Worth Manufacturing Co.

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -Monday had he not had a more pressing problem-namely , the telegram from the Union. The comprehensive brief submitted by Respondent Counsel Young stating that the burden is on the General Counsel to prove rather than the Employer to disprove .the presence of an antiunion motivation for discharging an employee (particularly .as set forth therein-pages 43 through 58), expresses my concept of this phase of the case. The General Counsel failed to carry this burden . In view of the entire record and all of the circumstances in this case , it is the opinion of the Trial Examiner that Scrima was discharged , and properly so, for cause. Accordingly, it will be recommended that the count in the complaint alleging discriminatory dis- charge under Section 8(a) (3) be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III , above, occurring in con- nection with the operations of the Respondent 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of the Act by acts of interference, restraint, and coercion, it will be recom- mended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Respondent is engaged in.commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sign-Pictorial & Display Union, Local 230, Brotherhood of Painters, Dec- orators & Paperhangers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By interfering with, restraining , and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Worth Manufacturing Company and International Molders and Foundry Workers Union of North America, AFL -CIO. Cases Nos. 16-CA-1403 and 16-RC-2730. November 17, 1961 DECISION AND ORDER On May 5,1961, Trial Examiner Max M. Goldman issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended that such allegations be dismissed, and that the Respondent had not engaged in conduct affecting the results of 134 NLRB No. 40 WORTH MANUFACTURING COMPANY 445 the election of August 26, 1960, and that such objection be overruled.' Thereafter the Respondent and the General Counsel filed exceptions to the Intermediate Report and the General Counsel filed a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions and modifications. The Trial Examiner found, inter alia, that the Respondent did not violate Section 8 (a) (3) and (1) of the Act by laying off certain em- ployees on June 2 and 10, 1960, or by terminating certain employees on June 28, 1960, on the ground that the General Counsel had failed to show that such actions were illegally motivated. We agree with the Trial Examiner, and the record supports his finding, that the' layoffs and terminations were based on economic considerations caused by a decline in the Respondent's business. However, we find that Re- spondent nevertheless violated Section 8(a) (1) of the Act at the time of the second layoff on June 10, 1960. On that occasion, Barnes, Re- spondent's president, told the employees that the work was slack and that there would be recalls if the work picked up; that in the past slack periods he had borrowed money to build inventories and keep the plant going but under the existing conditions he would not stick his neck out any longer, and that it seemed that the employees did not appreciate his efforts. The above statement is not, in and of itself, sufficient to overcome the evidence of economic justification for the accompanying layoffs. and terminations. However, in view of the fact that it was made at a, time when the employees and the Employer were aware of the Union's. organizational activity, and that the layoffs immediately followed on the heels of the announcement, we find that by such statement the, Respondent interfered with, restrained, and coerced its employees in' the exercise of the rights guaranteed in Section 7, thereby violating Section 8 (a) (1) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10 (c)S of the National Labor Relations Act, as amended, the National Labor i As no exceptions were taken to the Trial Examiner's recommendation that the Peti,- tioner's objection to the election be overruled , we adopt his recommendation , pro forma.. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board hereby orders that the Respondent, Worth Manu- facturing Company, Fort Worth, Texas, its officers, agents, successors, .and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Molders and Foundry Workers Union of North America, AFL-CIO, or any other labor organization of its employees, by canceling wage increases or in any other manner discriminating against its employees in regard to their hire or tenure of employment or any term or condition of employment. (b) Interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act by engaging in the conduct set forth in the section of the Intermediate Report en- titled "The conclusions" and in this Decision. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist a labor organization, including the above-named labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities, except to the ex- tent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole R. J. Eakin and James Hill by payment to them of an amount equivalent to the wage increases they would have re- ceived but for the discrimination against them. