Byron-Jackson Co.

In the Matter of BYRON-JACKSON CO., A CORPORATION and STEEL WORKERS ORGANIZING COMMITTEE Case No. C-377.-Decided March 15, 1939 Oil Well Tool and Pump Manufacturing Industry-Interference, Restraint, and Coercion-Discrimination: lay-offs and discharge, to discourage activity in behalf of union ; found ; assigning one employee to night shift and discharging another employee subsequent to reinstatement after prior lay-off; not sus- tained-Reinstatement Ordered-Back Pay: awarded. Mr. David Persinger, for the Board. Latham, Watkins cfi Bouchard, by Mr. Paul R. Watkins, of Los Angeles, Calif., and Chickering i Gregory, by Mr. Donald Y. La- mont, of San Francisco, Calif., for the respondent. Mr. Anthony W. Smith, of Washington, D. C., for the S. W. O. C. Mr. Victor A. Pascal, of counsel to the Board. DECISION AND ORDER STATEMENT OF TIIE CASE Upon charges and amended charges duly filed by Steel Workers Organizing Committee, herein called the S. W. O. C., the National Labor Relations Board, herein called the Board, by Towne Nylander, Regional Director for the Twenty-first Region (Los Angeles, Cali- fornia), issued its complaint dated October 15, 1937, against Byron Jackson Co., Huntington Park, California, herein called the re- spondent, alleging that the respondent had engaged in and was engaging in unfair labor practices 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. The complaint and accompanying notice of hearing were duly served upon the respondent and the S. W. O. C. With respect to the unfair labor practices the complaint, as amended, alleged in substance that the respondent discriminated in regard to the hire and tenure of employment of William Burstall, Clarence Schuster, and William Jones, thereby discouraging mem- bership in a labor organization, and, by these and other acts, inter- 11 N. L. R. B., No. 103. 1142 BYRON-JACKSON CO. ET AL. 1143 fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent filed an answer which, in substance, contested the Board's jurisdiction of the subject matter and denied the alleged unfair labor practices. Pursuant to the notice, a hearing was held at Los Angeles, Cali- fornia, on October 21, 1937, and pursuant to adjournment on No- vember 22 and 23, 1937, before Clifford D. O'Brien, the Trial Ex- aminer duly designated by the Board. The Board and the respond- ent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing, the Trial Examiner made several 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. At the close of the hearing, the Trial Examiner gave the parties opportunity to present oral argument and to file briefs. The respondent filed a brief with the Trial Examiner which has been considered by the Board. On January 21, 1938, the Trial Examiner filed an Intermediate Report, copies of which were duly served upon all the parties, in which he found that the respondent had engaged in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act and recommended that the respondent cease and desist from its unfair labor practices, offer full reinstatement to Schuster, and make whole all three employees named in the complaint for loss of pay resulting from the respond- ent's discriminatory acts. On January 31, 1938, the respondent filed exceptions to the Inter- mediate Report. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on March 1, 1938. The respondent and the S. W. O. C. were repre- sented by counsel and participated in the argument. The Board has considered the respondent's exceptions to the Intermediate Report and, to the extent that they are inconsistent with the findings, conclu- sions, and order set forth below finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Byron Jackson Co., a Delaware corporation, is engaged in the manufacture, sale, distribution, installation, and servicing of oil-well tools, centrifugal pumps, and turbine pumps. It owns and operates plants at Berkeley, Huntington Park, and Vernon, California, and 1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at Bethlehem , Pennsylvania . The Vernon plant, referred to in the complaint as the scene of the respondent's unfair labor practices, manufactures oil-well tools. The Huntington Park and Berkeley plants manufacture centrifugal pumps and the Bethlehem plant fab- ricates and assembles pumps manufactured locally and in Califor- nia. The respondent also conducts the business of Byron Jackson Co. of Texas, a Texas corporation dissolved on June 28, 1937, which maintained a warehouse and sales office at Fort Worth, Texas, and was engaged in selling and installing the respondent's centrifugal and turbine pumps and in selling oil-well tools in various States. Warehouses not connected with its plants are maintained by the re- spondent at Bakersfield and Ventura, California, and at Fort Worth, Texas. The respondent has sales offices or sales representatives in Texas, Oklahoma, Utah, Colorado, Louisiana, and New York, and employs between 30 and 50 salesmen in 20 to 30 States, occasionally sending sales engineers to foreign countries. In its manufacturing operations, the respondent uses castings and forgings which it secures in California and steel which it secures from sources both within and outside of California. In 1936, the value of the respondent 's sales was in excess of $3,000,- 000. Its president testified that its sales during 