Wooster Brass Co.

National Labor Relations Board - Board Decisions

Mar 30, 1949

82 N.L.R.B. 514 (N.L.R.B. 1949)

III the Matter Of WOOSTER BRASS COMPANY and UNITED AUTOMOBILE
WORKERS OF AMERICA (A. F. L.)
Case No. 8-C-2064.-Decided March 30, 1949
DECISION
AND
ORDER
On January 28, 1949, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in unfair labor practices, and rec-
ommending that the complaint filed herein against the Respondent
be dismissed in its entirety. Thereafter, the General Counsel and
the Union filed exceptions and supporting briefs to the Intermediate
Report, and the Respondent filed a brief in support of the Interme-
diate Report.
Pursuant to the provisions of Section 3 (b) of the Act, as amended,
the National Labor Relations Board has delegated its powers in con-
nection with this proceeding to a three-man panel consisting of the
undersigned Board Members.*
The Board has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions,) and recommendations of the Trial
Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint issued herein
against the Respondent, Wooster Brass Company, Wooster, Ohio, be,
and it hereby is, dismissed.
* Chairman Herzog and Members Houston and Gray.
I In agreeing with the Trial Examiner 's conclusion that the discharge of employee
Goodman was not violative of the Act , we do not rely on the fact that the Respondent
did not discharge other employees who were active in the Union and who testified against
the Respondent in Case No . 8-C-1880. Matter of Stewart Warner Corporation, 55
N. L. R. B. 593.
82 N. L. R. B., No. 62.
514
WOOSTER BRASS COMPANY
INTERMEDIATE REPORT
515
Raney Donovan, Esq, for the Board.
Dwight A. Blackmore, Esq., of Greenwich, Ohio, and K. E. Hoover, Esq., of
Wooster, Ohio, for the Respondent.
Mr. Lloyd N. Loveland, of Wooster, Ohio, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Automobile Workers of America
(A. F. L.), herein called the Union, the National Labor Relations Board, herein
called the Board, by its Regional Director for the Eighth Region (Cleveland,
Ohio), issued its complaint dated June 10, 1947, against Wooster Brass Company,
herein called the Respondent, alleging that the Respondent had engaged in and
was engaging in unfair labor practices within the meaning of Section 8 (1), (3),
and (4) and Section 2 (6) and (7) of the National Labor Relations Act, herein
called the Act. Copies of the complaint together with notices of hearing thereon,
were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges that the Re-
spondent on or about September 26, 1946, discharged Howard Goodman, and at
all times since that date has refused and does now refuse to reinstate him to
his employment, for the reason that he had on August 6, and 10, 1946, given
testimony in a proceeding known as "Matter of Wooster Brass Company and
United Automobile Workers of America, Local Union No. 813 (A. F. L.) case
No. 8-C-1880," and because he joined and assisted the Union and engaged in other
concerted activities with his coworkers for the purposes of collective bargaining
and other mutual aid and protection.
-Th? Respondent in its answer, duly filed June 20, 1947, admitted certain juris-
dictional allegations. The answer averred, however, that it discharged Howard
Goodman, for good and sufficient causes. The answer denied that the Respondent
denied the commission of any of the alleged unfair labor practices.
Pursuant to notice, a hearing was held at Wooster, Ohio, on July 8, and 9, 1947,
before the undersigned, James A. Shaw, the Trial Examiner duly designated by
the Chief Trial Examiner. The Board and the Respondent were represented by
counsel and the Union by a representative. All parties participated in the hear-
ing. Full opportunity to he 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-in-chief, counsel for the Respondent moved that the com-
plaint be dismissed for lack of proof. The motion was denied. Counsel for the
Respondent at the close of the hearing again moved to dismiss the complaint for
the same reason. Ruling upon the motion was reserved, it is disposed of by the
finding of fact, conclusions of law, and recommendations embodied in this report.
