A. H. Wirz, Inc.

In the Matter of A. H. WIRz, INC. and AMALGAMATED ASSOCIATION OF IRON, STEEL AND TIN WORKERS OF NORTH AMERICA Case No. C-600.-Decided October 05, 1938. Collapsible Metal Tube Manufacturing Industry-Interference, Restraint, and Coercion and Company-Dominated Union: no findings as to, because of compliance with Trial Examiner's recommendations ; complaint not dismissed since recommendations contemplate a continued course of conduct- Discrimi-nation: charges of, not sustained. _ Mr. Joseph F. Castiello, for the Board. Mr. J. H. Ward Hinkson, of Chester, Pa., for the respondent. Mr. Henry G. Sweeney, of Chester, Pa., for the Association. Mr. M. H. Goldstein, of Philadelphia, Pa., for the Amalgamated. Mr. William F. Guffey, Jr., of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Charges and amended charges having been filed by Steel Workers Organizing Committee on behalf of Amalgamated Association of Iron, Steel and Tin Workers of North America, herein called the Amalgamated, the National Labor Relations Board, herein called the Board, by Stanley W. Root, Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued and duly served its complaint, dated January 15, 1938, against A. H. Wirz, Inc., Chester, Pennsylvania, herein called the respondent, alleging that the re- spondent had engaged in and was engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. As to-the unfair labor prac- tices, the complaint, as amended at the hearing, alleged in substance that the respondent interfered with, restrained, and coerced its em- ployees in the exercise of the right to self-organization; that it dominated, interfered with, and fostered the formation and admin- 9 N. L. R. B., No. 43. 480 DECISIONS AND ORDERS 481 istration of Collapsible Tube Workers Association of Chester, herein called the Association; and that by the discharge of Massie Gibson and George F. Long, it had discriminated against these 'employees in regard to their hire and tenure of employment, thereby discourag- ing membership in the Amalgamated. Thereafter, the respondent filed its answer denying all the unfair labor practices alleged in the complaint. Prior to the hearing the Regional Director granted the Association's petition to intervene. On January 20, 1938, the Asso- ciation filed its answer denying that the respondent had dominated, interfered with, or fostered the formation or administration of the Association. Pursuant to notice duly served on the respondent, the Amalga- mated, and the Association, a hearing was held at Chester, Pennsyl- vania, from January 31 to February 4, 1938, before James L. Fort, the Trial Examiner duly designated by the Board. All the parties were 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 several rulings on motions and objections to the admission of evidence. The Board has reviewed these rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings ar"e hereby affirmed. At the close of the hearing, the respondent and the Association filed briefs with the Trial Examiner. On April 27, 1938, the Trial Examiner filed his Intermediate Re- port, copies of which were duly served on the parties, in which he found that the respondent had engaged in two of the unfair labor practices alleged in the complaint, by interfering with its employees in the exercise of their right to self-organization and by dominating and interfering with the formation and administration of the* Asso- ciation. He further found that the respondent had not engaged in an unfair labor practice by discharging Gibson and Long. The Trial Examiner accordingly recommended that the respondent cease and desist from engaging in the unfair labor practices found and that it cease giving recognition to, and completely disestablish the Associa- tion as collective bargaining representative for any of its employees. He further recommended that the complaint, in so far as it alleged the discriminatory discharges of Gibson and Long, be dismissed. On May 4, 1938, •the respondent filed with the Regional Director for the Fourth Region its report setting forth the manner in which it had complied with the Trial Examiner's Intermediate Report. The re- spondent has fully complied with the recommendations of the Trial Examiner. ` It has posted notices as required, and leas completely disestablished the Association as a collective bargaining agency for any of its employees. On May 14, 1938, the Amalgamated filed ex- 482 NATIONAL LABOR RELATIONS BOARD ceptions to the Intermediate Report on the ground that the Trial Examiner erred in refusing to find that Massie Gibson and George F. Long were discriminatorily discharged. The Amalgamated and the respondent requested opportunity to present oral argument and per- mission to file briefs. ., Pursuant to notice duly served on all the parties, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on September 20, 1938. The respondent appeared and par- ticipated in the hearing. The Amalgamated and the Association failed to appear. - The Board has considered the Amalgamated's ex- ceptions to the Intermediate Report and 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, A. H. Wirz, Inc., a Pennsylvania corporation with its plant and principal place of business at Chester, Pennsylvania, is engaged in the manufacture, sale, and distribution of collapsible metal tubes, sprinkler tops, and light metal specialties. The respondent also maintains offices iii New York, Chicago, and California. At the time of the hearing the respondent employed approximately 235 persons. The raw materials used by the respondent consist chiefly of tin, aluminum,- lead, enamel, and ink. Approximately 50 per cent of these raw materials are shipped to the respondent's plant from points out- side of Pennsylvania. The respondent does an annual business of• approximately $800,000. On the basis of value, approximately 83 per cent of its finished products are shipped to points outside of Penn- sylvania. We find that the operations