1937 would exceed that amount. The respondent's products are sold in California and in the oil-producing territories of the midwestern and eastern sec- tions of the United States. Approximately 20 per cent of the re- spondent's products are sold to supply companies which, in turn, resell part of the products to their customers in various foreign countries, including Venezuela, Colombia, Trinidad, Cuba, Rumania, India, and Dutch East Indies. Approximately 30 to 40 per cent of the respondent's finished products are shipped by it to destinations outside the State of California. At the Vernon plant 139 men were employed during the week of May 10, 1937, and 107 men on November 23, 1937. II. THE ORGANIZATION INVOLVED Steel Workers Organizing Committee is a labor organization affil- iated with the Committee for Industrial Organization, herein called the C. I. 0., admitting to its membership shop employees at the respondent's Vernon plant. III. THE UNFAIR LABOR PRACTICES A. Background of the unfair labor practices On the morning of May 10, 1937, two pieces of cardboard, each marked in columns headed "C. I. 0." and "Shop Union ," were cir- BYRON-JACKSON CO. ET AL. 1145 culated among the employees at the respondent's Vernon plant at which the three men named in the complaint were working. At about 8: 30 that morning, Charles Carlberg, a shop employee, handed one of the cards bearing the signature of 0. H. Dimmitt, another employee, to William Jones, stating that he wanted to find out "how the boys felt about the union." Jones signed the cardboard in the C. I. 0. column and placed it on his bench in the tong department. Substantially all the men in the department placed their signatures under his. Jack Hunter, the shop foreman, saw the card lying near Jones' machine and noticed that it bore approximately 12 signatures. Hunter thereupon reported the presence of the signed cardboard to his superior, Herbert H. Grau, the respondent's works manager, who instructed him to "pick it up." Both Hunter and Grau testified that circulation of the cardboard in the shop during working hours vio- lated the respondent's rules. Later in the morning, Hunter took the list from Jones and there- after gave it to Grau, who retained the list until its production at the hearing. Jones testified and we find that during the afternoon of May 10 Hunter accused Jones of responsibility for the list. At about 10 o'clock the same morning, Jack Kaufman, a shop em- ployee, handed. Clarence Schuster the other cardboard which bore only Kaufman's signature and had been marked in two columns in the same manner as the cardboard Jones had received. Schuster placed his signature beneath Kaufman's and the second list was thereafter circulated in the hook, elevator, and pattern departments for signature by other employees. During the noon hour, Hertell, an engineer in the office, saw William Burstall hand it to Mike Kerz- ner, a welder. Shortly after lunch, Carlberg gave it to Hunter. Hunter delivered this list also to Grau who retained it until it was produced at the hearing. All the signatures on both cards appear in the C. I. 0. column. According to Burstall, at about 10 o'clock the next morning, Hunter accused him of being an organizer for the C. I. 0. and of forcing men to sign the lists, and later demanded to know his grievances. Burstall testified that he denied forcing men to sign the cardboard or having any grievances, whereupon Hunter asked him why he had signed "the petition with the C. I. 0." and he answered that he had a right to join such organizations as he desired. Schuster testified that, be- tween 11 and 12 o'clock on May 11, Hunter said to him, "I see your name on this petition. What is your grievance," and later made the same remarks to Dave Rogers, another employee. Hunter admitted that he had accused Burstall of having influenced or "almost forced a man to sign the petition" but denied having had a conversation with him in which the C. I. 0. was mentioned or having spoken with any 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the employees with reference to the list. Burstall and Schuster's versions of their conversations with Hunter are consonant with the respondent's hostility to the efforts of its employees toward self-or- ganization, hereinafter revealed. We credit them as substantially true. At about noon on May 12, 1937, the S. W. O. C. held a meeting out- side the plant at which membership application blanks were dis- tributed. Shortly before the meeting, Grau, the respondent's works manager, asked Schuster why he had not been invited to attend, and thereafter attended the meeting. According to his own testimony, Grau secured a membership application which he filled out and submitted. Grau testified that he instructed Hunter to "pick up" one of the lists because its circulation in the plant during working hours was for- bidden. But Hunter did not content himself with confiscating one list and accepting the other. Armed with this evidence of the identity of employees who favored the S. W. O. C., he singled out individuals for interrogation and accusation-an obvious method of indicating the respondent's hostility toward the organizational activities of its employees and of discouraging those activities. Grau's attendance at the S. W. O. C. meeting, too, violated the right of the employees