Counsel for the Board then moved to conform the pleadings to the proof as
regards minor matters, such as names, dates, and the like. The motion was
granted without objection. Counsel for the Board also moved that the Inter-
mediate Report in the instant case be deferred until the Board issued its Decision
and Order in the "Matter of the Wooster Brass Company and United Automobile
Workers of America, Local No. 813, (A. F. L) Case No 8-C-1880." The under-
signed refused to rule on the motion, and requested that counsel for the Board
file a formal motion in this regard with the Board in Washington, D. C. There-
after he filed a motion' with the Board to consolidate Case No. 8-C-1880 and the
' An examination of the formal file in the instant case does not contain the above
tion. However, the undersigned received a copy of same about 2 weeks after the
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instant case. Pending the disposition of the motion to consolidate, the under-
signed withheld the issuance of an Intermediate Report in the instant case. On
December 31, 1948, the Board decided Case No. 8-0-1880 without passing upon
the motion to consolidate. All parties were given an opportunity to argue orally
before the undersigned. The parties did not avail themselves of this opportunity.
Briefs have been received from counsel for the Board and for counsel for the
Respondent.
From his observation of the witnesses and upon the entire record in the case,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation having its principal place of
business in Wooster, Ohio, where it is engaged in the manufacture, sale, and dis-
tribution of fire department and soda fountain equipment. During the year 1946,
it purchased approximately $50,000 worth of raw materials, from points outside
the State of Ohio. During the same period the Respondent shipped to points
located outside the State of Ohio finished products valued in excess of $200,000.
The Respondent concedes it is engaged in commerce, within the meaning of the
Act, and the undersigned so finds.
II. THE ORGANIZATION INVOLVED
United Automobile Workers of America (A. F. L.) is a labor organization
admitting to membership employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Howard Goodman worked for the Akron Brass Company, Wooster, Ohio, as a
machinist from 1920 to 1942, and for the Respondent from some time in the later
year to September 26, 1946, when he was discharged. The Akron Brass
Company was formerly owned and operated by John C. Schellin, the principal
stockholder and president of the Respondent herein.
The Union started its organizational drive among the Respondent's employees
in April, 1943. Goodman joined the Union and immediately became very active
in its behalf. At the time of the hearing in Case No. 8-C-1880, he was chairman
of the grievance committee in the Respondent's plant, and president of Amalga-
mated Local Union, No. 813, the membership of which included the employees of
the Respondent together with the employees in two other plants located in
Wooster, Ohio. In addition to Goodman, the following employees of the Respiond-
ent were also very active on behalf of the Union, to wit : Scott Corbin, a committee-
man, Wilson Corbin, John R. McClain, and Lee Sowers.
At the hearing in case No. 8-C-1880, Goodman testified on August 6 and 10, 1946,
adversely to the Respondent. Scott Corbin, Wilson Corbin, McClain, and Sowers
likewise testified against the Respondent.
On October 24, 1946, Trial Examiner Frederic B. Parkes, 2nd, issued his Inter-
mediate Report in Case No. 8-C-1880 finding that the Respondent had engaged in
close of the hearing. In any event the Intermediate Report was deferred by the under-
signed until the Board issued its Decision and Order in case No. 8-C-1880, December 31
1948.
WOOSTER BRASS COMPANY 517
and was then engaging in certain unfair labor practices, to wit: (1) by inter-
fering with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act the Respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section 8 (1) of the
Act; (2) by discriminating in regard to the hire and tenure of employment of
Carl Braden, John R. McClain, and Herbert King, thereby discouraging mem-
bership in a labor organization , the Respondent had engaged in and was engaging
in unfair labor practices within the meaning of Section 8 (3) of the Act; and (3)
by refusing to bargain collectively with the United Automobile Workers of
America, Local Union No. 813, affiliated with American Federation of Labor, as
the exclusive representative of the employees in a certain appropriate unit, the
Respondent had engaged in and was engaging in unfair labor practices within
the meaning of Section 8 (5) of the Act.
On December 31, 1948, the Board issued its Decision and Order in Case No.
8-C-1880, (80 N. L. R. B. 1633) in which it adopted the Trial Examiner's find-
ings, conclusions, and recommendations, except that it found that the Respondent
had not discriminated against Carl Braden, John R. McClain, and Herbert King ;
nor had it refused to bargain collectively with the Union as the exclusive repre-
sentative of its employees in a certain appropriate unit.
