. Jones Foundry and Machine Co., a corporation, Chi-
cago, Illinois, herein called the respondent, alleging that the respond-
ent had engaged in and was engaging in unfair labor practices affect-
ing commerce within the'meaning of Section 8 (1) and (3) and Sec-
tion 2 (6) and (7) of the•National tabor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint, together with notice
of hearing thereon, were duly served upon the respondent and the
Union.
30 N. L. R. B , No. 119.
809
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices, the complaint alleged,
in substance, that the respondent, from about November 10, 1939, to
the date of the complaint, questioned its employees about their union
affiliation or activities, warned them against affiliating with a union or
engaging in union activities, threatened to close' its plant if the em-
ployees affiliated with a union, suggested and.urged that the employees
deal with the respondent individually or through a "company union"
and not through an outside union, and granted individual and general
wage increases for the purpose of discouraging employees from mem-
bership or activity in the Union or from engaging in concerted activity
for the purpose of collective bargaining or other mutual aid or pro-
tection. The complaint further alleged that on or about November
11, 1939, the respondent discharged William T. Polston for the reason
that he was a member of and active in the Union, thereby discriminat-
ing in regard to his hire and tenure of employment and discouraging
membership in the Union; and that by the foregoing and other acts the
respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act. The re-
spondent filed its answer dated August 30, 1940, wherein it admitted
the allegations of the complaint concerning the nature of its business,
but denied that it had engaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held in Chicago, Illinois, on Sep-
tember.9, 1940, before J. J. Fitzpatrick, the' Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the respond-
ent were represented by counsel and participated in the hearing. Full
opportunity to be, heard, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues was afforded all parties.
At the close of the Board's case and again at the conclusion of the
hearing, the respondent moved to dismiss the complaint, which mo-
tions were denied by the Trial Examiner. At the close of the Board's
case, counsel for the Board moved to amend the complaint to conform
to the proof in minor particulars. This motion was granted without
objection. During the hearing the Trial Examiner made various rul-
ings on other motions and on objections to the admission of evidence.
,The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
On November 15, 1940, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the respondent and the
Union, wherein he found that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
Act, and recommended that the respondent cease and desist from its
unfair labor, practices.
W. A. JONES FOUNDRY & MACHINE CO. 811
On December 4, 1940, the respondent filed exceptions to the Inter-
mediate Report and, on December 21, 1940, a brief in support of its
exceptions. The Board has considered the exceptions to the Inter-
mediate Report and the brief in support thereof and, save as the ex-
ceptions are consistent with the findings, conclusions, and order set
forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, W. A. Jones Foundry and Machine Co., is an
Illinois corporation having its principal office and place of business
in the City of Chicago, State of Illinois. It is engaged in the manu-
facture, sale, and distribution of speed reducers, transmission mecha-
nism, and general power transmission machinery. The principal raw
materials purchased by the respondent in the manufacture of the afore-
said products are pig iron, coke, steel castings, and brass. The value
of these raw materials used by respondent is approximately $350,000
per annum, 75 to 80 per cent of which originates outside the State of
Illinois. The annual sales of -the respondent average approximately
$1,200,000, from 60, to 70 per cent of which represents sales to points
Outside the State of Illinois.
The respondent maintains sales offices in New York and Buffalo,
New York; Philadelphia and Pittsburgh, Pennsylvania; Milwaukee,
Wisconsin; Cleveland and Cincinnati, Ohio; and Detroit, Michigan.
It also has salesmen and commission agents in other parts of the
country. The respondent employs approximately 310 production and
maintenance workers. In its answer the respondent admitted the
interstate character of its business.
II. THE ORGANIZATION INVOLVED
International Association of Machinists, District No. 8, is a labor
organization affiliated with the American Federation of Labor, ad-
mitting to membership employees in the respondent's machine shop.