to organize without employer interference. It enabled him to ascertain which of the employees were active in behalf of the S. W. O. C. and had the necessary effect of discouraging membership in the organization. Shortly after Grau attended the S. W. O. C. meeting, Jones, Schuster, and Burstall were deprived of their jobs. B. The discriminatory lay-offs and discharge William Jones started to work at the Vernon plant in 1920, before it was taken over by the respondent. He was dismissed in July 1931, reemployed in August 1933 and, apart from slack periods, worked steadily until his alleged discriminatory lay-off on May 13, 1937. Prior to his lay-off, Jones operated a milling machine on the day shift in the tong department, occasionally assisted on the drill press, and sometimes instructed new men in their work. In January 1937, he was receiving a wage of 73 cents an hour which was increased to 75 cents an hour in March. As noted in Section A above, Jones was an active participant in securing the employees' signatures on behalf of the S. W. O. C. and was accused by Hunter of being responsible for the signatures. On May 13, 1937, the day following the meeting of the S. W. O. C., Hunter laid off Jones for 2 weeks saying that, as work was short BYRON-JACKSON CO. ET AL. 1147 and Jones was a "chronic asker for raises," he was being accorded an opportunity to find more suitable employment. Jones returned to the plant on June 1, but Hunter refused to re- employ him. When Jones again asked Hunter for reemployment, on June 21, he was first told that he would not be put back to work, but, after he stated that the "Labor Relations Board" had sent him to the respondent, Hunter told him that he would be put back to work in 3 or 4 days. Jones was rehired on the night shift on June 28, 1937, and worked steadily until September 9, 1937. Since the latter date, he has not worked steadily. It appears that in May 1937, the respondent was obliged to lay off some employees for business reasons. Hunter testified that, as Jones was dissatisfied with his wages, he had selected Jones to be laid off in order to give him an opportunity to better himself. We note that the acceptance of this opportunity was obligatory upon Jones. We find that the respondent selected Jones for lay-off and laid him off from May 13 to June 28, 1937, not because he was dissatisfied nor because Hunter wished to afford him an opportunity to seek other employ- ment, but solely because the respondent objected to his activities on behalf of the S. W. 0. C. The complaint alleges that after reinstating Jones the respondent discriminatorily discharged him on September 9, 1937, and there- after refused to reinstate him. Jones testified that he has been employed by the respondent since that date but that he has not worked as steadily as other employees with less seniority. The record shows that on about September 9 there was a decrease in the respondent's business and that on November 23, 1937, only 107 men were employed at the plant as compared to 139 on May 10. There is no substantial evidence that the respondent discriminated against Jones by discharging him on September 9, 1937, or in failing to accord him steady employment thereafter. The allegations of the complaint concerning Jones' alleged discharge on September 9, 1937, will therefore be dismissed. Clarence Schuster was employed by the respondent in March 1936 as a die grinder at a wage of 45 cents an hour. Shortly thereafter, he was assigned to operate a radial drill in the hook department and performed this work until he was laid off, his duties occasionally including "breaking in" new employees. By May 12, 1937, his wage had been increased to 75 cents an hour. As noted in Section A above, Schuster signed and participated in circulating one of the lists, was questioned by Hunter concerning his "grievance," and was ques- tioned by Grau concerning the S. W. 0. C. meeting. According to Schuster, shortly before quitting time on May 12 Hunter told him that he was being laid off so that he might find a 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD better position. Schuster further testified that, although he stated that he was satisfied with his position, Hunter insisted that he was dissatisfied and told him that if he was unsuccessful in finding better employment he would be rehired on June 1. Hunter testified sub- stantially to the same effect, stating that he had told Schuster that, as work was getting a bit short and he was a "chronic asker for raises of pay" it would be better for him to search for more suitable em- ployment and, if he was unsuccessful in his search, he should return in 2 or 3 weeks or by June 1. Schuster returned to the plant on May 14 and spoke with Grau and Hunter but failed to secure reemployment. Hunter and Lloyd Dudley, a timekeeper, testified that Schuster asked for his severance slip when he returned to the plant on June 1, but left before it had been filled out. Schuster first testified that Hunter told him that he "was through" and gave him a severance slip on June 1, but later recollected that Hunter had given him the slip indicating his sev- erance on June 1 about the middle of June. The respondent con- tends that, by asking for his severance slip, Schuster resigned. In view of his continued requests for reinstatement, we find that