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (c) Post at its plant at Fort Worth, Texas, copies of the notice at- tached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily 2In 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 Older " WORTH MANUFACTURING COMPANY 447 posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Sixteenth Region, in writ- ing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the objection to the election, filed in Case No. 16-RC-2730, be, and it hereby is, overruled. 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 National Labor Relations Act, us amended, we hereby notify our employees that : WE WILL NOT discourage membership in International Molders and Foundry Workers Union of North America, AFL-CIO, or in any other labor organization of our employees, by canceling wage increases, or in any other manner discriminating against them in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT (1) question our employees us to union activities, (2) threaten to shut down the plant rather than deal with a union, and (3) threaten employees with reprisals if a union is successful in organizing the plant. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self- organization, to form, join, or assist International Molders and Foundry Workers Union of North America, AFL-CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL immediately make whole R. J. Eakin and James Hill for the wage increase they lost by reason of our discrimination against them. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization, including International Molders and Foundry Workers Union of North Amer- 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ica, AFL-CIO, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WORTH MANUFACTURING COMPANY, 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 STATEMENT OF THE CASE The complaint proceeding against Worth Manufacturing Company, herein also called the Respondent or the Company, involves Section 8 (a) (1) and (3) allegations, and was initiated by International Molders and Foundry Workers Union of North America, AFL-CIO, herein also called the Charging Party or the Union. This pro- ceeding was consolidated at the hearing with the above-entitled representation pro- ceeding pursuant to a Board order dated October 31, 1960, which directed that the Trial Examiner make findings of fact and recommendations concerning issues as to conduct affecting the results of an election raised in the representation proceeding. The hearing was conducted on November 1 and 2 , 1960, at Fort Worth, Texas. Only the Respondent filed a brief. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following. FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Texas corporation, is engaged at Fort Worth, Texas, in the manufacture of aluminum fence castings and related products. During the past 12 months, which is a representative period, the Respondent shipped products to points outside the State valued in excess of $50,000, and purchased raw materials which have been shipped to the Respondent from points outside the State valued in excess of $50,000. It is found that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Molders and Foundry Workers Union of North America, AFL-CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues The issues presented are whether the Company engaged in specified acts and conduct in violation of Section 8(a) (1), discriminated against certain employees by layoffs, discharges, and cancellation of wage increases and paid vacations in violation of Section 8(a) (3) of the Act, and engaged-in certain conduct affecting the results of an election conducted on August 26, 1960. B. The events The Company is a family owned corporation with W . R. Barnes as president and principal stockholder . George Larkins is the plant foreman and reports directly to Barnes. Larkins has direct supervision over the production , maintenance, and ship- ping employees The complement of employees in the last few years numbered from 6 to 45 . Larkins makes effective recommendations to Barnes concerning the hire and discharge of employees and issues orders and directions to employees. Donald Roberts is vice president of the Company and Barnes' son-in-law. Roberts is pri- WORTH MANUFACTURING COMPANY 449 marily concerned with sales, customer relations, and expediting the shipping, and ordinarily has no responsibility in connection with the employees. During a period when Larkins was in the hospital due to a heart attack, Roberts took Larkins' place. Contrary to the Company's position, it is found that as Roberts is an officer of the corporation and has acted for Larkins in his absence, that the Company is responsible for Roberts' conduct. On May 19, 1960, the Company received a letter from the Union dated May 18, in which the Union declared that it represented a majority of the Company's em- ployees, requested recognition, and stated that it was on that day filing a representa- tion petition with the Board's Regional Office at Fort Worth. About this time employee Don Flory, understanding that the Union's petition was about to be filed, told Larkins, his father-in-law, that the men were trying to get a union at the plant. Larkins stated to Flory that Barnes would not have a union at his plant and that Flory had better get out and find another job. On May 19, the day the Company received the Union's letter referred to above, Roberts telephoned employee Brogden after work at home, Roberts asked Brogden in this conversation whether he knew anything about the Union. Brogden replied that he thought