of the respondent; A. H. Wirz, Inc., oc- cur in commerce, within the meaning of Section 2 (6) of the Act. II. THE ORGANIZATIONS INVOLVED Amalgamated Association of Iron, Steel and Tin Workers of North America is a labor organization affiliated with the Committee for In- dustrial Organization. It admits to membership "workers engaged in the metal industries, including employees of the, respondent. The record does not. disclose the precise limits of its jurisdiction. Collapsible Tube Workers Association of Chester is an unaffiliated labor organization admitting to membership all employees of the respondent who, are paid on an hourly or piece-work basis. DECISIONS AND ORDERS 483 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Trial Examiner's findings of fact In his Intermediate Report, the Trial Examiner, in substance, made the following findings of fact : In February 1936, following a sit-down strike in protest against a proposed wage cut, the respondent's employees appointed a shop committee which conferred with Henry S. Darlington, the respond- ent's president, and succeeded in settling the controversy. Except for this shop committee, which continued to function as a grievance com- mittee, there was no organization of the respondent's employees until May 1937. Early in the spring of 1937, Albert "Chick" Bradley, a foreman, suggested to Arthur Towlson, another foreman, that a group-insur- ance plan be organized for the respondent's employees. After a dis- cussion between themselves, Bradley and Towlson suggested the plan to the shop committee. Thereafter the shop committee, together with Towlson and Bradley, met with the representative of an insurance company and discussed such a group-insurance plan. At this meeting, it was agreed that the plan should be submitted to all the respondent's employees by means of a written memorandum. Towlson drafted a memorandum which was then signed by the members of the shop committee. At the same time Towlson prepared another memoran- dum, which was also signed by the committee, proposing the forma- tion of a shop union. This latter proposal provided that a meeting be held to elect officers and an organizing committee to complete the organization. The proposed shop organization, as outlined in the memorandum, was intended to function as a collective bargaining agent to represent the employees in negotiating with the respondent; to set up and administer a sick-benefit plan; and to encourage social relations among the employees. This shop union was definitely asso- ciated with the insurance proposal by the concluding statement in the shop union memorandum that such an organization would act as an agent of the employees in soliciting the support of the respondent in establishing a group-insurance plan. Both of the above-mentioned memoranda, which were printed with the knowledge of the respondent's officers on a duplicating machine owned by the respondent, were circulated among,the employees at the plant by several of the employees, including Towlson, Bradley, and other foremen. When the employees, however, failed'to express any interest in these proposals, Towlson. decided, to hold a meeting of the employees and present the proposals to them directly. Notices of this.proposed, meeting were posted in conspicuous places throughout the plant in late' 134008-34-vol. IX-32 484 NATIONAL LABOR RELATIONS BOARD May or early June 1937. When John T. Bulmer, an employee who had joined the Amalgamated some time in May, saw these notices, he told Towlson that he was violating the law in taking part in such activities. Towlson conferred with the respondent's treasurer, who upon advice of the respondent's legal counsel, suggested that he should have nothing whatever to do with this'proposed meeting. Towlson advised "Chick" Bradley that they would have to withdraw from such organizational activity. Because of their withdrawal the meet- ing was never held. However, David A. Murphy and other employees who had been active with Towlson and Bradley continued their efforts to form a shop union. About June 1, Murphy and his associates held a meeting to plan the formation of the shop union, and on June, 9 application cards for membership in the Association were printed. Murphy placed the order for these cards, but Towlson brought them from the printers to Murphy at the plant. These cards, which designated the Association as the collective bar- gaining representative of the signer, were distributed in the plant. While Towlson and Bradley did not participate, other supervisory employees were very active in the distribution of them. In the assem- bly room they were distributed by Mrs. Pierce, who is the head inspec- tor, or floor woman, and is a salaried employee, and Madge Vose, who acts in a supervisory capacity in the absence of Pierce. Vose actively urged the employees to sign the cards. Williamson, the foreman in this department, knew of the organizational activities of Pierce and Vose and apparently gave his approval. Upon seeing that some of the employees hesitated in signing thesek cards he said, "You girls are afraid to sign this card as if it were a death warrant." Although the Association had been organized and officers had been elected by the middle of June 1937, the Association did not adopt its constitution and bylaws until January 20, 1938, 5 days after the complaint in this proceeding had been filed, and 3 days after it had been served on the Association. At the time of the hearing, Murphy, president of the Association, showed a total lack of familiarity with the bylaws. He expressed surprise at the hearing to learn that one section of the bylaws provided that the discharge of an employee by the respondent would automatically cause the employee to lose his membership in the Association. The activity of the foremen was not limited to aiding the Associa- tion. They actively discouraged membership in the Amalgamated. Towlson asked Vera Bondrowski, an employee, if she was a member of the C. I. 0., and when she answered in the affirmative, he tried to "talk her out of it.'