III. THE UNFAIR LABOR PRACTICES
A. The discriminatory discharge
On November 9, 1939, William T. Polston, Norman Ebert, and Joe
Gora,'employees in the respondent's machine shop, after discussions on
the subject with other employees, signed membership applications in
the Union and thereafter began active solicitation of members in the
respondent's machine shop. On November 10 Polston was told by his
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman, Cook, that lie was "l"aid off." Upon Polston's asking why,
Cook said that he had noticed that employees had stopped at Polston's
machine and talked to him. Polston disclaimed responsibility for
such conduct on the part of other employees and stated that, he had
remained at his machine working during the conversations. Cook
then stated, with reference to Poiston's termination, that he was
"taking orders from somebody else" and added, "You can always come
to me for a reference." Polston then received from the timekeeper
his check and a pink slip which said "Work unsatisfactory." Polston
reported the matter to the Union, and a week and a half later, after
its intercession with the respondent in his behalf, he was called back
to work and paid for the time he had been out. Upon his return,
he was interviewed by Coleman, the respondent's vice president and
secretary. Coleman told Polston that he was receiving a raise in pay,
that the other employees would receive a small increase, and that
Polston, upon his return to work, should not act like a martyr 1
Coleman was away from the plant at the time of Polston's dis-
charge. He testified that Bauman, the superintendent of the plant,
had discharged Polston because the latter left his machine and was
talking, and that Polston at the time of his reinstatement admitted
having left his machine and having solicited on behalf of the Union on
company time. Polston, in his testimony, denied leaving his work to
.solicit in the plant, but admitted that at various times during the
course of the week prior to November 9 a number of employees had
stopped at his machine to converse with him about the Union, among
other things. However, he had received no complaints prior to his
discharge with regard either to leaving his machine or to talking to
employees during working hours. Nor had he ever received any com-
plaints regarding his work during the course of his employment with
the respondent, for a period longer than 2 years. There is no show-
ing of any rule, prior to his discharge, against employees leaving their
machines or talking during working hours. Moreover, it does not ap-
pear that any employee who talked to Polston during working hours
was discharged for so doing-, As hereafter appears, any rule existing
after November 10 against soliciting for union members during work-
ing hours was not impartially enforced. ' In view of the hostility
shown toward the Union by the respondent and its supervisory offi-
cials, including Bauman, as detailed below, the other circumstances
surrounding Polston's discharge and reinstatement, and Coleman's
remarks to Polston on December 12 and' 22, as noted below, we find
that Polston was discharged because of his union activity and that
'Shortly after his return to work Polston received an individual wage increase, and
thereafter the respondent granted a wage increase to all employees , effective November 27,
1939.
W. A. JONES FOUNDRY & MACHINE CO. 813
by said discharge the respondent discriminated in regard to the hire
and tenure, of his employment, thereby discouraging membership in
the Union, and thereby interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
B. Other interference, restraint, and coercion
About November 16, 1939, Martin Bryns, while at work, was asked
by his foreman Peter Otzko why he had joined the Union. Bryns
answered that the majority of the men had joined, to which Otzko re-
plied, "After you have been working here so many years, you should
be loyal to us ... You might get yourself in trouble-They might
blackball you." Otzko added that the respondent belonged to the
Metal Trades Association 2 and that Bryns "wouldn't be able to get
a job in an open shop."
Coleman had been, away from the plant for several days immedi=
ately prior to November 17, 1939. During his absence the Union had
progressed in its organizational activity and there had been consid-
erable unrest in the plant. Upon his return to the plant on November
17, after discussing the situation with Bauman and other super'visors,
Coleman asked Bauman to summon Norman Ebert, Alfred Patoux, and
Adolph Lemke, three machine-shop employees, for a confidential talk.
Bauman then called Patoux into his office and, in the presence of
Smiskol, Patoux's foreman, said to Patoux, "I hear there / is a
union going on, or, starting up here ... I want to show you some-
thing before you start a union in here. The firm is losing money."
