Whitin Machine Works

National Labor Relations Board - Board Decisions

Jun 24, 1941

32 N.L.R.B. 1123 (N.L.R.B. 1941)

In the Matter of WHITIN MACHINE WORKS and ALFRED LAFERRIERE
Case No. C-1676.-Decided June 24, 1941
Jurisdiction : textile machinery manufacturing industry.
Unfair Labor Practices
Discrimznation-Filing Charges Under Act: charges alleging discriminatory lay-
off of an employee and a refusal to reemploy him because he had filed charges
with the Board, dismissed.
Practice and Procedure : complaint, dismissed.
Mr. Albert J. Hoban, for the Board.
Mr. Jay Clark, Jr. of Worcester, Mass., for the respondent.
Mr. Frank J. McGrail, of Worcester, Mass., for Laferriere and the
Union. R `
Mr. Edward Scheunemann, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On charges and amended charges duly filed by Alfred Laferriere
of East Douglas, Massachusetts, the National Labor Relations Board,
herein called the Board, by the Regional Director for the First Region
(Boston, Massachusetts), issued its complaint dated July 16, 1940,
against Whitin Machine Works, Whitinsville, Massachusetts, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1), (3), and (4) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint, accompanied by notice of hearing,
were duly served upon the respondent and Laferriere.
The complaint alleged in substance that the respondent (1) on
or about July 1, 1937, and thereafter, through its officers, agents, and
employees made statements to discourage its employees from becom-
ing members of labor organizations; (2) on or about February 1,
1939, discharged and thereafter refused to reinstate Alfred Laferriere
because he was active on behalf of a labor organization known as the
International Moulders Union of North America (A. F. of L.), herein
32 N. L. R, B., No. 175.
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448692-42-vol. 32-72
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the Union; and (3) on or about August 8, 1939 , and at all times
thereafter refused to reinstate said Alfred Laferriere because on
June 19,1939 , he had filed charges with the Board. On July 26, 1940,
the respondent filed its answer to the complaint in which it denied
that it had engaged in , and set forth certain affirmative defenses to,
the alleged unfair labor practices.
Pursuant to notice , a hearing was held from July 29 to August 1,
1940, inclusive , in Whitinsville , Massachusetts , before C . W. Whitte-
more, the Trial Examiner duly designated by the Board . At the open-
ing of the hearing, the Union moved to intervene and the Trial
Examiner granted the motion. The Board , the respondent , Laferriere,
and the Union , represented by counsel , participated in the hearing and
were afforded full opportunity to be heard , to examine , and cross-
examine witnesses , and to introduce evidence bearing on the issues.
During the course of the hearing the Trial Examiner made a number
of rulings on motions and on objections to the admission of evidence.
We have reviewed the rulings of the Trial Examiner and find that no
prejudicial errors were committed. The rulings are hereby affirmed.
On August 15, 1940, the respondent , and on August 16, 1940, Laferriere
and the Union, filed briefs with the Trial Examiner.
On September 20, 1940, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties. He found
that the respondent had not engaged in unfair labor practices affecting
commerce within the meaning of Section 8 (1), (3), and (4) and
Section 2 ( 6) and (7) of the Act and recommended that the complaint
be dismissed. On October 10, 1940, Laferriere , and on October 11, the
Union, filed exceptions to the Intermediate Report.
The Board has considered the exceptions and save as they are con-
sistent 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
1. THE RESPONDENT AND ITS BUSINESS
The respondent , a Massachusetts corporation with its principal office
and place of business in Whitinsville , Massachusetts, is engaged in the
manufacture , sale, and distribution' of textile machines . It maintains
branch offices at Atlanta, Georgia , and Charlotte , North Carolina, and
at the latter city operates a textile machinery repair shop . The re-
spondent employs approximately 1,500 persons in its Whitinsville
plant, the only plant involved in the present proceedings.