The undersigned takes judicial notice of the Board's Decision and Order in
Case No. 8-C-1880 (80 N. L. R. B. 1633).
B. The events leading up to the discharge of Howard Goodman
During the war years the Respondent was engaged in the manufacture of
specialized equipment for the United States Navy. During the last year of the
war it had contracts for such equipment in excess of $1,000,000. During the
war period it had approximately 132 employees. Shortly after V-J day a large
number of its contracts with the Navy Department were cancelled. By the end
of 1945, all such contracts were either cancelled or completed. The Respondent
was then forced to return to the manufacture of its regular line of fire fighting
equipment. Prior to the war it enjoyed an excellent business in a field where there
was little competition ; there were only 4 companies in the United States that
specialized in the manufacture of this type of equipment. By the end of the war,
however, the field had expanded to 18. Thus changing the situation from a
practically non-competitive to a highly competitive business . Faced with this
situation the Respondent was forced to reduce its force from a peak of 132 to 78
employees, which it had at the time of the hearing herein. Again, due to increased
competition it was necessary to cut down its manufacturing costs and increase
its production. In order to accomplish this management was compelled to require
its employees to increase their efficiency and cut idle time to a minimum. In-
structions to this effect were given its supervisors in July 1946. According to
the credible testimony of John C. Schellin Respondent's President, and Joseph O.
Masson, assistant treasurer, and personnel manager, the situation was so critical
in the early part of the summer of 1946, that the company was operating at a
loss. In an attempt to remedy the situation individual workmen were watched
carefully by their respective foremen, particularly by Carl Braun, foreman of the
machine shop, and by Charles J. Green in the foundry. Individual employees
were cautioned, and warned to be careful in their work and to cut spoilage and
tool breakage to a minimum. Employees who disregarded such warnings and
continued to operate their machines in an inefficient and careless manner were
reprimanded. In furtherance of this policy the Respondent required its foreman
838914-50-vol. 82-34
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to keep a record of all instances of inefficiency , carelessness , spoilage of work,
and tool breakage of individual employees . All such records were kept in the
Respondent 's office.
The discharge of Howard Goodman
For several months prior to Goodman 's discharge on September 26, 1946, he
operated a lathe with Fox attachments . This is an engine type lathe , and the
cutting is done by a single pointed tool , which is held in place by a jaw chuck.
On September 25, Goodman was assigned to work on a No. 3, Warner - Swasey
turret lathe . He was instructed to machine a number of faucet bodies. The
machine had been set up for the job by Foreman Carl Braun . Before Goodman
started to operate the lathe , Braun ran a few of the faucets himself to see if the
job had been set up correctly and found that everything was in order and ready
for Goodman to go to work . A turret lathe of this type operates on a different
principle from an engine lathe, particularly as regards the chuck , and, at least
in this instance , the cutting tool. On this particular job the cutting was to be
done by a fluted die. Goodman was instructed to bore and thread the faucets.
Sometime in the afternoon of the 25th , he either accidently or carelessly brought
the die up against the shoulder of a faucet and broke 1 of the flutes. However, he
kept on using the die. Shortly thereafter he did the same thing again and broke
another flute. He continued to use the die, however , and did not report the dam-
age to Foreman Braun. On the morning of the 26th , Goodman continued to use
the die and broke 3 more flutes. He then told Foreman Braun about it. Braun
took him off the job and took the die out of the chuck. He then inspected the
faucets that Goodman had worked on and found that of the 113 he had finished,
37 were spoiled and had to be scrapped. Goodman then went back to his regular
lathe. Sometime in the afternoon Braun came to him and told him that Presi-
dent Schellin wanted to see him in the office.
When Goodman entered the office he found assembled therein, Schellin, per-
sonnel manager Masson, Braun , and a stenographer , Mrs. Carl Albaugh.