He then gave Patoux a slip of paper with figures showing losses by
the respondent and directed Patoux, "I want you to show this to the
boys so they will know what is going on here before they take any
steps like that, so they will know the firm is losing money." Patoux
took' the slip and showed it to some of the men in the shop. He then
summoned Ebert and-Lemke and the three of them went to Coleman's
office.
Coleman asked them what was wrong and the men told him of their
complaints ,and grievances, including the discharge of Polston and
another man and the inability of employees to obtain wage increases.
The vice president inquired "why we couldn't get together without
outsiders coming in,- and settle it ourselves." Patoux replied that
there were about 70 employees in the Union who,would have to be
consulted. Thereupon, Coleman expressed surprise and said, "Has it
gone that far?"
On November 20, 1939, Coleman called the employees together 15
minutes before the lunch hour and read them a prepared statement.
2 Coleman testified that he was an officer of the Illinois Metal Trades Association.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In this statement, Coleman asserted that the respondent had been
losing money, pointed to benefits which the respondent had given to
its employees, and stated, inter alia, as follows :
If the W. A. Jones Foundry and Machine Company is to remain
in business we must. meet the competition in'our industry ! This
means that our product must be offered to others. That, of course,
means that materials and wages must be in line.
There is no question but what you and I, and by I, I mean the
management can work things out satisfactorily together. I want
you to feel perfectly free to come to me with any problem you
may have regardless whether it is personal or has to do with your
work. In this way only can we avoid misunderstandings.
You undoubtedly know your rights under the laws covering em-
ployment. If, however, there is any matter which you do not
understand I will be only too glad to explain it., I want you to
be sure to know that I will, at all times, be absolutely fair and
that nothing which is said will be held against anyone?'
After all most of you and I have worked together for a good
many years and I consider you as MY friends and I want to
always have you feel that I am YOUR friend. LETS WORK
THINGS OUT TOGETHER !
On November 28 Coleman again assembled the employees together
and read to them a second prepared statement. In this latter state-
ment Coleman reported a conference he had had with a business agent
of the Union a week previously, relative to the reinstatement of two
men and the signing of a contract with the Union. The statement
then continued as follows :
I want to explain to you that at no place does the National' Labor
Relations Act ... -require an employer to enter into a contract
either written or verbal with any labor organization. While the
company'will, of course,, live up to the letter of the law we have no
intention of entering into a contract which may, directly or in-
directly, force you into a membership against your will ! 3
Coleman then informed the, employees that the previous evening six
employees claiming to represent the Machinists and Foundrymen's La-
bor Unions of W. A. Jones Foundry & Machine Company ,4 herein
referred to as the M. & F., called on him to request wage adjustments
and a revision in the premium system in the machine shop; and that
8 There is nothing in the record to indicate that the Union had asked for a closed-shop
contract.
A The exact date of the formation of this organization does not appear.
W. A. JONES FOUNDRY & MACHINE CO. 815
he had replied that a job-rating survey had been started and that the
premium system would be revised. Never before, at least in the mem-
ory of Polston and Ebert, had the respondent called its employees
together to address them in this manner. After concluding his No-
vember 28 statements to the employees, Coleman asked if there were
any questions. Harvey Hess, a union committeeman, inquired, "if
the shop went American Federation of Labor, would it hurt the com-
pany?" According to Polston, who,was present, Coleman replied,
in substance, that in that event the respondent would eventually cease
operations. Hess them stated that he for one would not want to hurt
W. A. Jones. Ebert, who was also present, corroborated Polston's
testimony in this regard. Coleman, while denying having made such
a statement, admitted having responded on this occasion that it might
not hurt the respondent at first, but it would be "pretty bad over a
period of time." In view of his admission and the entire record, we
find that he made the statement substantially as testified to byPolston.
