White Metal Rolling and Stamping Corp.

National Labor Relations Board - Board Decisions

Jun 18, 1962

137 N.L.R.B. 678 (N.L.R.B. 1962)

678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten any of our employees with discharges, layoffs, and/or
the elimination of overtime work because or in the event the above-named
labor organization should become their collective -bargaining representative.
WE WILL NOT threaten any of our employees with discharge in the event they
continue to engage in activity in behalf of said labor organization.
All of our employees are free to become or remain members of said or any other
labor organization or to refrain from becoming or remaining members thereof.
J. WEINGARTEN, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for.60 .days from the .date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office at 650 M
and M Building , 1 Main Street , Houston , Texas, Telephone Number, Capitol 2-7201,
Extension 041, if they have any question concerning this notice or compliance with
its provisions.
Whitelight Products Division of White Metal Rolling and Stamp-
ing Corp . and United Electrical , Radio and Machine Workers
of America , Local 218. Case No. 1-CA-3266. June 18, 1962
SUPPLEMENTAL DECISION AND ORDER
On June 27, 1961, the Board issued its Decision and Order in the
above-entitled case in which it found that Whitelight Products Divi-
sion of White Metal Rolling and Stamping Corp., herein called the
Respondent, violated Section 8 (a) (1), (3), and (5) of the Act' The
Board found, inter alia, that the Respondent laid off four employees
because of union activities and not because of a machine breakdown
which led to a production curtailment.
Thereafter, the Board's findings and conclusions were considered
by the United States Court of Appeals for the First Circuit upon the
Board's petition for enforcement of its order. On. January 15, 1962,
..the court handed down its opinion, remanding so much of the case as
related to the layoff of the four employees 2 The court found that the
Board's finding that production did not warrant any layoffs is not
only "without support, but is totally contradicted." However, the
court remanded the case to the Board so that it might consider "whether
the layoffs were nevertheless an unfair labor practice for some other
reasons."
The Board 3 has reexamined the record in the light of the court's
opinion and finds that the evidence establishes that the particular lay-
offs which occurred on August 18, 1960, were motivated by discrimina-
1131 NLRB 1323.
a N.L.R .B. v. Whitelight Products Division of White Rolling f Stamping Corporation,
298 F. 2d 12, cert. denied 369 U.S. 887.
8 Pursuant to the provision of Section 3(b) of the National Labor , Relations Act, the
Board has delegated Its powers in connection with this case to a three -member panel
[ Chairman McCulloch and Members Fanning and Brown).
137 NLRB No. 82.
WHITELIGHT PRODUCTS DIVISION, ETC. 679
tort' considerations despite economic justification for some layoffs at
this time. Respondent, through its plant manager, Records, testified
that the employees were selected for layoff on a departmental seniority
basis, i.e., that the least senior man in each department was laid off.
A close examination of Records' testimony and the seniority list pre-
pared from the Respondent's own records by Respondent's counsel
reveals that this contention is not supported by the record.
Records testified that Bernard Smith was laid off from the welded
ladder department into which he had been transferred the month be-
fore the events which required the layoff. Smith, who had been
working for Respondent since April 18, 1960, was therefore trans-
ferred into the welded ladder department sometime between July 15
and 18, 1960. However, at least three other men in that department
had less seniority : Delvin Shafer, a new employee, began working for
Respondent in that particular department on July 19, 1960; Francis
Pelton began working on August 14, 1960 (the very week that long-
time employee Smith was laid off) ; and Wilfred LaDuke, who was
partly in the welded ladder department and partly in the industrial
ladder department, began working on August 4, 1960.
Clinton Pecor, who began working for Respondent on August 2,
1960, was laid off from the bolted ladder department. However, the
record reveals that Records rehired another employee, Hitchcock, for
that department on September 6, 1960, while the economic conditions
which necessitated some layoff were still in existence. Hitchcock had
originally been hired August 1, 1960, and left on August 15, 1960. We
are of the opinion, upon the sum total of these facts, that eco-
nomic necessity was not the reason for the layoff in the bolted ladder
department.
Maurice Brodeur, who began working for Respondent on June 22,
1960, and was laid off from the machine shop, was admittedly not the
least senior employee in that department. Respondent justifies this
departure from seniority on the basis that the least senior employee
was not much more than "an apprentice" or "errand boy."
On the basis of the foregoing, we find that the Respondent's own
evidence disproves its contention that seniority on a departmental basis
was the criterion which the Respondent used in determining which
employees should be laid off. Considering that fact in the light of the
Section 8 (a) (1),4 (3), and (5) violations which the court has enforced,
we find that Respondent chose three men because of their membership
on the employees' committee and the fourth man because he was al-
* we note, particularly, that Foreman Lemp told one employee, on the day following
the layoff, that "I hate to fire anybody, but when I get the word from the bigger boss,
I got to do it. You see what happened here yesterday" He also pointed out to the
employee that there were "seven or eight people out on the street now that would vote
for the Union."
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ready a member of the particular union before he, and it, came to
Respondent's plant.-'
Accordingly, the Board reaffirms its original Order as qualified by
the decision herein.
s As mentioned by the court , if any one of these four men might have been laid off for
economic reasons during the period of production curtailment , he is not entitled to full
backpay beyond such time. However, this does not diminish the finding of discriminatory
motivation in selection for layoff on August 18 , 1960. The matter of limiting the amount
of backpay because of such subsequent unavailability of a position for the particular
discriminatee for a reason unconnected with the discrimination is a problem for com-
pliance proceedings.
Mason Au & Magenheimer Confectionery Manufacturing Com-
pany, Inc. and William Neville and Local 30, 30A, 30B and 30C,
International Union of Operating Engineers , AFL-CIO, Party
in Interest . Case No. 2-CA-7791-5. June 18, 1962
SUPPLEMENTAL DECISION AND ORDER
On June 6, 1961, a hearing was held before Trial Examiner C. W.
Whittemore in a consolidated proceeding 1 which included the above-
entitled case. At the hearing, the Trial Examiner granted Respond-
ent's motion to dismiss on the ground that the averments in the
complaint failed to allege a cause of action under Section 8(a) (2) of
the Act. On January 15,1962, the Board issued its Decision and Order
in this consolidated proceeding finding that the allegations of the
complaints, if proven, may be sufficient to sustain a finding of a viola-
tion of Section 8 (a) (2) of the Act. The Board also ordered that the
cases be severed and remanded to the Regional Director for the Second
Region for the purpose of arranging separate hearings in the previ-
ously consolidated cases 2
On January 25, 1962, the General Counsel issued an amended com-
plaint in the above-entitled case, again alleging that Respondent, by
and through its chief engineer, John J. Moran, was participating in
the internal affairs of Locals 30, 30A, 30B, and 30C, International
Union of Operating Engineers, AFL-CIO, and that Respondent's
conduct constituted a violation of Section 8(a) (1) and (2) of the
Act. On April 4 and 5, 1962, a hearing was held before Trial Ex-
aminer Owsley Vose. At the conclusion of the presentation of General
Counsel's case, the Trial Examiner granted Respondent's motion to
dismiss on the ground that the General Counsel had failed to estab-
lish a prima facie case. Thereafter, the General Counsel petitioned
The other parties named as Respondents in this consolidated proceeding included
Banner Yarn Dyeing Corporation , National Gypsum Company, Jos. Schlitz Brewing Com-
pany, Stahl -Meyer, Inc , and Rockwood Chocolate Co., Inc.
2 135 NLRB 298.
137 NLRB No. 83.