Schellin told Goodman that the purpose of the meeting was to discuss with him
the quality of his work . A stenographic record of what transpired at the meeting
was made, and is set forth in its entirety herein below :
Conference , September 26, 1946
Subject : Discharge of Mr. Howard Goodman
Present : Mr . J. C. Schellin
Mr. Carl Braun
Mr. Joe Masson
Mr. Howard Goodman
Mr. SgHELLIN. Howard, I had Carl bring you in here to discuss with you
the matter of your workmanship in the shop . I talked to you about a year
or so ago about a lot of other jobs that I think you have spoiled because of
plain carelessness and not watching what you are doing. I have here a
report of the mistakes that you have made over a period of about a month.
Have they been totalled up Joe?
Mr. MASSON . Yes, it's around two hundred dollars.
Mr. SOHELLIN . The actual cost of the work you have spoiled runs around
two hundred dollars in a period of one month.
(The report was presented to Mr. Goodman for his inspection.)
Mr. ScHELLIN . Now there is no mention made there of the latest charge
and that is a matter of putting you on the Number 3 Machine and the matter
of breaking the die and the matter of ruined castings . Neither is there any-
WOOSTER BRASS COMPANY 51 9
thing there about what appears to have been your work of making a ring of
stainless steel.
Mr. GOODMAN . It hasn't been made as yet . I just bored a hole in a piece
of stainless steel.
Mr. SCHELLIN. What for?
Mr. GOODMAN . It would have been made into something , but I didn 't finish
it. That stopped it right there when they asked me about it . That stopped
it.
Mr. SCHELLIN . Why did you make it in the first place without permission
from the company ? Do you know what we pay for stainless steel?
Mr. GOODMAN . I do not.
Mr. SCHELLIN . And you know if we permitted you to make something we
could not deny anyone else.
Mr. GOODMAN . No, you could not. I will agree with you.
Mr. SCHELLIN. Now what excuse do you have for all this bad work?
Mr. GOODMAN . This one item here that I made-the very next day they
sent them out and I was accused of doing them wrong.
Mr. MASSON . Yes, but at that particular time we did not have that order.
They are generally small orders because they are specialties . The castings
could have layed around here six months or longer . It just so happened
we got an order where we could utilize them.
Mr. BRAUN. We had thrown them away and when we got the order we
fished them out of the scrap barrel to fill the order.
Mr. SCHELLIN . Which indicated that we did not consider them as worth
anything.
Mr. BRAUN. That's right because that's a type that is very seldom made,
but it just happened that we got that order so we got those two out. Other-
wise we wouldn ' t have used them for a long time.
Mr. SCHELLIN . Well, Howard, in short you are a Class A man out here
and claim you can handle any machine in the shop- In fact, your classifica-
tion requires you to be qualified to do it. The number of pieces you turned
out is far below what Grade B men have been turning out . Grade B men
have turned out many more. You are supposed to do the work you are
qualified to do, and as a result of that record and the fact that our company
is at the present time facing a financial crisis, we just cannot afford to keep
you on the machine. You are costing the company much more than what
we pay you for your work. Sorry as I am because of your seniority and
because of the friendship that has existed between you and I personally, I
am just going to have to ask you to find work some place else . Don't you
think the company is justified in taking this position in lieu of our financial
status and in view of the fact that we have been operating " in the red" for
the past twelve months?
Mr. GOODMAN. As far as I am concerned , I will not argue. I'm not deny-
ing anything , but I will say this. In fairness to all of you I am not going
to say a word about this , but give it to all-don 't pick on one . I'm taking
mine like a man and I 'm not going to say a thing about anyone , but give it to
all, not just one.
Mr. SCHELLIN . We make an honest effort here to treat every man alike
and in your case we have been more tolerant . If it were not for your
seniority , if it had been any other employee they would have been dismissed
months and months ago.
Mr. GOODMAN . May I have this paper? ( Indicates report)
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. SCHELLIN. No, that is the only record we have.
Mr. GOODMAN. Well, I would like to have a record.
Mr. ScxF.LLIN. Howard, this is our record and you see why we called yoir
in here. We had this record made and put on paper, so if you claimed that
we did not bring to your attention these errors you have made, we would
have it in writing. It's not my work, it's Joe's and Carl's and I asked them
to make this record.