-' ,Williamson joined Towlson in discouraging Bondrowski's further association with the Amalgamated. Vose made - DECISIONS AND ORDERS 485 certain disparaging remarks about the Committee for Industrial Organization and referred to members of it as "rats." B. The Trial Examiner's conclusions The Trial Examiner found that by interfering with the formation of the Association and encouraging membership of its employees therein, and by discouraging membership of its employees in the Amalgamated, the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) and (2) of the Act. He accord- ingly recommended that the respondent cease and desist from such unfair labor practices and that it take certain affirmative action which would effectuate the policies of the Act. The Trial Examiner found, however, that Massie Gibson and George F. Long were not dis- criminatorily discharged. Since the respondent has completely disestablished the Association as the collective bargaining representative of any of its employees and has posted cease and desist notices in its plant, thereby complying with the Trial Examiner's recommendations, it is not necessary at this time for us to pass upon the case except in so far as issues are raised by the Amalgamated's exceptions. C. The issues raised by the Amalgamated's exceptions Since the Amalgamated has excepted to the findings of the Trial Examiner that Massie Gibson and George F. Long were not dis- criminatorily discharged, we must consider this branch of the case. 1. The discharge of Massie Gibson Massie Gibson was employed by the respondent on April 5, 1937. He was discharged on August 12, 1937. The complaint alleges that Gibson was discharged because of his membership in and activity on behalf of the Amalgamated. Although Gibson was active in the plant on behalf of the Amalgamated, constantly wore his union but- ton, and solicited membership for the Amalgamated, it does not appear from the record that he was more prominent in that organiza- tion's affairs than other members of the Amalgamated. The respondent claims that Gibson was discharged because his work was wholly unsatisfactory and because he manifested an in- subordinate and an insolent attitude toward his superiors. During the 4 months of his employment, Gibson worked on three different jobs, all of which entailed simple operations. His first job consisted of washing metal discs from which collapsible metal tubes are pressed. Almost from the beginning, complaints,were registered by the foreman in the press department that Gibson's work was so- improperly done that it was impossible to perform the pressing oper- 486 NATIONAL LABOR RELATIONS BOARD ations. Many times these discs were sent back for rewashing, and finally the foreman, disliking the delay caused by rewashing the discs, started doing the job himself. Gibson was then admonished and transferred to collecting scrap metal and taking work to the employees who did piece work. On this job, Gibson shoveled the scrap metal into storage boxes from bins beneath the machines. He was instructed that it was important that the different metals be kept entirely separate. The different metals are easily distinguishable, and the boxes into which they were to be placed were clearly marked. Notwithstanding his instructions Gibson repeatedly mixed metals, thus causing the production of an alloy which could not be used. On at least two occasions, Gibson refused to take work to the employees, unless they promised to-buy tickets to a union dance or sign mem- bership cards for the Amalgamated. When Gibson failed to improve his work on this job, he was again warned of his poor work and transferred to the cleaning of coating machines. This operation con- sisted merely of cleaning the ink and enamel from the rollers of the machines. It was a simple operation, requiring only that all the ink and enamel while still' wet be removed with cleaning fluid. On sev- eral occasions Gibson neglected to clean the rollers properly, and it became necessary to change them, thereby causing a delay in the operations of the plant as well as the loss of the discarded rollers. Complaints about Gibson's work continued to be registered, and a short time before Gibson was discharged, Towlson, his foreman, finally told the superintendent of the plant that he intended to dis- charge Gibson upon the next complaint. On the evening of August 11, Gibson, accompanied by a young lady, entered the respondent's plant after working hours for the purpose of seeing another worker. While there, Gibson used a tele- phone on purely personal business, thereby interfering with the proper performance of the night watchman's duties. The telephone was kept open at night chiefly for police purposes. The respondent's night watchman and the watchman in a neighboring plant had a system whereby they alternately telephoned each other every hour. If the call did not come through at the proper time, the watchman at the receiving end notified the police. On this evening Gibson's use of the telephone delayed the respondent's watchman from re- porting. The next morning the watchman included a statement of the incident in his usual nightly report. Upon learning of this incident, Towlson withdrew Gibson's time card, made out his pay envelope, and upon Gibson's arrival at the plant, discharged him. Shortly thereafter, an organizer for the Amalgamated conferred with Darlington, the respondent's president, seeking to have Gibson reinstated: ' Darlington, 'upon advice of legal counsel, agreed to rein- DECISIONS AND ORDERS 487 state Gibson, but made it clear to the organizer that he was rein- stating Gibson not because he so desired , but only for the purpose of avoiding a dispute with the Amalgamated . Darlington testified that his only purpose in reinstating Gibson was to avoid a complaint before the Board, which his counsel