The respondent purchases annually raw materials amounting to
more than 100,000 tons and obtains in excess of 80 per cent of such
WHITIN MACHINE WORKS 1125
raw materials from places outside the Commonwealth of Massachu-
setts. The respondent manufactures annually machinery valued in
excess of $1,000,000 and it ships more than 80 per cent in value of such
machinery to points outside the Commonwealth of Massachusetts.
The respondent admits that it is engaged in commerce within the mean-
ing of the Act.
H. THE ORGANIZATION INVOLVED
International Moulders Union of North America, Local No. 5, is a
labor organization affiliated with the American Federation of Labor.
It admits to membership employees of the respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The respondent's foundry employees, numbering from 250 to 300,
are not and never have been organized, although crane moulder
Dumas, employed "off and on" for 20 years, has been president of
the union local for the past 8 years, and the respondent, upon Dumas'
advice, has occasionally hired union moulders. No evidence was
adduced at the hearing, other than with respect to Alfred Laferriere,
to show that the respondent has ever interfered with its employees'
right to organize as guaranteed by the Act.
Laferriere was employed by the respondent, in its foundry depart-
ment, from 1924 to 1935. Early in 1935 he quit voluntarily. In
December of the same year the respondent rehired him, and employed
him continuously thereafter until February 1939. On February 2,
1939, the respondent terminated his employment. The complaint
alleges that the lay-off was discriminatory and caused by Laferriere's
activity in behalf of the Union, and that the respondent thereafter
refused to reinstate him because he had filed charges with the Regional
Office of the Board. The respondent alleges that lack of work occa-
sioned both the lay-off and the refusal to reinstate.
Concerning events leading up to February 2, 1939, much of the
testimony is in dispute. Laferriere testified, in substance : (1) that
some time in 1936 he had asked fellow employees to join the Union;
that thereafter he was accused by Superintendent Moffett of "running
around the foundry trying to, form a union, getting a bunch of men
to attend some meeting by an agitator," and that he then informed
the superintendent that he would not "be bothered by that from me,
any more"; (2) that a few weeks before Moffett's retirement in 1937
he, Laferriere, talked with other employees concerning a union meet-
ing to be held in Worcester, Massachusetts, and that thereafter
'Worcester, where the union local has its headquarters , is about 16 miles from
Whitinsville.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moffett told him "he thought he would not be bothered any more,
have any more trouble with us from unionism" and further advised
him "instead of trying to cause trouble, if you are not satisfied, why
don't you quit!"; (3) that starting in the fall of 1937 he "contacted
some men to see if they would join the union" and distributed three
or four copies of the Union's constitution, that in the latter part of
January 1939, he told Foundry Foreman Veau that the Union might
send a man to organize the foundry, that a day or two following this
conversation with Veau he was informed by Superintendent Meader
that he might be laid off because. work was slack, and that a week
later he was, in fact, laid off.
Moffett, retired in 1937, was not called as a witness in the present
proceedings. Alphonse LaFrance, who was employed by the respond-
ent for 'a few months in 1935 and 1936 and who worked "next- to"
Laferriere, was called by the Board to testify concerning Moffett's
statements. The credible substance of his testimony, which required
the services of an interpreter, is that he heard Moffett tell Laferriere
that if he wanted to keep his job lie should stay on his own floor, but
that he did not hear Moffett say anything about the Union.
Laferriere was not a member of the Union in 1937 at the time
Moffett had allegedly disparaged unions and advised him to quit.
Dumas, president of the Union, testified that he never heard any of
the respondent's officials make disparaging remarks concerning unions
or union membership. Laferriere and other employees of the re-
spondent attended a union meeting in Worcester in 1937 and the
respondent took no action against them.
In view of the finding of the Trial Examiner, who had an oppor-
tunity to observe the witnesses-and their demeanor, that Laferriere's
testimony was generally unreliable, and upon the entire record, we
find that the record does not support that part of the complaint which
alleges that the respondent, through Moffett, made statements to dis-
courage its employees from becoming members of labor organizations.'
