House Manufacturing Corp.

HOUSE MANUFACTURING CORPORATION 7 anything in the nature of a prima facie case that the discharge of Wardlaw was unlawfully motivated." In sum, I find that the Respondent did show by substantial evidence that the assigned basis of Wardlaw's discharge did have a tangible basis and was not a mere pretext for discrimination . Indeed, the evidence upon which Martino based his conclusion that Wardlaw had in fact engaged in profanity was predicated upon much the same evidence in which the Trial Examiner reached the same conclusion. Although, as we have seen, there is evidence that other employees on occasions used profanity and were not discharged for it, the evidence does not establish that Martino was aware of such profanity or that he would tolerate it if it had come to his atten- tion. Quite to the contrary, the evidence affirmatively establishes that Martino was opposed to the use of profanity in the plant.12 To be sure, the case is not free from doubt. The Trial Examiner has particular misgivings when the degree of the penalty exacted is taken into account. Consider- ing the fact that Wardlaw was a 13 -year Respondent employee , Respondent might well have taken some disciplinary action less severe than the extreme penalty of discharge. While the degree of the penalty may properly be considered as a part of the evidence as a whole, the rule generally applicable has been stated, in the language of the Eighth Circuit Court of Appeals, as follows: In considering the propriety of the discharges the question is not whether they were merited or unmerited , just or unjust, nor whether as disciplinary measures they were mild or drastic. These are matters to be determined by the management , the jurisdiction of the Board being limited to whether or not the discharges were for union activities or affiliations of the employees.13 Upon the record as a whole, and on all the evidence , I find and conclude that the General Counsel has failed to establish by a preponderance of the evidence that the discharge of Wardlaw was discriminatorily motivated . Accordingly, I shall recom- mend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. The Respondent is and has been engaged in commerce herein within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning the Act. 3. The Respondent has not complaint. at all times material of Section 2(5) of violated Section 8 ( a)(3) and ( 1) as alleged in the [Recommendations omitted from publication.] 11 See Alumatic Windows, Inc., 131 NLRB 1210 12 It might be added that this appeared to be in keeping with Martino's character as this Trial Examiner observed it on the stand "N L R .B v. Montgomery Ward & Co., 157 F 2d 486 (C A 8 ) ; see also Osceola County Co-Operative Creamery Association v N L R B , 251 F. 2d 62 ( C A 8), and cases cited. House Manufacturing Corporation and Lumber and Sawmill Workers Local Union 2882, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case No. 20-CA-2042. January 3, 1962 DECISION AND ORDER On October 6, 1961, Trial Examiner James R. Hemingway issued his Intermediate Report on the above-entitled proceeding, finding that the Respondent 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 Intermediate Report 135 NLRB No. 3. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations 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 made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions 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 Respondent, House Manufac- turing Corporation, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interfering with, restraining, or coercing employees in the ex- ,ercise of the right to self-organization, to form labor organizations, to join or assist Lumber and Sawmill Workers Local Union 2882, United Brotherhood of Carpenters and Joiners of America, 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 mu- tual aid or protection, or to refrain from any or all such activities, -except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, 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) Post at its plant in Schellville, California, copies of the notice attached hereto marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after having been signed by an authorized representative of the Re- spondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by In 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." HOUSE MANUFACTURING CORPORATION the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Twentieth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. 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, as amended, we hereby notify our employees that : WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Lumber and Sawmill Workers Local Union 2882, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership. in a labor organization as a condition of employment, as author- ized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. All our employees are free to become, to remain, or to refrain from becoming or remaining members of Lumber and Sawmill Workers Local Union 2882, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization. HOUSE MANUFACTURING CORPORATION, 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 alleges a violation of Section 8(a)(1) of the Act. The Respondent in its answer denies the alleged unfair labor practices . A hearing was held in Sonoma, California , on July 13, 1961, before the duly designated Trial Examiner. At the close of the General Counsel 's case, the Respondent made a motion to dismiss, which was granted in part , as hereinafter explained, over objection of the General Counsel. At the conclusion