Schuster did not ask the respondent for the severance slip. In further support of its contention that it had not discharged Schuster, the respondent introduced in evidence Schuster's applica- tion for employment with Emsco Derrick and Equipment Co. dated May 24, 1937, wherein he stated that he had left the respondent's employ in order to better himself, and adduced other evidence in- dicating that, in applying for other employment, Schuster stated that his employment with the respondent had been terminated under circumstances not indicating a discharge. Under all the circum- stances, we regard such evidence as indicating only that, in search- ing for other employment subsequent to May 12, 1937, Schuster at- tempted to conceal from prospective employers the fact that the respondent had discharged him. In July or August 1937, Schuster again saw Grau who refused his request for employment but stated that he would speak with Hunter about rehiring him. Schuster was not reemployed by the respondent. The respondent contends that it selected Schuster to be laid off both because he was "dissatisfied" and because his work was unsatis- factory. The evidence of Schuster's alleged inefficiency is unconvincing. Inasmuch as Schuster's wages were increased from 45 cents an hour to 75 cents an hour between March 1936 and May 1937, and inasmuch as the respondent assigned him to "break in" new employees, we con- clude that Schuster was not laid off for unsatisfactory work. As to Schuster's alleged dissatisfaction, the observations made above with reference to Jones' lay-off are also applicable to Schuster. BYRON-JACKSON CO. ET AL. 1149 Upon the entire record, we find that the respondent discharged Schuster on May 12, 1937, and thereafter refused to reinstate him for the reason that he had assisted the S. W. O. C. and had engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection. Schuster found work from time to time since his discharge and was employed at the time of the hearing at a rate of pay exceeding that which he received from the respondent. He desires reinstate- ment to his former position with the respondent because his present employment requires him to travel a greater distance from his home and requires him to work at night. William Burstall was employed by the respondent in February 1934 at a wage of 65 cents an hour. By May 1937, when he was en- gaged in operating various machines in the shop, his wage had been increased to 78 cents an hour. Burstall applied for membership in the S. W. O. C. on May 5, 1937. As we have found in Section A above, on May 10, 1937, Hertell observed Burstall circulating one of the cardboard lists and, the next day. Hunter accused him of having signed the list, of having forced others to sign it, of being dissatis- fied, and of being an organizer for the C. I. O. The same afternoon, Hunter transferred him from the day to the night shift. About 8 :30 p. m. on May 13, 1937, Hunter greeted Burstall with the question, "Well Bill, I suppose you know what I am here for?" Upon receiv- ing an affirmative answer, Hunter said that the respondent was going to initiate a new policy and that he was compelled to lay off Burstall for 2 weeks. Hunter told Burstall that his work was satisfactory, that business was slow, and that, as Burstall was dissatisfied with his wage, he should try to better himself by looking for another job. He added that if Burstall was unsuccessful in his search, he should return to work in 2 or 3 weeks. On this occasion Burstall said that he did not care to work for a company which had treated Jones as had the respondent. We do not view Burstall's remark as acquies- cence in the lay-off but merely as an expression of resentment against the respondent's discrimination against Jones. Burstall returned to the plant on May 20 and received his pay check from Hunter. Burstall testified that, on asking for reemploy- ment on May 27, Hunter told him that as there was still some "un- rest" in the shop, he would not be rehired and that he should con- tinue his search for employment. Hunter, howeveir, testified that on the occasion in question he had told Burstall only that there was no work for him at the time but that there might be in a few days; that Burstall said he was going east on a trip; and that he told Burstall to see him when he returned. We credit Burstall's version of the incident. 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About June 10, Burstall again applied for reinstatement and Hunter told him that he could not be reemployed as long as he was dissatisfied. When Burstall saw Hunter on dune 21 Hunter said that business had not improved as much as he thought it would, but told Burstall to return the following Thursday. On June 24, 1937, Burstall was put back to work on the night shift and was regu- larly employed by the respondent until the date of the hearing. During Burstall's employment prior to his lay-off, he was occa- sionally transferred back and forth between the day and the night shift. The complaint will be dismissed in so far as it alleges that the respondent's assignment of Burstall to the night shift consti- tuted discrimination in regard to his hire and tenure of employment. As to Burstall's lay-off from May 13 to June 24, 1937, Grau testified that, as Burstall had been asking for an increase in salary, he