In the fall of 1938, according to his testimony, Laferriere talked
with a number of employees about joining the Union and distributed a
few' copies of the Union's constitution. There is no evidence that as
a result of this activity he was reprimanded or threatened with lay-
off either by Meader, then superintendent, or,by Foreman Veau. He
further testified that about a week before his' lay-off in February
1939, he told Veau that the Union was considering sending a man
down to organize' the foundry. A day or two following this con-
versation Meader informed him that slack work might necessitate his
lay-off. Laferriere testified, and we find, that Meader "said he wasn't
sure whether he would have to lay me off and he was kind of telling
me ahead so I could find some plans." On February 2, 1939, Lafer-
WHITLN MACHINE WORKS 1127
riere was laid off. Meader told him that unless business changed,
others would have to go, and that he "had to figure on favoring town
help," and Laferriere lived out of town. Twice between the date of
his lay-off and August 8, 1939, Laferriere applied to Meader for
work, either in his customary position as a side-floor moulder or some
other foundry job. On each occasion, according to Laferriere's testi-
mony, Meader told him that business did not warrant his rehiring.
Meader, however, gave him a written recommendation and suggested
that he seek work at Worcester.
Considering Laferriere's testimony alone, concerning his lay-off,
only by inference could it be found that his employment was termin-
ated (1) because he had told Veau of an organizer's probable visit
to the plant and (2) because of the remote fact that he had solicited
employees to join a'union. To draw this inference we would have to
ignore completely (1) Meader's denial that he knew anything about
Laferriere's union activity and (2) the employment records produced
by the respondent.
' Management officials testified, and Laferriere admitted, that he
knew that the respondent has for many years adhered to a general
policy of giving employment preference to Whitinsville residents.
The respondent owns about 1,000 houses and tenements in Whitins-
ville, which has a population of approximately 6,000,2 and, as far as
possible, leases its homes to skilled employees. The respondent em-
ploys a total of about 1,500 persons. Laferriere has been a resident
of East Douglas, 4 or 5 miles distant from Whitinsville, for 15 years.
Ha testified that he did not live in Whitinsville because of the waiting
list for tenancy in company-owned houses.
Foundry moulders at the respondent's plant fall within two general
classifications: those'who work by hand at a bench, "floor," or crane,
and those who make moulds by use of machines. Floor moulders are
termed "side floor moulders.", Laferriere is a skilled side-floor
moulder. Subsequent to 1935 the respondent acquired a number of
machines, and their operation reduced the number of moulds which
otherwise would have been made by hand. The respondent's records
show that 36 side-floor moulders were employed during 1937. During
that year 17 of this total were let go, because of lack of work or other
reasons. All 17 were out-of-town residents. Laferriere worked
throughout the year. In 1938, when only 19 side-floor moulders were
employed, Laferriere was one of three who did not live in Whitins-
ville. At the time of his lay-off in February 1939, Laferriere was
the only non-resident side-floor moulder remaining on the pay roll.
' whitinsville is a part of the township of Northbridge , which has a population of
about 10,000.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
•^''In view of the respondent's records which .fully substantiate its
contention that Laferriere was laid off because of lack of work, and
the, findings of the Trial Examiner;' we find that the record does not
support the allegation in the complaint.that Laferriere was laid off
because of his activity on behalf of the Union.
The complaint- alleges, and the answer. denies, that:the respondent
refused to reemploy Laferriere because he' had .filed charges against
the respondent with the Board. ' . .1 • • , . .
Laferriere filed charges on June 19,.1939, alleging-that he had been
discharged; in violation of. Section 8 (3) of the Act. He testified, in
substance ' (1) that on or about August 6' he, called at the company
office, told' employment manager Morton that he had filed charges
with the Board, and was referred by Norton to Shop Superintendent
Clary;' (2) that Clary first said to him; "You are the man that Mr.