Mr. GOODMAN. That's all right. I'm not arguing that point. I am entitled'
to a copy of it as well as anyone else.
Mr. Conn. IN. No one else is being discharged today.
Mr. GOODMAN. That's not the point. I'm not arguing that point, I just
want to have a copy made.
Mr. SCHELLIN. I am sorry, but that is a company record that we are going
to keep here.
Mr. GOODMAN. I don't want that copy, but I believe in all fairness I should
have a copy to keep for myself.
Mr. SCHELLIN. You have read these and have stated that they are all true.
Mr. GOODMAN. I will never deny the truth.
Mr.SCHELLIN. Then let's drop it there.
Mr. GOODMAN. But I do want a copy.
Mr. SCHELLIN. I don't think they issue a copy any place else.
Mr. GOODMAN. Well, in all fairness there should be a copy given. I'm not
arguing anything else, I am not arguing anything else, I am just asking as a
man would ask.
Mr. SCHELLIN. We did this so that we would have a record.
Mr. GOODMAN. That's all right. I am not arguing that point . I am asking
for a copy for myself.
Mr. MASSON . I don't believe you are entitled to one and I base my argument
on this fact. If you were working for some other company and being dis-
charged they wouldn 't give you a record of your activities. They give you a
reason for discharge, but not a record of your discharge and that is what that
amounts to. That would be the same as asking for a record of production.
That is something no company gives out to its employees.
Mr. SCHELLIN. Yes, I agree with Mr. Masson, so the book is closed. Make
out his time and pay him in full for today, but that does not mean that you
work the balance of the day. Is that fair?
Mr. GOODMAN. I'm not arguing with you. I never will.
Mr. SCHELLIN. I am again sorry, but if we were to give you a written copy
of this reason for discharge, any other employee who we might discharge
could also insist upon a written report.
Mr. GOODMAN. I won't argue with you. There is only one thing and that
is I will take mine. I will never say anything about it, but play with the rest
just the same. There is a lot more of it.
Mr. SCHELLIN. During the war period we were obliged to overlook many
errors. About 15 or 18 months ago you spoiled work and tools for this com-
pany that amounted to five or six hundred dollars. I reprimanded you for
this and impressed on you the need for more care about your work. And also,
about the time you were in the plant intoxicated. If it had been anyone else
I would have fired them immediately.
Mr. GOODMAN. That is one thing you are not telling the truth. I was not
drunk and I never have come in this plant drunk. That is one thing-if I fell
on this floor dead-I was not drunk. I had been out all night long and I w!
WOOSTER BRASS COMPANY 521
asleep and I laid my head on the chuck and slept, but that is "water past the
dam." You had workmen come in here and sleep in the ladies rest room.
Carl Braun knows about it.
Mr. BRAUN . I don't know what you are talking about and as far as that
morning, you told me yourself that you were out the night before and you
had too many. We took you over to your car so you could sleep and you appre-
ciated it at that time . You told me so.
Mr. GOODMAN . That's right, I did.
Mr. SCHELLIN . Was he paid for that day?
Mr. GOODMAN. No, I rang my card out.
Mr. BRAUN. It might be possible . I don't recall-I don't know.
Mr. GOODMAN . I don't ask for anything I don't get.
Mr. SOMELLIN. Well, I want you to leave here in good spirit with no ani-
mosity toward me, Mr. Masson, Mr. Braun or the company and if and when
you decide to come back here and do better work and straighten out-we are
not barring you from the company-and agree to do better work, we will
make a place for you.
Mr. GOODMAN. There's some of those Siamese that I made up out there.
I want you to go out and look at them.
Mr. BRAUN. What's wrong with them?
Mr. GOODMAN . Nothing. I just want you to go out and look at them.
Mr. BRAUN. That's the way your work should be all the time. There
shouldn 't be anything wrong with it.
The conference was then closed.