The next day Hess was called into the office by Coleman, who wanted
to know what his grievances were and, added that Warren Jones 5 was
hurt that he "should join the, union without first coining to him and
explaining my grievances." As a result of this conversation, Hess re-
considered the matter of his participation in union activity and on
the following day posted a notice on-the respondent's bulletin board
stating that he had a son who was born crippled, that Warren Jones
had offered to give $5,000 for medical aid for the boy, and that, par-
tially because of Jones, his son had_ received hospital aid and was,
now almost normal ; that he felt that he owed Jones an apology ; that
he had taken part in organizational work without first consulting
Jones, and would refrain from further activities in the Union. After
posting this notice, Hess called it to the attention of other employees.
Coleman saw Hess after the notice had been posted and told Hess
that "he thought that was a courageous thing to do."
About December 12 Coleman asked Polston, who continued his
union activities after his reinstatement, whether he was satisfied with
the wage increase which the employees, had received, and stated,
"We'll forget all about the trouble you caused. Just be a good
fellow and we'll stick by you. There will be more wages coming
later, more money coming later." About December 22 Coleman
asked Polston why he was "pushing the union" and remarked, "I
really think it will do you more harm than good."
Shortly after the Union commenced organizational activities, simi-
lar activities were begun on behalf of the M. & F. There is con-
siderable evidence to show that if the respondent and its officers did
6 Warren Jones was the principal stockholder of the respondent.
I
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not initiate these activities on behalf of the M. & F., it at least ac-
tively encouraged them. , On about November 22 Ebert was engaged
in conversation with his foreman, Smiskol, who, while making some
disparaging remarks about unions in general, suggested, "Why not.
have' a company union?" Throughout the latter part of November
and the early part of December union members were continually warned
not to engage in organizational activities on company time. About
the time of Coleman's second speech to the employees, Gora, an ac-
tive union employee, was warned by both Bauman and Coleman not
to organize on - company time. On the same day Gora's foreman,
Cleland, approached him and told him that he "shouldn't `get into it
too deep; that he [Cleland] could do . . [Gora] a lot of good." , At
the same time activities on behalf of the M. & F. were openly per-
mitted and on occasion encouraged in the plant on company time.
Protests by union members against the respondent's discrimination in
favor of the M. & F. proved unavailing.
It is clear from the evidence that from the inception of union
activity in the plan in the fall of ' 1939, the respondent immediately
embarked upon a course of conduct designed to prevent and defeat'
the union activity of its employees, and that these activities of the
respondent discouraged membership in and caused defections from
the Union. Coleman, the only witness who testified for the respond-
ent, either admitted or failed to deny most of the facts set out above.
In his testimony,-he admitted that the "unrest in the shop" consist-
ing of various grievances of employees which led to their self-organ-
ization in the Union, caused the respondent immediately to place
in effect a job-rating system which resulted in the general wage in-
crease. At the hearing he expressed the fear that if the Union re-
ceived a majority, it would result adversely to the respondent's
-business. Prior to the advent of the Union, Polston and other em-
ployees had attempted without success to secure wage increases from
the respondent. Under all the circumstances, we find that the re-
spondent granted the individual wage increase to Polston, and the
general wage increase to all employees, in November 1939, for the
purpose of-defeating the self-organization of its employees.'
Coleman as well as Bauman, the superintendent, and the foreman,
by talking to the employees individually and generally, by the dis-
charge of Polston, by encouragement of the M. & F., by wage increases,
and by other acts deliberately and carefully undertook to convince
and succeeded in convincing the respondent's employees that the re-
9 See M. H. Ratzwoller Co v. N. L. R B, 114 F (2d) 432 (C. C. A. 7), enf'g as modified,
Matter of the M H. Ritzwoller Company and Coopers' Internattonal Union of North America,
Local No. 28, 15 N. L. R. B. 15; Southern Colorado Power Co. v. N L. R. B, 111 F. (2d)
539 (C. C 'A 10), enf'g Matter of Southern Colorado Power Co and H H Stewart and
1 L. Watkins, Indivtduals, 13 N L. R B 699
NV. A. JONES FOUNDRY & MACHINE CO. 817
spondent'did not favor organization by the Union; and that if the
Union was successful in its drive in obtaining a majority and secured
a contract, it would react unfavorably to the respondent's business.