was given "a few days off like that" to accord him an opportunity to bet- ter his position. Hunter likewise testified that Burstall had been laid off so that he might better himself, as he was dissatisfied with his wages. The observations made above with reference to Jones' lay-off and Schuster's discharge are also applicable to Burstall. Upon the entire record we find that the respondent laid off Burstall from May 13 until June 24, 1937, for the reason that he as- sisted the S. W. O. C. and engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection. We find that the respondent, in discharging Schuster and laying off Burstall and Jones, discriminated in regard to their hire and tenure of employment, thereby discouraging membership in a labor organization and interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III B above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and with foreign countries, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY As we have found that the respondent discriminatorily laid off Burstall and Jones on May 13, 1937, and refused to reinstate Burstall until June 24 and Jones until June 28, 1937, we shall order the re- BYRON-JACKSON CO. ET AL. 1151 spondent to make said employees whole for the loss of pay they have suffered by reason of their respective lay-offs by payment to each of them of a sum of money equal to the amount which he would normally have earned as wages from the date of his lay-off to the date of his reinstatement, less his net earnings' during said period. Having found that the respondent discriminatorily discharged Schuster on May 12, 1937, and thereafter refused to reinstate him, we shall order that the respondent reinstate him to his former or to a substantially equivalent position and make him whole for any loss of pay he has suffered by reason of his discharge by payment to him of a sum equal to the amount he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said period. Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, the Board makes the following: CONCLUSIONS OF LAW 1. Steel Workers Organizing Committee is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of William Burstall, William Jones, and Clarence Schuster, and thereby discouraging membership in Steel Workers Organizing Com- mittee, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8, (1) of the Act. 4. The aforesaid labor practices are unfair labor practices affect. ing commerce, within the meaning of Section 2 (6) and (7) 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, ' By "net earnings" Is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica Lumber and Sawmill Workers Union, Local 2590, 8 N L R . B 440 Monies received for work performed upon Federal , State, county , municipal , or other work-relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal , or other government or governments which supplied the funds for said work-relief projects. 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the National Labor Relations Board hereby orders that the respond- ent, Byron Jackson Co., Huntington Park, California, and its offi- cers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Steel Workers Organizing Com- mittee or any other labor organization of its employees, by discharg- ing, laying off, or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining and other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Clarence Schuster immediate and full reinstatement to his former or to a substantially equivalent position without preju- dice to his seniority and other rights and privileges; (b) Make whole Clarence Schuster for any loss of pay he may have suffered by reason of his discharge by payment to him of a sum of money equal to that which he would normally have earned as wages during the period from May 12, 1937, the date of his discharge, to the date of such offer of reinstatement, less his net earnings during said period, and make whole William Burstall and William Jones, respec- tively, for any loss of pay each may have suffered by reason of his lay-off by payment to each of them of a sum of money equal to that which he normally would have earned as wages from May 13, 1937, the date of his lay-off, to the date of his reemployment, less his net earnings during said period; deducting, however, from the amount otherwise due to Clarence Schuster, William Burstall, and William Jones, monies received by said employees during said periods for work performed upon Federal, State, county, municipal, or other work- relief projects, and pay over the amount, so deducted, to the appropri- ate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work- relief projects; (c) Immediately post in conspicuous places in its Vernon plant notices stating that the respondent will cease and desist in the manner aforesaid, and will take the affirmative action required by paragraphs 2 (a) and (b) of this Order, and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting; BYRON-JACKSON CO. ET AL. 1153 (d) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS PURTHER ORDERED that the complaint, in so far as it alleges that the respondent engaged in unfair labor practices within the mean- ing of Section 8 (1) and (3) of the Act by assigning Burstall to the night shift and by discharging Jones on September 9, 1937, be, and it hereby is, dismissed.