of the hearing , the General Counsel made a motion to conform the pleading to the proof and the motion was granted without objection. At the request of the General Counsel and the Respondent , a date was fixed for the 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filing of briefs with the Trial Examiner. Briefs were received from them and have been considered. From my observation of the witnesses, and from the entire record in the case, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, House Manufacturing Corporation, is a wholly owned subsidiary of Hudson Engineering Corporation, a Delaware corporation, herein called Hudson. At all times material herein, the Respondent has been engaged in the business of manufacturing prefabricated cooling towers at Schellville, near Sonoma, California. In the operation of its business, the Respondent annually sells goods and services valued in excess of $50,000 to customers located outside the State of California. The Respondent concedes the jurisdiction of the Board. H. THE LABOR ORGANIZATION INVOLVED Lumber and Sawmill Workers Local Union 2882, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, herein called the Union, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Allegations of the complaint The complaint alleges in three paragraphs instances of alleged violations of Section 8 (a) (1) of the Act The first allegation is that on or about March 27 and at various unknown dates in March and April 1961, the Respondent by its officers, agents, representatives, and particularly by its plant manager, W. C. Berry, interro- gated employees concerning their union membership activities and desires and warned employees that it would close its operations if the employees became mem- bers of the Union The second paragraph alleges that the Respondent, by its officers, agents, and representatives, and particularly Theron Johnson, informed various employees that the Respondent would close its operations if the employees became union members. The third paragraph alleged that the Respondent adopted and rati- fied Johnson's statements in the presence of an employee on April 19, 1961. B. Statements of Superintendent Berry Following an organizational campaign, the Union on March 24, 1961, filed with the Board a petition for certification. The date of receipt of a copy of this petition by the Respondent is not in evidence, but presumably it was received within a day or two thereafter Following receipt of this petition, which Superintendent William Berry testified was his first notice of the union drive, when Mel Hein, a machine man, came to Berry's office on a matter of business, Berry asked Hein if he would fill him in on the Union. Berry testified that he told Hein that he had received the petition and wanted to know if he knew about it. Hein said he knew about as much an anyone else A day or two later, according to the testimony of Theron Johnson, the layout man, in the fabricating shop, after Berry had discussed something about the job with Johnson, Berry asked what Johnson "knew about the petition that had gone around." According to Berry, he asked Johnson if he had heard about the Union among the employees and commented that it was a surprise to get the petition. Johnson said he knew nothing about it. On about February 28 or 29, when Frederick Harrah, the plant mechanic, was in Berry's office, according to Berry, he asked what Harrah had heard about the petition. Harrah testified that the question was whether or not Harrah had heard talk about the Union on the job.' He testified that his answer had been that he had not (although he had, in fact, participated in the union activity), and that Berry had then said, "The boys don't know what they was getting into by having the union represent them," or "The men didn't know what they was doing to have the union to represent them " According to Harrah, in February or March 1961, before the foregoing conversa- tion, Berry was, one day, helping him pull some lumber and, during a break, "some- thing was said about the union, and he [Berry] said one time in Louisiana they had fired the whole crew; because they didn't need a helper here and the grunt 2 there, 1 Harrah testified that he had not seen the petition before the hearing. 2 This is exactly as shown in the record. No motion was made to correct It. HOUSE MANUFACTURING CORPORATION 11 and you couldn't run an outfit with the union-more or less with their fingers in- telling you how to run it." Berry testified that he did not recall telling Harrah that the company, referring to Hiadson, had discharged a whole crew one time in Louisiana because they had gone union. He conceded, however, that he might possibly, at some time, have told that to an employee of the Respondent, and at one point in his testimony he said that he thought he remembered an incident where he had told an employee that, but he could not remember which employee Although Harrah (who had been laid off a couple of weeks or so after Berry had questioned him about whether or not he had heard talk about the Union) was obviously dis- gruntled and biased as a witness, his testimony was sufficiently corroborated by Berry to warrant a finding that Berry did make a statement about the discharge by Hudson of a crew which had gone union, and I so find.3 Berry also testified that he had told Harrah that the "Company" did not want to go into the Union, although he could not remember when. At the time when Berry was asking Harrah if he had heard about the Union or the petition, Berry was making arrangements to fly to Houston, Texas, to visit Hud- son, and thereafter he was away for 4 