The two statements read by Coleman to the employees on November
20 and 28, 1939, were intended to and did convey to the employees
of the respondent, the latter's antagonism to outside union activity
in the plant. By the November 20 statement Coleman impliedly in-
dicated to the employees that they and the respondent could "work
things out together" without resort to the Union as a collective bar-
gaining representative, and attempted to discourage possible efforts
of employees to gain wage increases through self-organization and
collective bargaining. In addition, the later statement contained
gratuitous and misleading statements relative to the Act and the
protection it afforded the employees, and, as has been stated, in sub-
stance, in many Board cases, had "the purpose of anticipating and
denying, to employees a possible advantage to be derived from col-
lective bargaining negotiations." 7 The posting of the notice by Hess,
which resulted from his conversation with Coleman on the previous
day and which Coleman' expressly approved thereafter, also neces-
sarily had the effect of discouraging membership in the Union.
In its brief the respondent contends that Coleman, after his return
to ' the plant on November 17, effectively disavowed the anti-union
activities of the respondent's supervisory employees. However, the
evidence is to the contrary, since Coleman, upon his return, himself
engaged in the course of anti-union conduct summarized above.
We find that the respondent, by the anti-union statements and
activities of Superintendent Bauman, and Foremen.Otzko, Smiskol,
and Cleland; by the individual talks and general statements to the
employees of Vice-President and Secretary Coleman; by the latter's
causing and, approving the posting of Hess' notice; by. the special
wage increase to Polston, and the general increase in wages instituted
in November 1939; and by the encouragement given the M. & F., in-
terfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed by Section 7 of the At.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent as set forth in Section III above,
occurring in connection with the operations of the respondent de'
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
' Matter of Blue Bell-Globe Manufacturing Company and Amalgamated Clothing Workers
of America, 24 N L R B 126: see also, Matter of Roberti Brothers, Inc and Furniture
Workers Union, Local 1561, 8 N. L. R. B 925; Matter of Blossom, Products Corporation
and International Ladies' Garment Workers' Union, 20 N L R B 335 1
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD /
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices , tine shall require the respondent to cease and desist
from such practices , and to take certain affirmative action which
-we find necessary to effectuate the policies of the Act . We have
found that William T. Polston was discharged because he joined
and was active in the Machinists Union. - Since, however, a week
and a half after the discharge , Polston was reinstated to his former
position and paid for the time lost ins- full, we shall make no pro-
vision as to reinstatement or btick pay.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case , the Board makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists , District No. 8, affiliated
with the American Federation of Labor, is a labor organization
within the meaning of Section 2 ( 5) of the Act.
2. 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.
3. By discriminating in regard to the hire and tenure of employ-
ment of William T. Polston, thereby discouraging membership in
International Association of Machinists , District , No. 8, affiliated
with the American Federation of Labor, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of
Section 8 (3) 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.
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 W. A.
Jones Foundry and Machine Co., a corporation, Chicago, Illinois,
and its officers , agents , successors , and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in International Association of Ma-
chinists , District No. 8, affiliated with the American Federation of
Labor, or any other labor organization of its employees , by dis-
W. A. JONES FOUNDRY & MACHINE CO. 819
criminating in regard to the hire and tenure of employment or any
terms or conditions of employment of its employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights 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) Post immediately in conspicuous places at its plant and main-
tain for a period of at least sixty (60) consecutive days from the
date of posting, notices to its employees stating (1) that the respond-
ent will not engage in the conduct from which it is ordered to cease
and desist in paragraphs 1 (a) and (b) of this Order; and (2) that
the respondent's employees are free to become or to remain members
of International Association of Machinists, District No. 8, affiliated
with the American Federation of Labor, and that the respondent
will not discriminate against any employee because of membership
in or activity on behalf of that organization;
(b) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order what
steps the respondent has taken to comply herewith.
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