Deerfield Screw Machine Products Co.

DEERFIELD SCREW MACHINE PRODUCTS CO., ETC. 175 Deerfield Screw Machine Products Company, and The Deerfield Manufacturing Company and Wade Green. Case No. 9-CA- 2494. December 19, 1962 DECISION AND ORDER On June 27, 1962, Trial Examiner David London issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report. Thereafter, the Respondents filed exceptions to the Inter- mediate Report, together with supporting briefs. 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 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner except as noted herein? ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner? 1 The Trial Examiner refers to Glenn Ball as the majority stockholder of Deerfield Manufacturing Company; the record shows that he is the "owner " Upon the entire record, we are in agreement with the Trial Examiner 's finding that The Deerfield Manu- facturing Company and Deerfield Screw Machine Products Company constitute a single employer within the meaning of the Act. 2 Interest at the rate of 6 percent per annum shall be added to the backpay to be com- puted in the manner set forth in Isms Plumbing it Heating Co , 138 NLRB 716. However, for the reasons set forth in his dissent in that case , Member Rodgers would not award interest. 3 The appendix attached to the Intermediate Report is hereby modified by adding the following immediately below the signature at the bottom of the notice: NOTE -We will notify the above -named employee , if presently serving in the Armed Forces of the United States , of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act after discharge from the Armed Forces. The appendix is further modified by deleting the words "60 consecutive days from the date hereof" in the next to the last paragraph of said notice and inserting in its place 11 the words "GO consecutive days from the date of posting . . . . INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge and an amended charge filed on January 18, 1962, and February 26, 1962, respectively, the General Counsel of the Board on March 16, 1962, issued a complaint against Respondents charging them with violations of Section 8(a) (1) and 140 NLRB No. 19. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) of the National Labor Relations Act, as amended, 29 U.S.C., sec. 151 et seq., herein called the Act. In substance, the complaint alleges that on various dates between August 1961 and January 2, 1962, Respondents engaged in conduct interfer- ing with, restraining, and coercing their employees in the exercise of rights guaranteed by the Act. It further alleged that on or about October 6, 1961, Respondent Deer- field Screw Machine Products Company laid off its employee Wade Green and there- after refused to recall said employee to his former position because said Respondent believed said employee to be engaged in activities in behalf of the Union, and that Respondent Deerfield Manufacturing Company refused to employ Green for the same reason. By their joint answer duly filed, Respondents denied the commission of any unfair labor practice. Pursuant to due notice, a hearing was held before Trial Examiner David London at Cincinnati, Ohio, on May 9, 1962, at which all parties were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Briefs filed by the General Counsel and Respondents have been duly considered. Upon the entire record, the briefs of the parties, and my observation of the wit- nesses as they testified, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENTS AND THEIR RELATIONSHIP Respondent Deerfield Screw Machine Products Company, hereinafter referred to as Deerfield Screw, is an Ohio corporation with its principal place of business located in Mason, Ohio, where it is engaged in the business of making parts manu- factured by screw machines. During the year 1961, in the course and conduct of its business operations, Deerfield Screw sold and shipped in excess of $50,000 worth of its products directly from its plant to points outside the State of Ohio. Respondent The Deerfield Manufacturing Company, hereinafter referred to as Deerfield Manufacturing, is an Ohio corporation with its principal office and place of business located in Mason, Ohio, where it is engaged in the business of job stamp- ing, assembly, and welding. During the year 1961, in the course and conduct of its business operations, Deerfield Manufacturing sold and shipped in excess of $50,000 worth of its products directly from its plant to points outside the State of Ohio. Deerfield Screw and Deerfield Manufacturing have been at all times herein men- tioned, and are now, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent Deerfield Screw was incorporated in 1957.1 The work done, and the products subsequently manufactured by that corporation, were, prior to that time, performed and manufactured by Deerfield Manufacturing. Following the organiza- tion of Deerfield Screw, all the employees of Deerfield Manufacturing formerly en- gaged in work "pertaining to the screw machine department . went over" to Screw Products. After Screw Products was formed, that corporation carried on its operations on the premises of Deerfield Manufacturing until sometime in 1958 when it moved to separate premises approximately 5 to 6 miles away. Glenn Ball is president and majority stockholder of both corporations, holding 80 percent