Harbison-Fischer Manufacturing Co.

- HARBISON-FISCHER MANUFACTURING CO. 885 CONCLUSIONS OF LAW 1. Respondent Company is engaged in commerce within the meaning of the Act. 2. ABC and Local 19 are each labor organizations within the meaning of the Act admitting to membership employees of the Company. 3. By not prohibiting Local 19 from campaigning and making threats to em- ployees in the plant , while prohibiting ABC from campaigning in the plant , Respond- ent Company interfered with the exercise of employee rights under Section 7 of the Act, the Company thereby violating Section 8 (a)(1) of the Act. 4. By removing ABC campaign literature while permitting Local 19 campaign literature to remain posted in the plant where notices to employees are customarily posted, Respondent Company interfered with the rights of employees guaranteed in Section 7 of the Act in violation of Section 8 (a)( 1 ) of the Act. 5. By prohibiting work leaders from campaigning in the plant on their own non- working time Respondent Company interfered with the rights of employees guaran- teed in Section 7 of the Act, thereby violating Section 8 (a)(1) of the Act. 6. By engaging in the activities set forth in paragraphs numbered 3 and 4, above, Local 19 and Respondent Company interfered with the exercise by the employees of their free choice of bargaining representatives such that that election of August 24, 1959, should be set aside. 7. By discriminating in regard to the hire and tenure of employment of John Asselman, thereby discouraging membership in American Bakery and Confectionery Workers' International Union, AFL-CIO, Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 8. By the acts set forth in paragraph numbered 7, above, Respondent has inter- fered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( 1 ) of the Act. 9. The aforesaid unfair labor practices set forth in paragraphs numbered 3, 4, 7, and 8, above, are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Harbison-Fischer Manufacturing Co. and Lodge 1591, Inter- national Association of Machinists, AFL-CIO. Case No. 16- CA-1418-2. May 31, 1961 DECISION AND ORDER On March 6, 1961, Trial Examiner Lloyd Buchanan issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in other unfair labor practices al- leged in the complaint and recommended that such allegations be dismissed.' Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- i In the absence of any exceptions thereto, we adopt pro forma the Trial Examiner's findings that Nelson's remarks to Murdock did not constitute illegal interference or restraint , and that Maddux was laid off for nondiscriminatory reasons. 131 NLRB No. 110. 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations, Board hereby orders that the Respondent, Harbison-Fischer Manu- facturing Co., Fort Worth, Texas, its officers, agents , successors, and assigns, shall: 1. Cease and desist from : (a) Interrogating employees concerning union activity in a manner constituting interference, restraint, and coercion within the meaning of Section 8 (a) (1) of the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its plant in Fort Worth, Texas, copies of the notice attached hereto marked "Appendix." ' Copies of said notice, to be .furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Company's representative , be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered , defaced, or covered by any other material. (b) Notify the Regional Director for the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent violated Section 8(a) (3) of the Act by discharging Maddux, and Section 8(a) (1) of the Act by its statements to Murdock. IIn the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor-Management Relations Act, we hereby notify our employees that: HARBISON-FISCHER MANUFACTURING CO. 887 WE WILL NOT interrogate employees concerning union activities in a manner constituting interference, restraint, or coercion with- in the meaning of Section 8 (a) (1) -of the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Lodge 1591, International Association of Machinists, AFL-CIO, or any other labor organization; to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. All of our employees are free to become, remain, or to refrain from becoming or remaining members in good standing of Lodge 1591, International Association of Machinists, AFL-CIO, or any other labor organization. HARBISON-FISCHER MANUFACTURING Co., 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER ' The complaint herein alleges that the Company has violated Section 8 (a)(3) of The National Labor Relations Act, as amended, 73 Stat. 519, by discharging Michael L. Maddux on or about September 2, 1960 , and thereafter failing and refusing to reinstate him, because he engaged in union or other concerted activity ; and Section 8(a) (1) of the Act by said alleged acts, by interrogation about and between August 28 and September 6, and again about October 1, 1960 , concerning union activity and employees' knowledge thereof, and by a threat of loss of benefits if the Union came into the plant . The answer denies that Maddux was discharged , and further denies that the Company committed any unfair labor practices as alleged. A hearing was held before Trial Examiner Lloyd Buchanan at Fort Worth, Texas, on December 21, 1960. Pursuant to leave granted to all parties , a brief has been filed on behalf of the Company. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) I. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was admitted and I find that the Company, a Texas corporation with principal office and place of business in Fort Worth, Texas, is engaged in the manufacture and fabrication of oil well equipment; that it annually ships more than $50,000 of oil well equipment outside the State of Texas; that it annually receives more than $50,000 of goods from outside the State of Texas; and that it is engaged in com- merce within the meaning of the Act. It was admitted and I find that the Union is a labor organization within the mean- ing of the Act. II. THE UNFAIR LABOR PRACTICES A. The alleged independent violation of Section 8(a) (1) Employee Murdock testified that, in the latter part of August 1960, Supervisor Nelson approached his machine and asked whether he had heard anything about 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union, Murdock replying in the negative; and that a couple of weeks later (this modifies the time sequence alleged in the complaint) Nelson again approached him and asked whether he had heard any more about the Union, and again received a negative reply. Nelson added that somebody had said that Murdock had been distributing union cards; this the latter quite definitely denied. We must bear in mind that Nelson is Murdock's uncle and as such may be conceded a personal interest in his nephew's activities without any intent to interfere unlawfully. More to the point, with respect to the general context, which is considered infra, and the tendency of the interrogation to interfere, the relationship between the two suggests that the remarks would be regarded as an attempt at avuncular guidance rather than interference or restraint. Employee Holmes testified that on August 28 Nelson came to his home and asked, "What about this union?'