days. Within a couple of weeks after his re- turn, he laid off six employees, Harrah being one. Following this layoff, on April 19, 1961, Glyn Cantrell, International representative of the Union, accompanied by Harrah, visited Berry at his office to ask the reason for the layoff. Berry said that he had had orders from Houston in February to lay off men because of economic reasons. During their conversation, in response to Cantrell's questioning, Berry told Cantrell that he did not think the Company would go union.4 Cantrell asked what the Re- spondent would do if the men voted to go union. Berry gave no answer. Cantrell asked Berry if the employees were aware of how the Respondent felt about the Union, and Berry answered that he thought they knew. During the visit, Berry said he had nothing against the men, had not laid them off because of the Union, and would hire them back on a preferential basis if they could do the work. The General Counsel argues that Berry's statement about the discharge of a crew for going union constituted an implied threat and that the questioning of Harrah about the Union thereafter was coercive in character. It is conceivable that, at the time when Berry was talking about the Louisiana incident, he was not aware of the Union's attempt to organize the Respondent's employees and that he did not tell Harrah of the incident specifically to discourage this particular organizational drive of the Union. However, he was informing Harrah of the fact that this was the parent company's method of expressing disapproval of the organization of its em- ployees by a union. The immediate effect of such information on employees, whether or not there was a current union drive, would be to restrain them from taking any steps to organize then or in the future .5 And this would be true whether or not Hudson (which, as sole owner of the Respondent, would determine its labor policies) had in fact discharged employees because they had organized or sought to do so.6 Such a story, fabricated or not, would not be likely to die with the first employee to hear it, nor would Harrah be likely to forget it when Berry questioned him about his knowledge about the Union or the petition. The natural reaction of Harrah or any other employee who had been told what Harrah had been told, would be to infer that the question of his knowledge had been asked in order to set in motion countermeasures to the Union's organizational efforts, including termina- tions of employees. A mere expression of disapproval of a union along with the 3 Subsequently, on examination by Respondent's counsel, when asked, "Did you ever at any tine tell anyone that Hudson Engineering fired its employees in Louisiana for union activity In endeavoring to or going Union," Berry answered, "No " On the face of it, this answer appears to be a flat contradiction of his previous testimony, unless Berry was differentiating between "an entire crew" and "its employees " I give this denial no weight in view of Berry's previous admissions Respondent's counsel also asked Berry whether or not he had any information or knowledge concerning a fact or rumor that anyone was fired by Hudson in its activity in Louisiana because the employees voted to go union, and Berry answered, "No " Berry appeared to me to answer questions as though he had been cautioned not to volunteer information 4 Berry testified that he said the Respondent would not go into the Union unless forced to do so In view of his refusal to answer Cantrell's next question, I doubt that Perry added any statement about being forced into the Union. and I find to the contrary 5 See Star Cooler Corporation, 129 NLRB 1075; Jamel, Inc, 129 NLRB 1191, Borg- Warner Controls, Borg-Warner Corporation, 128 NLRB 1035, 1040-1042 Held to have been coercive was a supervisor's statement to an employee that the failure to recall a ]aid-off employee "could . . possibly have something to do with union activity" Baig-Warner Controls, Borg-Warner Corporation, 128 NLRB 1035, 1041. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD questioning of an employee can have a coercive effect? Although Berry's questions, standing alone, would not appear to be coercive on their face, I find that they should be viewed in combination with the expressions of disapproval and the story of the discharge of employees by the Respondent's owner for organizing or attempting to do so at another time and location, and, as so viewed, I find Berry's verbal acts to assume a coercive character. Under the circumstances, therefore, I find that, by Berry's statement and questioning, as related by Harrah, the Respondent did inter- fere with, restrain, and coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act. Berry's statement to Cantrell, in the presence of Harrah, on April 19, 1961, after Harrah's layoff, indicating that the Respondent would not go into the Union (i.e., deal with it) and that he thought the employees understood the position of the Respondent, confirms my conclusion that Berry did tell Harrah what he did in previous conversations, as found above, in order to let employees know the Re- spondent's disapproval of the Union and that Berry was satisfied that word had gotten around to that effect. Although Harrah was not, at this time, actually em- ployed by the Respondent, he was in the position of an applicant for employment 8 since Cantrell was seeking to induce Berry to rescind the layoff of the six men who had been laid off and to select employees for the layoff on the basis of seniority. Furthermore, Berry conditionally consented to reemploy the laid-off employees on a preferential basis, so