of the stock in Deerfield Screw. Paul Horak is secretary of Screw Products and assistant secretary of Deerfield Manufacturing. Ella Shurtz is treasurer of Screw Products and assistant treasurer of Deerfield Manufacturing. Ball "controls the labor relations policy of Deerfield Manufacturing" and, with McDaniel, "participates in the direction and control of labor relations at Deerfield Screw." Both corpora- tions participate in the manufacture of the Trash Caddy Cart and each corporation sublets work to the other, albeit on a competitive bid basis. On the entire record I find and conclude that Deerfield Manufacturing and Deer- field Screw constitute a single employer within the meaning of the Act. H. THE LABOR ORGANIZATION Local Union No. 127-A of Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, hereinafter referred to as the Union, is and has been at all times material herein a labor organization within the meaning of the Act. IS T. McDaniel, its vice president, testified that it was "formed In July 1957" Its certificate of incorporation, however, was not filed until December 5, 1957. DEERFIELD SCREW MACHINE PRODUCTS CO., ETC. III. THE UNFAIR LABOR PRACTICES 177 On September 27, 1961, at a Board-conducted election among the production and maintenance employees of Deerfield Manufacturing , the Union was elected as their collective-bargaining representative? Prior to that time, Myrtle Green, the wife of Wade Green , the Charging Party herein , and employed by Deerfield Manufactur- ing, talked to other employees trying "to get them to vote for the Union." She engaged in that activity at the Deerfield Manufacturing plant before commencing work and during "the 15 minute break." She also attended union meetings to which she was driven by her husband. On September 30, she was appointed record- ing secretary of the Union. About a week before the election at Deerfield Manufacturing , Sherman McDaniel, vice president and general manager of Screw Products, asked Wade Green "what was going on over at the other place ." When Green answered that he did not know except that they were going to have an election , McDaniel asserted that the Screw Products operation "was too small , they didn't need a union there, they would have to close up. ... About October 1 , Mrs. Green had a lengthy conversation with George Anderson, Deerfield Manufacturing plant manager , in which he sought to convince her that there was no need for a union. In the course of the conversation , he complained to her that "everybody went against him for the Union, [that he] might just quit because it will be too much worry, . . . and that there are a lot more [of the employees that] are going to be worried before it is over with ." A few minutes later, he asked her who the members of the Union 's negotiating committee were. Though she first declined to give him that information , she did so a little later when he repeated the request. Anderson wrote the names on a slip of paper. Between the date of the election at Deerfield Manufacturing and October 6, there was considerable talk at the Screw Products plant about union buttons being brought to that plant by Wade Green , who was employed at that plant. Sam Truman, em- ployed by Respondents for about 12 years, was asked by McDaniel who was "doing all this hollering about this union." Truman replied: "Your guess is as good as mine. You know who is hollering. Wade [Green ] told you he was going to get two of those big buttons and put one on you and was going to wear one himself " It was during this same period that Wade Green and McDaniel were engaged in conversation during the course of which Green , while "talking about the Union com- ing over" to the Screw Products plant, said he was going "to bring the badge over." Standing nearby was employee Mollie Bunnell. Turning to her, McDaniel told Green to give the badge to Bunnell. On October 6, 1961, Screw Products laid off six employees due to lack of work Included in this number were Wade Green , who had been employed intermittently by Deerfield Manufacturing from June 30, 1952 , to December 29, 1958, when he was transferred to Screw Products . Also laid off on October 6 was Bunnell, em- ployed by Respondents since 1954 . Bunnell, however, found work elsewhere and apparently made no application to be recalled by Screw Products. Several weeks after Green was laid off , he called McDaniel and asked him whether he would be called back to work. When McDaniel answered that work was "slack," Green told him that he had heard that Screw Products was working overtime. McDaniel did not deny Green's statement , but merely "hawed around [without saying] anything else about it." Though both Green 's lawyer and his wife thereafter called to ask that Green be recalled , he has never been reemployed by either Re- spondent On January 2, 1962, he applied for, but was refused, employment by Deerfield Manufacturing. Notwithstanding Respondent's failure to employ or recall Green, Anderson ad- mitted that since January 2 , 1962, Deerfield Manufacturing has hired five or six new employees for "practically" the same work that Green performed when he was employed by that Company . McDaniel testified that Screw Products hired eight new employees since October 6, 1961, and that Green "could have done four of these eight jobs." While this admission by McDaniel was qualified by his observa- tion that Green could have filled any of these jobs "if his physical fitness had per- mitted," I find no merit to the qualification or defense suggested by this observation Indeed, in their joint posthearing brief, no contention is made, nor is there even any suggestion therein, that Green's alleged physical unfitness had anything to do with the failure to recall or employ him . There, the only reason assigned is that "Green had quit his employment at the Deerfield Manufacturing Company on several 2 See the Board's official decision and file in Case No . 9-RC-4457 ( not published in NLRB volumes ) of which I have taken official notice 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occasions." During the hearing, however, Respondents' counsel stated that Green "was laid off because his work was unsatisfactory" while McDaniel testified that "the only reason" for not recalling Green to Screw Products was "his physical fitness, unable to stand for a prolonged period of time, and to do any lifting." Significantly, though, no supervisor or employee was called to substantiate this conclusionary testi- mony by McDaniel. On the other hand, Green testified, without contradiction, that he performed all his tasks and never received any complaints concerning his work. Truman, employed by Respondents for 12 years, described Green as "a good worker, a fast worker." Ralph Revis, who worked alongside of Green from August 1 to October 6, 1961, never heard him complain about his work or "refuse to do any job" and saw him do the necessary lifting. Bunnell, who frequently worked alongside of Green, testified credibly she never heard him make any complaints to, or receive any complaints from, his foreman or supervisors and that she observed him do the necessary lifting. I am convinced that Green's physical condition had nothing to do with the failure to recall him. That alleged defense was seized upon only because of illness which kept Green away from work from January 13, 1961, to August 1, 1961. However, from the latter date to October 6, when he was laid off, Green performed his job without criticism or complaint. If his prior illness prevented him from performing all his tasks, no credible probative evidence was offered to support such a contention. Not only have Respondents failed to establish any of the inconsistent reasons now assigned for failing to recall or employ Green,3 but there is credible direct testi- mony in the record that Respondents' refusal was motivated by a belief that Green was engaged in union activities and their desire to discourage further union activities by their employees. Thus, McDaniel did not deny the testimony of Truman and Bunnell that he was made aware that Green was going to bring union buttons into the Screw Machine plant and wear one himself. And, it is undisputed that when Green applied for and was denied employment at Deerfield Manufacturing on Janu- ary 2, Anderson told him that he had been fired by McDaniel because the latter knew "everything" Green had done and about his "being up here in the alley with one of those union men." Nor was there any denial of Green's testimony that during the same conversation Anderson told him that, as distinguished from what had happened with respect to the Union at Deerfield Manufacturing, McDaniel had "set his foot down [at Screw Products] and stopped it before it got started over there," adding that that was what he, Anderson, "should have done." Bradley Knight, a truckdriver for a motor carrier, who, for a number of years, had made deliveries at the Screw Products plant, came to that plant in October after Green and Bunnell were laid off. Noting that these two employees were not on the premises, he encountered Supervisors Robert Pearce and Willard Freeman and asked what had happened to those two employees. Either Pearce or Freeman replied, Knight could not remember which one, that McDaniel had "lowered the hatchet." Ralph G. Revis, who was also laid off by Screw Products on October 6, but re- called 5 or 6 weeks later, testified that 2 or 3 days after he was recalled, he asked Pearce what the reason was for the layoff of October 6 and that the latter answered "it was probably on account of the Union." Pearce, though called as a witness by Respondent, did not deny the accusation. On the entire record and my observation of the witnesses as they testified, I find that Green was not recalled to work after October 6 by Screw Products, or employed by Deerfield Manufacturing, in order to discourage further union activities by him and other employees of Respondents. By their failure to do so, Respondents violated Section 8(a)( I) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with the operations of Respondents 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 Having found that Respondents have engaged in certain unfair labor practices, I recommend that they be required to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Because discrimina- a Their failure to do so supports the inference that Respondents believed that he was engaged In union activities and denied hint further employment believing they could thereby bring them to an end . Stokely Foods, Inc. v. NLRB., 193 F. 2d 736, 738; American Steel Foundries v. N L R B., 158 F. 2d 896, 900 (C.A. 7). DEERFIELD SCREW MACHINE PRODUCTS CO., ETC. 179 tion against an employee strikes at the heart of the Act, I shall recommend an order designed not only to prevent repetition of the specific unfair labor practices in which Respondents have engaged, but also to effectuate all the guarantees of Section 7 of the Act. Having found that Green was discriminatorily denied recall to his job at Deer- field Screw and employment at Deerfield Manufacturing, it is recommended that Respondents offer him immediate and full reinstatement to his former or substan- tially equivalent position at Deerfield Screw without prejudice to his seniority or other rights and privileges, and to reimburse him for any loss of pay he may have suffered by payment to him of a sum of money equal to the amount he would have earned as wages from the date of the discrimination to the date of the offer of reinstatement, less his net earnings during said period, the exact amount to be de- termined in compliance proceedings. Said backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. CONCLUSIONS OF LAW 1. Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and constitute a single employer within the meaning of the Act. 2. Local Union No. 127-A, Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees with respect to their union activities or affiliations, and by attempting to restrain such activities by threats or warnings of reprisals, Respondents have violated Section 8(a) (1) of the Act. 4. By failing to recall or employ Wade Green following his layoff, Respondents discriminated against him with respect to the hire and tenure of his employment and thereby violated Section 8(a) (3) and (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case , I recommend that Deerfield Screw Machine Products Company, and the Deerfield Manufacturing Company, their officers, agents, suc- cessors, and assigns, shall, jointly and severally: 1. Cease and desist from: (a) Coercively interrogating employees with respect to their union affiliations or activities, or attempting to restrain their union activities by threats or warnings of reprisal. (b) Discouraging membership in, or activities on behalf of , Local Union No. 127-A, Glass Bottle Blowers Association of the United States and Canada , AFL-CIO, or any other labor organization of their employees, by discriminating against them with respect to their hire or tenure of employment, or any term or condition of their employment. (c) In any other manner interfering with, restraining , or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Wade Green immediate and full reinstatement to his former or sub- stantially equivalent position , without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of Respondents' discrimination against him in the manner and to the extent set forth in section V, above, entitled "The Remedy." (b) Preserve and, upon request, make available to the National Labor Relations Board or its agents , for examination and copying, all payroll records , social security payment records, timecards , personnel records and reports, and all other records necessary for the determination of the amount of backpay due under this Recom- mended Order. (c) Post at their plants in Mason, Ohio, copies of the notice attached hereto marked "Appendix ." 4 Copies of the said notice shall be furnished to Respondents 4In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 681-492-63-vol 140-13 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Regional Director for the Ninth Region, and after being signed by a repre- sentative of each Respondent, shall be posted immediately upon receipt thereof and remain posted for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that the copies of the said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Intermediate Report, what steps each Respondent has taken to comply with its requirement .5 It is further recommended that, unless within 20 days from the date of the receipt of this Intermediate Report, the Respondents notify the said Regional Director that they will comply with the foregoing recommendations, the Board issue an order re- quiring Respondents to take the aforesaid action. In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT coercively interrogate our employees with reference to their union affiliations or activities, or attempt to restrain their union activities by threats or warnings of reprisal. WE WILL NOT discourage membership in Local Union No. 127-A of Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, or any other labor organization of our employees, by discriminating in regard to the hire or tenure of their employment or any term or condition of their employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all of such activities. WE WILL offer to Wade Green immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of our discrimination against him. All our employees are free to become, remain, or refrain from becoming or re- maining members of any labor organization. DEERFIELD SCREW MACHINE PRODUCTS COMPANY, Employer. By ------------------------------------------------ (Representative) (Title) THE DEERFIELD MANUFACTURING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date hereof and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Transit Building, 4th and Vine Streets, Cincinnati, Ohio, Telephone No. Dunbar 1-1420, if they have any question concerning this notice or compliance with its provisions.