.' and whether Holmes would verify the names of those who were pushing it. Holmes disclaimed knowledge. Nelson then mentioned a few names, including Bailey and Maddux, and concluded by indicating his own concern as he declared that Holmes had the right to sign a union card but that he (Nelson) was worried about it. Employee Slimp testified that, about the end of August or the beginning of Sep- tember, Nelson approached him at his machine, asked how the Union was coming along, told him that Bailey was still passing out cards, and added that while he him- self did not think that the Union would be too bad, Mr. Harbison didn't see that. Leaving the interrogation for later consideration, I find no interference in the statement, without threat, that Harbison did not favor the Union; but the statement did indicate company hostility to union activity. A further remark which, if made by Nelson, would have constituted an unlawful threat of loss of benefits, was made by Slimp and was certainly no violation by the Company. Nelson concluded this conversation with a reference to possible loss to the employees, dependent not on company action but on the Union, again no violation. Employee Bailey testified that approximately 2 weeks after a call which he made on Harbison during the week of August 22, he was asked by Plant Superintendent Burns which employees the Union represented. Employee Maddux testified that sometime between August 29 and 31 Nelson asked him whether he had anything to do with the Union and why and how many cards had been signed. I find that about the end of August and the beginning of September 1960 Nelson questioned Holmes, Slimp, and Maddux concerning union activity at the plant as set forth supra; and that Bums asked Bailey which employees the Union represented. We have here no "context" i other than that provided by these six items of interroga- tion, and the evidence of Nelson's concern and company opposition. Such expres- sions of concern and opposition tend to cause employees to fear the consequences of union activity and membership; and I find that in such a context the interrogation was violative as constituting interference, restraint, and coercion proscribed by the Act. Voiced by the plant superintendent and his assistant, the questions were directed to four employees; the principle of de minimis is not to be applied here. B. The alleged violation of Section 8(a) (3) It is clear from a visit which Maddux and his father-in-law, Bailey (the latter appears to have been actively engaged on behalf of the Union and in concerted activities generally), paid to Harbison during the week of August 22 that the Company knew of Maddux's interest in concerted activities; the very visit and dis- cussion at that time constituted such an activity. Burns referred to this visit in a conversation with Bailey, and we have seen, supra, that Nelson connected Maddux with the union activities. I do not rely on Burns' denial that he knew of union membership or concerted activity by Maddux. But knowledge of concerted activity and even animus are not sufficient. Maddux testified that shortly before quitting time on Friday, September 2, 1960, Bums came to his machine while passing out paychecks to the employees, gave him two checks, the second being for work through that day, and said, "We hate to do this, but some people never learn." According to the General Counsel, the Com- pany was here discharging Maddux because of his union or concerted activities. Burns credibly denied that he had said what Maddux had attributed to him. He testified that he told Maddux that he was sorry but had to lay him off for lack of work; that there was a lack of work, Maddux's machine was shut down for that reason 1 Blue Flash Empress, Inc, 109 NLRB 591, 593 Cf. Livingston Shirt Corporation, et al., 107 NLRB 400, 403 HARBISON-FISCHER MANUFACTURING CO. 889 and not operated for more than 2 months thereafter except "semi-occasionally" and for short periods by a leadman for rush items, not for production operations as when Maddux worked on it; that Maddux was laid off, not discharged; and that, when he was needed again, on November 11, Burns called him to return. Consistent with Burns' testimony that Maddux was laid off, not discharged, is the latter's last timecard which, with a notation made ad confirmed in accordance with the Company's practice, contains the following, written contemporaneously by the payroll clerk: and by Burns: Layed [sic] off Lack work 9-2-60 JAB - There is no sufficient basis for crediting Maddux's testimony concerning his con- versation with Burns on September 2 with its suggestion of discriminatory intent to select him for discharge in the face of Burns' testimony concerning that conversation and the timecard notation. No more is the General Counsel's burden of proof met for a finding that Burns told Maddox that he was discharged even if the action taken was only a layoff. As for the possibility of discrimination in layoff, neither the allegation m the complaint nor Maddux's testimony suggests layoff; nor is there adequate proof in that connection. There was in the department one other machine like the one which Maddux operated; this was run by a man who had much greater seniority. Finally, while reference was made at the hearing to other jobs and hirings, it does not appear that there was an established and required "bumping" procedure or that Maddux should have been recalled before November 11 to do a different type of work. (In the absence of a finding of violation, we need not consider the cutoff date of November 11, when the Company called Maddux back to work but was told that he was not interested.) III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company, set forth in section II, above, occurring in con- nection with the operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that the Company has engaged in and is engaging in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Company, by interrogating employees concerning union activity, interfered with, restrained, and coerced its employees in violation of Section 8(a) (1) of the Act. I shall therefore recommend that the Company cease and desist therefrom and from any like or related conduct. For the reasons cited in the subsection entitled "The alleged violation of Section 8(a)(3)," I shall recommend that the complaint be dismissed insofar as it alleges the discriminatory discharge and refusal to reinstate Maddux. Upon the basis of the above findings" of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Lodge 1591, International Association of Machinists, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By interrogating employees concerning union activity, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 3. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 4. The Company has not engaged in unfair labor practices within the meaning of Section 8 (a)(3) of the Act. [Recommendations omitted from publication ]