Harrah was in the position of a potential future employee. Berry's statement that he did not think the Respondent would recognize or deal with the Union (at least this was the effect of his words), sounded to Cantrell like a rejection of the collective-bargaining process. For this reason, Cantrell tried to pin Berry down on it, but Berry refused to answer what the Respondent would do if the employees voted for the Union to represent them and if the Respondent did not want to go union. Since Berry was the top managing agent of the Respondent at the Schellville plant, he was the one with whom the Union, if certified, would deal. Under the circumstances, I find that Berry's qualification of his statement with, expressions such as "I don't believe" or "I don't think" did not serve to make his statement an expression of opinion rather than a statement of intention, particu- larly when considered in the light of Berry's refusal to answer a more specific question. I conclude, therefore, that by Berry's statement in the presence of Harrah of a rejection of the collective-bargaining process, the Respondent has interfered with, restrained, and coerced employees in the exercise of -the rights guaranteed in the Act.9 C. Explanation of rulings made at hearing On motion of the Respondent, made at the conclusion of the General Counsel's case, to dismiss the complaint as to alleged violations through statements of Theron Johnson, I granted the motion. Whether or not the Respondent was responsible for statements made by Theron Johnson, the Respondent's layout man, depended on proof that he was a supervisor within the meaning of the Act or that his statements were adopted by the Respondent, through the person of Berry. Johnson had been employed as a layout man for Hudson in Houston. Texas, before taking a job with the Respondent in Schellville. He had been invited to take the job in Schellville by Berry, who had known him in Houston when Berrv himself was employed there. Although Berry sought to get other employees of Hudson to move to California, they had declined. Johnson was a senior employee of Respondent, having started in 1959 when the plant commenced operations. He not only did layout work but also operated a saw, a drill, and other tools He was the only one in the plant other than Berry who could read blueprints, and he knew more about the work than the other employees. There was a production line in the plant, and Johnson showed employees how to do their work, and if they asked him what the next job was when they were through he would tell them. Johnson would tell Berry if one of the employees was not doing, his job right, but there is no evidence that it wac his duty to do so (Berrv testified that he had not asked Johnson to do so) or that Berrv relied upon Johnson's reports in laving, off or disciplining employees because of poor work The Resnondent de- nied that Tohnson had any authority to hire, fire. discipline, or move employees from one job to another. whether or not Berrv was present. Berrv was seldom absent for any great length of time. The one time when he went to Houston for 4 days, he Pavsmore Sapvly Company 128 NLRB 50 8 Sre .Tamel, Inc , supra 93fichael Benevento and John Benevento d/h/a 3T Benevento Sand h (7ra,el Co. 131 NLRB 358: Adhesive Products Corporation. 117 NLRB 265 ' ISLAND CONSTRUCTION CO., INC., ETC. 13 left the office manager in charge. Johnson had no authority to shift employees from one job to another unless specifically directed to do so by Berry, and he had no authority to hire or fire. Although he criticized employees for poor work, he had no authority to discipline them. In a prehearing statement he made for the,Board, he characterized himself as a leadman. He was paid on an hourly basis. On this evidence, I decided that Johnson was not a supervisor within the meaning of the Act. Although Johnson spoke openly to other employees about the subject of the Union and indicated his disapproval and told the employees that they could have done better by going direct to Berry rather than going into the Union and that the Company would not buy a package deal from the Union and would close down and do the work in Houston first, there is no evidence that Berry authorized Johnson to make these statements, that he approved of his making the' statements, or even knew that Johnson had- made them. There is no basis, for inferring an authorization or, adoption of Johnson's words from anything said by Berry on April 19, 1961, as alleged in the complaint. 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. ' , Upon the basis of, the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW, 1. The- Respondent -is' engaged in.commerce 'within the meaning of Section 2(6) and (7) of the Act. 2: The Union is a labor organization within the meaning of Section 2(5) of the Act. 3 By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of'the Act, the Respondent has engaged in and is en- gaging 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.] Island Construction Co., Inc., and/or Pearl Harbor Heights Developers, a Joint Venture I and ILWU Local 142 (Building, Supply, Construction and Maintenance Division ), Petitioner. Case No. 37-RC-731. January 3, 1962 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before John M. Dyer, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and arehereby affirmed. 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 [Chairman McCulloch and Members Rodgers and Leedom]. Upon the entire record in this case the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 1 The Employer's name appears as corrected at the hearing. 135 NLRB No. 1.