As indicated above the Respondent promulgated in July 1946, the policy of
keeping a record of major dereliction of its employees. Goodman's record in
this regard is set forth below :
HOWARD GOODMAN
July 16, 1946-On this date, Mr. Goodman was given a 21/2X11/2X11/2,'
Siamese to machine the 2 11/x" male ends for one of our customers' orders,
namely, Trautwein's. The 2%" end was completely finished. Nevertheless,
he finished this end to 3" size ruining the casting entirely, thereby holding
up delivery of this particular order. ($20.00)
July 29, 1946-On this date, while running 6 4X5 males on Shop order
680, machined one of these males to 11/4" long instead of 11/8" long as called
for on the order. This error on Mr. Goodman's part was found at the time
the males were threaded on the thread mill which necessitated the remachin-
ing of the casting and delayed delivery approximately three days due to Mr.
Goodman's absence from the plant from 12: 00 o'clock noon July 29 to 12: 00
noon July 31st. ($10.28)
August 14, 1946-Shop Order #716, L. N. Curtis & Sons. All parts of this
order was taken to him together in one pan. One part of this order called
for a style SLP-25VG, long type Siamese with screw stem gate valves fas-
tened to Siamese. Male ends to be on discharged end of gates. Goodman
machined Siamese the same as a plain open type Siamese (less gates). This
necessitated machining a new complete Siamese casting. Time lost will be
about 11/2 hrs. This type of work is about 50% of the work involved on this
particular machine. ($20.00)
Week of August 12, 1946-Shop order #431, Neep Equipment Co. Part of
this order called for 2 11/2" Style VQT-15 Gate Valves. The swivels for
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this are iron pipe thread and Mr. Goodman threaded them 11/2 PCT. Paul
Cicconetti had to return these in order to get order out on time (1 hr lost
time.) This includes getting swivels buffed out plated. ($3.70)
August 23, 1946-A Blue Book of Rules (8-25-43) handed to H. Goodman
by J O. Masson in the presence of C. J. Braun.
September 9, 1946-Derbyshire Machine & Tool Company, Order 1438
calling for 4-2%" VQT-25 Butterfly Valves with Male inlet and male out-
let. He was told by K. Kostenbader to watch this order. He machined all
4 valves with one side female instead of male, thereby ruining all 4 body cast-
ings. ($144.00)
September 24, 1946-Was found machining a piece of I'/._>" round stain-
less steel bar stock, evidently to be used for a finger ring. At least it was not
anything to be used in company products. Steel chips falling into brass
chips in bed of machine.
September 26, 1946-On Thursday morning while matching faucet bodies
on the #3 Warner & Swasey Turret Lathe, through carelessness, while he
was threading the head of the body with an eight fluted solid die with over-
hanging flutes, he ran the die into the shoulder of casting breaking five
flutes out of the die, thereby holding up production and necessitating the
making of a new die, the cost of which amounted to $40.00. In addition to
breaking the die, it was necessary to scrap 37 faucets bodies out of a total of
113 which he had machined on September 25th and 26th due to faulty
workmanship. The cost of the castings scrapped amounted to $14.07.
Goodman admitted that he was responsible for the errors and work spoilages
as described above. He also admitted that for over a period of months prior to
his discharge he had been cautioned and warned on several occasions about the
quality of his work and that on occasions he had been reprimanded by his
superiors.
In the candid opinion of the undersigned some of the above derelictions are
inexcusable, especially in view of the fact that Goodman was a class "A" operator.
The record clearly shows that he was one of the sponsors, and in fact, the chief
spokesman of the Union for the establishment of the classification system. At
one of the meetings between the union committee and the Respondent, Goodman
insisted that he should be classed as an "A" operator in view of his long
experience coupled with the fact that he could operate and set up all types of
machines in the Respondent's plant, including the turret lathes.
Under the rules of the classification system subsequently adopted in the
Respondent's plant, a class "A" operator must be able to set up a job in a
machine, read blueprints, operate any machine in the shop, and complete the
job without supervision. If Goodman's admitted derelictions are considered
as criteria of his qualifications as a workman, it is difficult to understand why
he was permitted to remain on the pay roll as a class "A" operator. For example,
on September 9, he was given 4, 21/2" butterfly valves to machine. He was
told by Karl Kostenbader, stockroom clerk, that they were for a special order,
and Goodman was given detailed instructions in this regard. He was also given
a copy of the shop order and the blueprints to guide him in machining the valves.