had advised him would be impossible to defend successfully , regardless of the merits of the case. Upon hearing that Darlington had agreed to reinstate Gibson, a committee representing the respondent 's employees met Darlington in his office and informed him that if Gibson were reinstated, the employees would go on a strike . Darlington again consulted his counsel and was informed that he was "in a spot," and that he should use his own judgment .. Thereupon, Darlington decided not to reinstate Gibson and informed the organizer for the Amalgamated of his final determination. - - It appears that the respondent had good reason to discharge Gibson. The immediate cause of the discharge was Gibson's interference with the night watchman's duties on August 11, 1937. Gibson's unsatis- factory work and his failure to improve after several warnings was a substantial contributing cause. Under the circumstances , we find that Gibson was not discharged because of his membership in, or activity on behalf of , the Amal- gamated. 2. The discharge of George F. Long George F. Long had, worked for the respondent 4 or 5 years prior to his discharge on November 8, 1937. Long joined the Amalgamated in -June 1937, and although he solicited memberships in the Amal- gamated, he was no more active than other members of that labor organization. The respondent claims that Long was discharged because of an altercation occurring between him and another workman during the morning of the day on which he was discharged . About noon of November 8, Long and Rasmutten , another employee, were working together in the foundry shoveling scrap metal into four cauldrons of molten metal . The employee usually in charge of the foundry was absent and Rasmutten was taking his place. Both Rasmutten and Long were attending all the cauldrons , and neither was assigned to any particular ones. Rasmutten put some additional metal into the cauldron nearest to Long, whereupon Long became angry. He expressed his disapproval and thereupon pushed Rasmutten into a box containing scrap metal . While Rasmutten was endeavoring to extricate himself, Long picked up an iron bar about 30 inches long and about 1 inch in diameter , and drew it back over his head, pre- paring to hit Rasmutten. At this point, another employee interfered, 488 NATIONAL LABOR RELATIONS BOARD took the iron bar from Long and summoned several of his superiors, including Darlington. Both Rasmutten and Long were asked to relate what had happened. Rasmutten's account was substantially the same as the foregoing. When Long was asked for his version of the incident, he would make no statement, other than to say that he had "lost his head." Edwin H. Barker, plant engineer, then told Long that he was too dangerous, a man to have on such work and ordered him to go home immediately. Long left the plant and was discharged later in the • day. The same day Long made threats against Rasmutten who filed charges of assault and battery against Long. At the hearing on these charges Long entered a plea of guilty and was put under bond to keep the peace. Sometime after this occurrence, Long signed a typewritten state- ment in which he stated that Rasmutten had hit him in the face without warning because of some argument that had arisen in con- nection with their work, and that he had then pushed Rasmutten into the box. At the hearing Long testified that Rasmutten threw some scrap metal into one of the cauldrons and caused hot metal to splash out on him, and that when Long asked Rasmutten why he was splashing metal, Rasmutten responded by striking him in the mouth. This was the first time that Long had ever stated that hot metal had been splashed on him. His testimony on this point is not substan- tiated by any other evidence. In view of Long's refusal even to attempt to justify his.conduct at the time the incident occurred, and because of the discrepancy in his later stories concerning the incident, his testimony is not convincing. We f nd that Long was not discharged because of his membership in, or activity on behalf of, the Amalgamated. INT. THE REMEDY As described above, the Trial Examiner found that the respondent has engaged in unfair labor practices within the meaning of Section 8 (1) and (2) of the Act. He recommended that the respondent cease and desist from such unfair labor practices and that it com- pletely disestablish the Association as the collective bargaining rep- resentative for any of its employees. The respondent has fully com- plied with these recommendations. It is not, therefore, necessary for us to make findings of fact and conclusions of law, or an order based thereon. We shall not, however, dismiss the complaint since the recommendations of the Trial Examiner contemplate a continuing course of conduct on the part of the respondent. We have found that Gibson and Long were not discriminatorily dis- charged. We shall, therefore, dismiss the complaint in so far as it relates to Gibson and Long. DECISIONS AND ORDERS 489 Upon the basis of the above findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Amalgamated Association of Iron, Steel and Tin Workers of North America and Collapsible Tube Workers Association of Chester are labor organizations , within the meaning - of Section 2 (5) of the Act. 2. The operations of the respondent, A. H. Wirz, Inc., Chester, Pennsylvania , occur in commerce within the meaning of Section 2 (6) and (7) of the Act. 3. The respondent, by discharging Massie Gibson and George F. Long, has not discriminated in regard to the hire and tenure of employment of the said Massie Gibson and George F. Long, and has not thereby discouraged membership in a labor organization or en- gaged in unfair labor practices , within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the 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 the complaint, in so far as it alleges that the respondent has engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed.