The Timken-Detroit Axle Co.

In the MATTER OF THE TIMKEN-DETROIT AXLE COMPANY, WISCONSIN AXLE DIVISION, OSHKOSH, WISCONSIN and UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL No. 291 Case No. C-755.-Decided February 9, 1939 Axle and Other Products Manufacturing Industry-Interference, Restraint, or Coercion: charges of violation of Section 8 (1), dismissed-Discrimination: charge of, in regard to hire and tenure of employment , not sustained ; reason given for discharge not without equivocation ; absence of background of unfair labor practice ; willingness to arbitrate discharge. Mr. Morris L. Forer, for the Board. Miller, Mack do Fairchild, by Mr. Leon F. Foley and Mr. James D. Porter, of Milwaukee, Wis., for the respondent. Mr. Max Raskin, of Milwaukee, Wis., for the United. Mr. Lloyd D. Mitchell, of Oshkosh, Wis., for William J. Eichorn. Mr. Harry Brownstein, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Automo- bile Workers of America, Local No. 291, herein called the United, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twelfth Region (Milwaukee, Wisconsin), issued and duly served its complaint, dated March 4, 1938, against The Timken-Detroit Axle Company, herein called the respondent, Wisconsin Axle Division, Oshkosh, Wisconsin, alleging that then respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint and the notice of hearing thereon were duly served upon the respondent and the United. The complaint alleged, in substance, that the respondent discharged and refused to reinstate William J. Eichorn, for the purpose of dis- couraging membership in the United, and did interfere with, restrain, and coerce its employees in the exercise of the rights guaranteed them by Section 7 of the Act. The respondent, on March 10, 1938, 11 N. L. R. B., No. 18. 91 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed with the Regional Director a motion to strike certain portions of the complaint, ruling on which was reserved for the Trial Exam- iner. On March 11, 1938, the respondent filed an answer in which- it denied generally all material allegations of the complaint. Pursuant to the notice, a hearing was held in Oshkosh, Wisconsin, on March 17 and 18, 1938, before Conn Cohalan, the Trial Examiner duly designated by the Board. The Board, the respondent, and William J. Eichorn were represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence-bearing upon the issues was afforded all parties. At the, commencement of the hearing, upon motion of the Board, certain portions of the complaint were deleted, and the respondent thereupon withdrew the aforesaid motion to strike. At the close of the hearing, counsel for the Board moved that the pleadings be conformed to the proof adduced at the hearing. The motion was granted. • During the4, course of the hearing, the Trial Examiner made several other rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Pursuant to permission granted by the Trial Examiner, briefs were filed with the Trial Examiner on behalf of the respondent and William J. Eichorn. Thereafter, the Trial Examiner filed his Inter- mediate Report, copies of which were duly served on all parties. He found that the respondent, in discharging and refusing to rein- state William J. Eichorn, had not engaged "in unfair labor practices affecting commerce within the meaning of Section 8 (1) or (3) and Section 2 (6) and (7) of the Act, and recommended that the com- plaint be dismissed. On July 19, 1938, the United filed exceptions to the Intermediate Report. On November 10, 1938, pursuant to notice duly served upon the respondent, the United, and William J. Eichorn, a hearing was' had before the Board in Washington, D. C., for the purpose of oral argument. The respondent and the United' appeared by counsel, and presented oral argument to the Board. The Board has considered the exceptions of the United to the Intermediate Report, and in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, The Timken-Detroit Axle Company, is a corpo- ration organized under the laws of the State of Ohio, with its prin- THE TIMKEN-DETROIT AXLE COMPANY ET AL. 93 cipal offices in Detroit, Michigan. It is engaged in the manufacture of rear axles and transmissions for busses, trucks, and tractors, and automatic oil burners, boilers, furnaces, water heaters, fire hydrants, gate valves, sluice gates, and air-conditioning units. The respondent owns, operates, and maintains a plant in Oshkosh, Wisconsin, known as the Wisconsin Axle Division, which is the plant involved in the present proceeding. In 1937, the Wisconsin Axle Division purchased and received 65 per cent of its raw materials, consisting principally of castings, bearings, screw-machine parts, brake linings, and other metal raw materials, from without the State of Wisconsin, and sold and shipped 53 per cent of its finished products to purchasers outside the State of Wisconsin. Total purchases by the Wisconsin Axle Division in 1937 amounted to $3,267,000, and total sales amounted to $4,918,000. II. THE ORGANIZATION INVOLVED United Automobile Workers of America is a labor organization affiliated with the Committee for Industrial Organization. Local No. 291 is an amalgamated, local consisting of employees of the respondent as well as employees of other plants in the city of Oshkosh, Wisconsin. III. THE UNFAIR LABOR PRACTICES A. The alleged discriminatory discharge The respondent and the United began collective bargaining nego- tiations in April 1937, shortly after the United had organized the employees at the respondent's Oshkosh plant. On April 24, 1937, the respondent and the United entered into a written contract for a term of a year. The contract, which was in full force at the time of the occurrences hereinafter related, provided, inter alia, for the arbitration of grievances, including allegedly unjust discharges, by a committee of individuals selected by both the United and the re- spondent. The contract, by Section 2, further provided that : ... the United agrees not to intimidate or coerce employees into membership and also not to solicit membership on Company premises at any time. From the outset, William J. Eichorn was a dominant figure in the United. He was temporary chairman of the meeting at which the United was organized, a member of the bargaining committee with which the respondent negotiated the contract, chairman of the United's grievance and delinquent membership committees, vice presi- dent of the United, and executive board member of the district coun- cil of the United Automobile Workers of America. He also assisted in organizational activities in plants other than the respondent's. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eichorn had worked for the respondent for 9 years and was con- cededly an efficient workman. At-the time of his discharge on Sep- tember 23, 1937, his work was to tend a machine on the first of the operations in the production of hubs, the principal product manu- factured by the respondent. Several days before his discharge, Eichorn, while awaiting supplies, chanced to meet Fred Sohm, a United member who was in arrears in his dues. In his capacity as a member of the delinquent membership committee, Eichorn told Sohm that he was delinquent, that after October 1, 1937, delinquent members would be expelled, that the United was a militant organization, and that Sohm had better pay his dues. The conversation between them lasted about 3 minutes. Sohm thereupon complained to Charles Billberg, the plant superintendent. After an affidavit embodying the oral complaint was furnished him, Billberg called a meeting with the United grievance committee. He stated that by his conduct with reference to Sohm, Eichorn had vio- lated Section 2 of the United's contract with the respondent, the pertinent provisions of which have been heretofore set out verbatim, prohibiting union intimidation and coercion of employees into union membership. Eichorn refused to resign upon request, and Billberg discharged him forthwith. No other reason than the purported viola- tion of contract was given for Eichorn's dismissal at this time. On the following day, the grievance committee and the respondent held a second meeting. Although here substantially the same reason for Eichorn's discharge was given, i. e., the violation of contract, Billberg testified that he might have stated Eichorn was "inefficient, irrespon- sible, unreliable, and obstreperous," and that reasons for Eichorn's discharge would come up later as an "arbitral dispute." At a third meeting a few days later, the respondent, through its vice president, stated that the real reason for Eichorn's dismissal was his frequent unauthorized absences. The respondent proposed to arbitrate the dis- pute in accordance with the arbitration procedure provided in its contract with the United. The United grievance committee members, after deliberating among themselves, declined, and filed the charges which formed the basis for the present proceeding. Eichorn was one of the most active union leaders in the respond- ent's plant. He was also a good workman. The respondent did not seek to controvert these facts, the truth of which it admitted, but as- serted that Eichorn was discharged, not because of his union mem- bership and activity, but because of his frequent absences from work with a resultant disruption in production. Between April 24 and September 23, 1937, the date of his discharge, Eichorn was absent from work on approximately 57 occasions. Aside from instances when Eichorn's absences resulted from illness, meet- ings of the United with the respondent, which he attended, and plant THE TIMKEN-DETROIT AXLE COMPANY ET AL. 95 shut-downs or machine repairs, Eichorn was away from his work either all or part of the day on no less than 30 different occasions. Most of these absences were not sanctioned by the respondent, Eichorn admitting that the respondent excused him not more than 10 times. A major portion of the respondent's hub production involves a sequence and continuity of operations, each operation in the manu- facturing process having to be completed before the commencement of succeeding operations. Eichorn's operation was the first in this series, and a stoppage or delay in his work generally impeded all sub- sequent operations. In May 1937, the respondent increased its sched- ule of production in order to enlarge its output, adding a third 8- hour shift, which placed Eichorn's machine in 24-hour daily use. Eichorn's absences, many of them coming at a time when the re- spondent had increased its production schedule, disrupted the re- spondent's manufacturing operations. Eichorn was continually warned of the consequences of his conduct. Several times prior to his discharge, the plant foreman threatened to discharge Eichorn because of his absences. His absences provoked protestations by the respond- ent at each of five grievance committee meetings with the United, at which Eichorn was present and participated. The president of the United, in response to the respondent's urging, approached Eichorn in regard to confining his labor activities at other plants to a time outside of working hours, but Eichorn stated that he was unable to do so. Eichorn admitted that the entire controversy between him and the respondent centered about his absences from work. Eichorn obviously occupied a strategic position in the respondent's manufacturing operations. Upon the uninterrupted and continuous performance of his work depended the uninterrupted and continuous performance of other work in the plant. Having a specialized de- gree of skill, he was not readily replaceable. It is apparent that Eichorn's absences from his work caused a severe hardship to the respondent, which had set for itself a heavy production schedule, and offered ample justification for a discharge. It is true that Eichorn was an outstanding union leader, and the circumstances sur- rounding his dismissal were not entirely free from doubt. Never- theless, there is a complete absence of evidence in the record that the respondent at any time, either by words or conduct, expressed any hostility toward the United or its leaders. On the contrary, the respondent, in its dealings with the United with reference to the contract, in its toleration of Eichorn's numerous absences, and in its willingness to arbitrate the discharge according to the arbitration procedure set forth in the contract, revealed an attitude in no way indicative of union animus. This, together with the fact that at the second and third grievance committee meetings, which closely followed the first meeting, the respondent advanced reasons for 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eichorn's dismissal consistent with compelling evidence in the record, impels us to the conclusion, and the finding, that Eichorn was not discharged for union activity. The United contended, in oral argument, that Eichorn, in speaking to Sohm about his delinquent dues, did not violate Section 2 of the contract, and that even if there had been a violation, it was a matter to be settled between the respondent and the United, and not by the discharge of Eichorn. In our view of the case we need not consider these questions. We find that the respondent did not discharge Eichorn for union activities, and did not interfere with, restrain, or coerce its em- ployees in the exercise of their rights guaranteed by Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. The operations and business of the respondent constitute a con- tinuous flow of trade, traffic, and commerce among the several States, within the meaning of Section 2 (6) of the Act. 2. United Automobile Workers of America, Local No. 291, affil- iated with the Committee for Industrial Organization, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The respondent has not discriminated in regard to hire or tenure of employment, thereby discouraging membership in a labor organi- zation and engaging in an unfair labor practice within the meaning of Section 8 (3) of the Act. 4. The respondent has not, by discrimination in regard to hire or tenure of employment, interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in an unfair labor practice within the meaning of Section 8 (1) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board orders that the complaint against The Timken-Detroit Axle Company, Wisconsin Axle Di- vision, Oshkosh, Wisconsin, alleging that the respondent has engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act, be, and it hereby is, dismissed.