Both the order and the blueprints called for "male" inlet and outlet threads.
In total disregard of these instructions Goodman machined all four valves
with one side "female" and the other "male."
At the hearing herein he admitted that he didn't even look at the shop ord€
or the blueprint until he had completed the job. Due to his admitted error
WOOSTER BRASS COMPANY 523
four valves were practically valueless . Moreover , in addition to the time lost,
the Respondent suffered a monetary loss of $144.
Another typical example of Goodman's carelessness and negligence was the
manner in which Goodman used the fluted die while machining the faucet
bodies on September 25, and 26, which has been described above. Goodman in
justification of his conduct on this occasion , contended at the hearing that he
was put on a machine that he had never operated before, and that this made
him nervous and that this was a contributing factor to his faulty workmanship.
It must be remembered that he was a class "A" operator and under this classi-
fication he was expected to be able to operate not only a turret lathe but in
fact any machine in the shop . Moreover lie was one of the most ardent proponents
of the classification system, and well knew the standards required of an "A"
operator.
The Board contended at the hearing that someone tampered with the die before
Goodman started to work on the morning of September 26 and that this was also
a contributing factor in the breaking of the die , and the resultant work spoilage.
In support of this contention , the Board offered the testimony of Paul Graber, a
former molder in the Respondent 's foundry . Graber testified that shortly after
Goodman was discharged he was told by Charles J. Green, foreman of the foundry,
that someone at the instigation of the Respondent , in order to get "something on"
Goodman, changed the die on the No. 3 Warner -Swasey turret lathe without
Goodman's knowledge , and that when he started to machine the faucets he broke
the die, and that the Respondent used this incident as an excuse to discharge him.
Green flatly denied Graber 's testimony in this regard . His denial is buttressed
by the testimony of Goodman himself , who testified upon interrogation by the
undersigned that ( 1) he broke two flutes of the die on the afternoon of September
25, (2) that on the morning of the 26th he broke three more flutes on the same die ;
(3) he made no contention that there had been any change of the dies , and (4)
that he reported to his foreman , Carl Braun , that he had broken said die. In
such a state of the record , the undersigned is convinced , and finds, that Goodman's
lathe was not tampered with between the night of the 25th and the morning of
the 26th of September , accordingly the undersigned credits Green 's denial and
gives no credence to Graber 's testimony in this regard.
Also typical of Goodman 's attitude towards his job was the chincing of a piece
of 11/2" stainless steel during working hours, for the admitted purpose of making
a finger ring . He admitted that he picked up the steel in the stock room, but
justified his conduct on the grounds that it was scrap and of no value . Regardless
of the value of the steel, the vice of his conduct in this regard is the fact that
he machined the steel with a drill designed to work on brass, a much lighter
metal, and permitted the cuttings to drop in the cuttings pan which contained only
those of brass . Thus the steel could have ruined a whole run of castings because
the brass cuttings are melted down and made into new castings . Since brass is a
lighter metal it requires different tools to machine it , and when a tool designed
to cut brass runs into a steel chip in the casting it usually causes the tool to break.
Counsel for the Board both at the hearing herein , and in his brief, contends
that Goodman was discharged not only because he testified in Case 8-C-1880, on
August 6 and 10 , 1946, but also for the further reason that he was the most
active proponent of the Union among the respondent 's employees . The record
in Case 8-C-1880, and in the instant case, does not, in the considered opinion of
the undersigned , sustain this contention and the undersigned so finds. True, he
was chairman of the grievance committee , and president of the local , but on the
her hand, the record in both cases shows that Scott Corbin was equally active on
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
behalf of the Union , and also testified adversely to the Respondent in Case No.
8-C-1880. Moreover, John R. McClam, Wilson Corbin, and Lee Sowers, likewise
were active on behalf of the Union , and also testified adversely to the Respondent
in Case No. 8-C-1880. None of these employees were discharged by the Respond-
ent. Nor is there a scintilla of evidence in the present record that they have been
discriminated against by the Respondent since so testifying.