Moffett was down to see one morning, a few years, back . . -about
unionism, about organizing the men or something,", that when, he
admitted this identification Clary asked "what I would expect if the
company would take me back" and "suppose you go back and start
to organize, the same as you have?'??, and that he had replied,; 'if my
conditions are the same as before ... let those that want to organize
the: foundry, organize it"; and .(3) that Clary then told him that
Norton would give him "the answer" in 2 days., Clary denied that
he suggested, or that Laferriere agreed, that the employee might be
taken back if he dropped his organizational work. Clary admitted that
during the conversation with the employee, "it came to my mind that
we'had some trouble with a man named Laferriere several years ago,"
and that he had then asked "if he was -the Mr. Laferriere who' had
caused: a lot of trouble by interfering, and not,attending to his busi-
ness in the' foundry some years ago and he said he was." The record
clearly establishes (1) that some years ago, before .Moffett's retire-
ment, the superintendent had reprimanded Laferriere for not staying
at his work; (2), that in January 1935, Laferriere quit instead of.
performing 'work assigned to him and that 'Moffett had then recom-
mended against,his reemployment,. but that he had been, in fact, re-.
hired in December of the same.year. In-view of.the Trial Examiner's
finding. that Laferriere was not a credible' witness, and upon the entire
record, we do not, credit Laferriere's testimony concerning his inter-,
view with'Clary.3
On August .8, 1939, 'Norton told Laferriere that there was, no, work
available and that he would,be called when needed. Laferriere there-
In order to accept Laferriere 's testimony in this instance , we would have to' believe
that Clary proposed to Laferriere an agreement in violation of the Act which" would
require Laferriere to' cease organizing even though (nary knew at the time that Laferriere
had already filed charges with the Board , and that thereafter Clary failed to carry out
the agreement even though Laferriere had ceased organizing.
WHITIN MACHINE WORKS 1129
upon visited Meader's home and, according to his testimony, asked
the superintendent "if he knew what the answer was from the shop,"
and was told that "he thought he knew, that it wasn't for him to say."
Laferriere further testified that Meader "told me he didn't know any-
thing about me trying to organize at the time I was laid off ... that
I was trying to pull a bluff to get my job back," and that since he
had taken the case before the Board, "he wouldn't consider taking me
back under any circumstances." Meader testified, and we find, as did
the Trial Examiner, that he told Laferriere in substance that he had
done a very foolish thing in filing charges "because while he had the
privileges of making such charge, it was my personal reaction that
such charge could and would be proven to have no foundation. I
told him that I was very much disappointed in him."
The respondent's records show that since Laferriere's lay-off, and
until the hearing, no out-of-town moulder has been hired except for
three brief periods of temporary employment. Meader's test-1
mony is undenied that, before hiring three moulders to perform a
rush job early in 1940, he made inquiry in Worcester and learned
that Laferriere was working steadily. He testified further, and there
is no evidence to the contrary, that he followed the general policy
observed in nearby foundries and did not attempt to hire Laferriere
away from a steady job to fill a temporary vacancy. At the hearing
Meader testified that it has been, and is, his continuing intention to
reemploy Laferriere whenever a sufficient quantity of work creates
an opportunity. Nothing in the record shows that, since February
1939, there has been such an opportunity.
We find, upon the entire record and in accord with the findings of
the Trial Examiner, that the respondent did not refuse to reemploy
Laferriere on or after August 8, 1939, because he had filed charges
with the Board.
We find that the respondent did not discriminate in regard to the
hire and tenure and terms and conditions of employment of Alfred
Laferriere, thereby discouraging membership in a labor organiza-.
tion, and did not interfere with, restrain, or coerce its employees in
the exercise of their rights under Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CoNOLusIONs OF LAW
1. The operations of the respondent occur in commerce within the
meaning of Section 2 (6) of the Act.
2. International Moulders Union of North America, Local No. 5,
is a labor organization within the meaning of Section 2 (5) of the
Act.
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The respondent has not discriminated against Alfred Laferriere
with respect to his hire or tenure or terms or conditions of employ-
ment within the meaning of Section 8 (3) or (4) of the Act.
4. The respondent has not interfered with, restrained, or coerced
its employees in the exercise of rights guaranteed in Section 7 of the
Act within the meaning of Section 8 (1) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the complaint against the respondent, Whitin Machine Works,
Whitinsville, Massachusetts, be, and it hereby is, dismissed.