the Union would go over and Roberts declared to Brogden that he would be sorry.' Barnes had been out of town on a business trip beginning about Saturday, May 14, and returned late in the evening of Thursday, May 19. When Barnes returned to town he telephoned Larkins that night and instructed Larkins to post a notice at the plant, the next day, Friday, May 20, announcing the suspension of paid vacations. Larkins posted a notice the next day in accordance with Barnes' instructions. Prior to leaving on this trip Barnes had told Larkins that the employees could take vaca- tions a few at a time if they were caught up on their work. When Barnes appeared at the plant on May 20, an office employee handed Barnes the Union's letter dated May 18, in which it sought recognition. A few days after Barnes returned from his business trip, according to Larkins' admissions, Barnes told Larkins that he had canceled a pay raise he had intended to give employees R. J. Eakin and James Hill. Barnes testified that while he had been on the business trip he had come to the conclusion that the business outlook was bad and that he had to cut costs wherever possible. Barnes, however, also testi- fied that when he came back from the trip and discovered what he had at the plant everyone lost raises and that no individual had been named .2 Without being able to fix the point of time, Hill testified credibly that Roberts had stated that Barnes had heard about the Union and dropped the pay raise. After the notice canceling the vacations had been posted, employee Bobby Rey- nolds had conversations with Roberts, Larkins, and Barnes. In these conversations Roberts stated that the Company would never go union as it would close the plant before doing so and that the men would only be hurting themselves; Larkins stated that the plant would never go union; and Barnes stated in Larkins' presence that he, Barnes, would close the gates before he let the plant go union .3 On May 23, the Company received the Union's letter, dated May 20, listing 21 of the Respondent's employees it stated were members of the Union and requesting that their rights under the Act be protected. On June 2, the plant shut down and all the employees were laid off. Barnes told the employees the layoff was due to economic reasons and that the men would be recalled as soon as they were needed. Beginning June 6 some of the employees returned to work. On June 10 there was i Roberts admitted that on the occasion of the Company's receiving the letter from the Union that he had had substantially the conversation-reported above with Brogden but denied stating to Brogden that Brogden would be sorry. Upon the basis of the Trial Examiner's observation of the witnesses, Brogden's testimony is credited and Roberts' denial is not credited Roberts' denials will hereafter not be set forth 2 Barnes' testimony reads: Q. (By Mr SEARS ) Do you recall any time having a conversation with Mr Larkins' A When I came back off my trip, I came through there I had in my mind going up (sic] several people that needed raises when I came hack When I discovered what I had up there, everybody lost raises. Business wouldn't justtfy it There was no individual specified 3 These findings are based upon Reynolds' testimony whom the Trial Examiner regards as a credible witness Larkins and Barnes denied making the above statements and Larkins also corroborated Barnes As the Trial Examiner does not view Larkins and Barnes as credible witnesses, their denials are not credited and will not hereafter be set forth 630849-62-vol. 134--30 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD another layoff of the Company's employees. On this occasion Barnes told the men that the work was slack at the time and that there would be recalls if the work picked up. Barnes further stated that in the past slack periods he had borrowed money to build inventories and kept the plant going but under the existing condi- tions he would not stick his neck out any longer, and that it seemed that the em- ployees did not appreciate his efforts. In a conversation with Hill and in the presence of employee Hamilton, Roberts stated that if it had not been for the Union no one would have been laid off. About June 13, the Company resumed production with a complement of 13 men, about half the number of men it had employed in May. On June 28, the Company sent letters to 10 of its employees who had been laid off notifying them of their termination. C. The conclusions 1. Interference, restraint, and coercion It is found .that the Company engaged in interference, restraint, and coercion in violation of Section 8(a) (1) of the Act by (1) Larkins' declaration to Flory that Barnes would not have a union at his plant and Flory had better quit the Com- pany's employ, (2) Roberts' inquiry of Brogden as to union activities and Roberts' statement to Brogden that he would be sorry if the Union was successful in organiz- ing the plant, (3) Robert's threat to Reynolds that the Company would never go union as it would shut down before doing so, and .(4) Larkins' declaration to Reynolds that the plant would never go union. 