Concluding findings
The sole issue herein is whether or not Goodman's discharge on September 26,
1946, was motivated by the fact that he was a prominent union member, and had
testified adversely to the Respondent on August 6 and 10, 1946, in Case No.
8-C-1880, or because of his carelessness and negligence in performing his work
in the respondent's shop.
In view of the above findings the undersigned is convinced that the motivating
force behind Goodman's discharge on September 26, 1946, was his inefficiency
and carelessness in the performance of his work. The record is clear that his
derelictions extended over a period of several months. When this fact is con-
sidered in the light of his admissions the undersigned is convinced that under
such circumstances the only reasonable inference that can be drawn therefrom
is that he was discharged for just cause, and the undersigned so finds' The
undersigned is not unmindful of the fact that the Respondent has committed
unfair labor practice in the past, and he has given this matter due consideration.
It is well settled that findings of fact must be predicated on reliable, probative,
and substantial evidence, not on surmise, suspicion, and speculation. Such is the
situation herein. As the Fifth Court of Appeals speaking through Holmes, Chief
Justice, in the Union Manufacturing Co. case said; "It is unnecessary for an
employer to justify the discharge of an employee as long as it is not for union
activities. The presumption is that the employer has not violated the law, and
the burden of proof is not on the employer, but upon the one who asserts the fact
to prove that the discharge was because of union activities This burden has not
been met, and the Board's findings are not supported by substantial evidence."
A like situation exists herein. Accordingly the undersigned is convinced and
finds that the Board did not prove the allegation in its complaint by reliable,
probative, and substantial evidence that Howard Goodman was discharged for
the reason that he formed and assisted the Union and engaged in concerted
activities with other employees of the Respondent for the purpose of collective
bargaining and other mutual aid and protection, and, also because he gave testi-
mony under the Act on August 6 and 10, 1946, and that by so doing violated
Section 8 (1) (3) and (4) of the Act. Hence, the undersigned recommends
that these allegations in the complaint be dismissed.
In view of the above findings and conclusions of law the undersigned recom-
mends that the complaint herein be dismissed in its entirety.
CONCLUSIONS OF LAW
(1) The operations of the Respondent, Wooster Brass Company, constitute,
and affect trade, traffic, and commerce among the several States, within the
meaning of Section 2 (6) and (7) of the Act.
(2) United Automobile Workers of America, (A. F. L.) is a labor organization
within the meaning of Section 2 (5) of the Act.
2 See In the Matter of Eagle d Phenix Mills, 15 N. L. R. B. 1044; N. L. R. B. v. Union
Manufacturing Company, 28 N. L. R. B. 357, 124 F. (2d) 332 (C. A. 5).
WOOSTER BRASS COMPANY 525
(3) The Respondent has not engaged in unfair labor practices within the
meaning of Section 8 (1), (3) and (4) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that the complaint against the Wooster Brass Company , Wooster,.
Ohio, be dismissed in its entirety , insofar as it alleges that the Respondent
engaged in unfair labor practices within the meaning of Section 8 (1), (3),
and (4).
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
with the Board, Rochambeau Building, Washington 25, D. C., an original and
six copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report and Recommended Order or to any other part of the record or
proceeding ( including rulings upon all motions or objections ), as he relies upon,
together with the original and six copies of a brief in support thereof ; and any
party may, within the same period, file an original and six copies of a brief in
support of the Intermediate Report and Recommended Order. Immediately
upon the filing of such statement of exceptions and/or briefs , the party filing
the same shall serve a copy thereof upon each of the other parties. Statements
of exceptions and briefs shall designate by precise citation the portions of the
record relied upon and shall be legibly printed or mimeographed , and if mimeb-
graphed shall be double spaced. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section 203.85.
As further provided in said Section 203.46 should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of service of the order transferring
the case to the Board.
In the event no. Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions , recommendations , and recom-
mended order herein contained shall , as provided in Section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings, conclusions,
and order , and all objections thereto shall be deemed waived for all purposes.
Dated at Washington , D. C., this 28th day of January, 1949.
JAMES A. SHAW,
Trial Examiner.