2. The discrimination The defense to the allegations of discrimination by the layoffs of May 2 and 10, the termination of June 28, and the cancellation of certain wage increases and paid vacations is economic necessity. According to Barnes, while he was on the business trip during May 14 to 19, he called upon customers and found that they were price conscious, that one of his oldest customers had purchased a competitor's castings at a lower cost than what Barnes could produce the castings, and that a substantial customer, Montgomery Ward, still had 90 percent of the December 1959 order unsold and there was no expectation of a 1960 order. Further, that he did not obtain any orders while on the trip, and had determined that the usual seasonal upturn in April, May, and June was not materializing. A summary of the Company's records shows a reduction of employees from 24 to 13 with the week ending June., 17, and that there was no increase thereafter in the number of the Company's employees. The 1960 monthly sales records show that a decline which started in April with a minor variation in August continued during the entire period and thereafter. It also appears that purchases of raw materials in 1960 were at a reduced average monthly rate beginning in May when compared with the months thereafter. The Company's inventory at the end of August 1960 was about half the amount it was a year earlier. When production was resumed by June 13, with 13 men, about half of the prior complement, men were selected for work so far as was practicable on a seniority basis. Thereafter, except for recalling a man who had been terminated on March 28 to replace an employee who had quit, the Company did not hire any employees. It does not appear that Barnes hired any employees for work at a new facility built near the plant involved, which new facility is expected to produce on an automated basis about 15 high volume castings which can no longer be produced competitively at the plant involved. The Company as found above, interfered with, restrained, and coerced its em- ployees by, among other methods, threatening to shut down the plant rather than have a union. It has also been found that when Barnes discovered that he had a union at the plant he explained that everyone lost raises; that Roberts reported to Hill that Barnes had heard about the Union and had dropped the pay raise, and if it had not been for the Union no one would have been laid off; that Barnes declared to Reynolds that he would close the gate before he would let the plant go union; and Barnes stated to employees,at the time of the June 10 layoff that it seemed that the employees did not appreciate his past efforts in borrowing money to keep the plant going during slack periods by building inventory, but that under existing condi- tions he was not going to undertake that risk. It thus appears that the considerations-the declarations of an intent to dis- criminate as against the exploitation of a declining economic situation as it arose- are closely balanced. In view of these circumstances of close balance, the Trial Examiner is of the opimon that the General Counsel has not sustained his burden WM. T. BURNS INTERNATIONAL DETECTIVE AGENCY, INC. 451 in establishing that the layoffs and the terminations were illegally motivated and it will be recommended that the complaint be dismissed in these respects. As it does not appear that Barnes had knowledge of the Union at the time he ordered a notice posited canceling the vacations, it will be recommended that this allegation be dismissed as well. In view of Barnes' admission that after he returned from his trip he discovered what he had at the plant and that everyone lost raises, it is found as alleged that the Company violated Section 8 (a) (3) of the Act by denying pay raises to Eakin and Hill because of the self-organization of the employees. 3. The conduct affecting the results of the election Under a Board order in Case No. 16-RC-2730 , dated October 31 , 1960, the Trial Examiner was directed to resolve issues raised by a certain objection to conduct affecting results of an election held August 26, by making findings of fact and recommendations as to ,the disposition of the issues raised relating to conduct alleged to have been engaged in by Roberts and Larkins a few days prior to the election. As no evidence was introduced as to Larkins' and Roberts' conduct at the times involved, it is recommended that this objection be overruled. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent as set forth in section III, above, occurring in connection with the operations of the Respondent 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. V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8 (a) (1) and (3) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Molders and Foundry Workers Union of North America, AFL- CIO, is a labor organization within the meaning of the Act. 2. By discriminating in regard to pay raises as to R. J. Eakin and James Hill, thereby discouraging membership in the Union, the Respondent engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 3. By engaging in the conduct set forth in section C, 1, the 'Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not discriminated regarding vacations, layoffs, or dis- charges as alleged. 6. The Respondent has not engaged in conduct affecting the results of the election of August 26, 1960. [Recommendations omitted from publication. ] The William J. Burns International Detective Agency, Inc. and Independent Union of Plant Protection Employees . Case No. RC-11296. No'venaber 17, 1961 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Robert E. Harding, hearing 134 NLRB No. 36.