The Hoover Company

In the Matter of THE HOOVER COMPANY and UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, LOCAL 709 Case No. C-676.-Decided May 12, 1939 Vacuum Cleaner Manufacturing Industry-Interference, Restraint , and Coer- cion: charges of, not sustained-Discrimination: charges of, not sustained; discharge because of testimony at prior hearing : charges of, not sustained- Complaint: dismissed. Mr. Harry L. Lodish, for the Board. Black, McCuskey, Ruff do Souers, by Mr. Walter Ruff and Mr. Homer E. Black, of Canton, Ohio, for the respondent. Mr. S. G. Lippman, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed on behalf of United Electrical and Radio Workers of America, affiliated with the Com- mittee for Industrial Organization, herein called the Union,' the National Labor Relations Board, herein called the Board, by James P. Miller, Regional Director for the Eighth Region (Cleveland, Ohio), issued and duly served its complaint dated March 17, 1938, against The Hoover Company, North Canton, Ohio, herein called the respondent, alleging that the respondent had engaged in, and was engaging in, unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (4), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleged in substance : (1) that the respondent dis- charged Lorentz Dessecker on or about August 26, 1937, because he joined and assisted the Union; (2) that the respondent discharged 1 At the hearing, counsel for the Board stated that the name of the Union had been changed to "United Electrical, Radio and Machine Workers of America, Local 709". Upon his motion, all formal papers in the case were amended to substitute the new name of the Union in the place of the old name. 12 N. L. R. B., No. 93. 902 THE HOOVER COMPANY 903 Ralph E. Fall on or about October 25, 1937, because he joined and assisted the Union and gave testimony at a hearing before the Board on or about October 18 to October 22, 1937, in a case involving the respondent and the union; 2 and (3) that the respondent, by virtue of the aforesaid discharges and by other acts, interfered with, re- strained, and coerced, and is interfering with, restraining, and coerc- ing its employees in the exercise of the rights guaranteed in Section 7 of the Act. A copy of the complaint, accompanied by a notice of hearing there- on, was duly served upon the respondent and upon the Union. There- after, the respondent filed an answer in which, as amended at the hearing, it admitted that it was engaged in interstate commerce but denied that it had engaged in any of the alleged unfair labor practices. Pursuant to notice, a hearing was held at Canton , Ohio, on April 14, 15, and 16, 1938, before Albert L. Lohm , the Trial Examiner duly designated by the Board. The Board and the respondent were rep- resented by counsel and participated in the hearing; the Union, al- though given an opportunity, did not appear. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the hearing, counsel for the Board moved that the entire record in Matter of The Hoover Company and United Electric and Radio Workers of America, Local No. 709, Case No. C-374,8 be incorporated in the present proceeding by reference . The Trial Examiner granted the motion over the objection of the respondent. Upon renewal of the objection at the close of the hearing, the Trial Examiner reserved ruling thereon. The objection was overruled by the Trial Examiner in his Intermediate Report . At the conclusion of the Board's case, counsel for the Board moved that the pleadings be amended to con- form with the proof. The motion was granted . The Trial Ex- aminer made various rulings on other 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 com- mitted. The rulings are hereby affirmed. On May 25, 1938 , the Trial Examiner filed his Intermediate Report in which he found that the respondent had engaged in unfair labor practices as alleged in the complaint and recommended that the re- spondent cease and desist from engaging in the unfair labor practices and that it offer reinstatement and back pay to Ralph E. Fall and Lorentz Dessecker. Thereafter the respondent filed exceptions to the Intermediate Report and requested an opportunity for oral argument before the 2 See Matter of The Hoover Company and United Electrical and Radio Workers of America, Local No. 709, 6 N. L. R. B. 688. 3 See footnote 2. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board. Pursuant to notice, a hearing was held before the Board for the purpose of oral argument on February 7, 1939, at Washington, D. C. The respondent was represented by its counsel, and the Union by its international president. The respondent also filed a brief in support of its exceptions. The Board has considered the exceptions to the Intermediate Re- port and finds them without merit except in so far as they are con- sistent with the findings, conclusions, and order set forth below. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Hoover Company is an Ohio corporation having its principal office and factory in North Canton, Ohio. It is one of the three largest vacuum-cleaner manufacturers in the United States, its sales amounting to several million dollars annually, and, according to its advertisements, its product is known in every civilized country. The principal raw materials used by the respondent are aluminum, mag- nesia, bakelite, rubber products, bag material, and steel. Sixty per cent of the raw materials are purchased outside the State of Ohio. Approximately 75 per cent of the respondent's products are sold out- side the State of Ohio. We find that the operations of the respondent occur in commerce, within the meaning of Section 2 (6) of the Act. 11. THE LABOR ORGANIZATION INVOLVED United Electrical, Radio and Machine Workers of America, Local 709, is a labor organization affiliated with the Committee for In- dustrial Organization, admitting to membership all production and maintenance employees of the respondent, except employees in a supervisory position. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Alleged interference, restraint, and coercion The complaint alleges that the respondent on or about August 19, 1937, or thereafter, interfered with, restrained, and coerced its em- ployees by advising, ordering, and persuading them to refrain from joining the Union, by threatening to discharge various of its em- ployees, and by other acts. The testimony at the hearing, other than that relating to the alleged discriminatory discharge of Lorentz Dessecker and Ralph E. Fall,4 concerned primarily alleged inter- ' The two alleged discriminatory discharges are discussed in Section B below. THE HOOVER COMPANY 905 ference, restraint, and coercion on the part of the respondent as re- gards William Diekman, an employee of the respondent and treasurer of the Union. Diekman testified that on the afternoon of February 3, 1938, he informed Ernest Bruns, his foreman, that he had completed the work assigned him and was "out of a job"- and that Bruns replied to the effect that he was discharged and that he should report to C. C. Drake, general foreman of the toolroom department. Diekman further testified that, when he shortly thereafter reported to Drake, he was warned against participating in any union activities and in- formed that, although he had not been discharged, his job might become vacant if he had anything to do with the C. I. 0. However, on cross-examination, Diekman admitted that "about the only thing" Drake said to him was that he "would have to stop soliciting mem- bership or dues on company time." A summary of Diekman's discus- sion with Drake, prepared by Diekman shortly after such discussion and introduced in evidence at the hearing, quotes Drake as stating, "We don't care who joins your union so long as you don't organize during working hours." Bruns testified to the effect that during working hours on Feb- ruary 3,1938, he saw Diekman engage in a discussion of some length with Frank Moser, another employee, and when he questioned Moser with regard to the reason for such discussion, Moser states that Diek- man was soliciting dues for the C. I. 0. This testimony was cor- roborated by Moser. Bruns testified that he thereupon reported the matter to Drake who asked that Diekman be asked to report to Drake's office. Bruns denied that he stated that Diekman was dis- charged and testified that he merely informed Diekman that he should report to Drake. Drake testified to the effect that Diekman had been warned a number of times about solicitation on company time and that, having been informed by Bruns that Diekman was engaging in such solicita- tion on February 3, 1938, he directed that Diekman report to him and that, when Diekman did so, he informed Diekman that the respondent did not object to his engaging in union activities but that he would not be permitted to do so during working hours. Bruns, who was present at the time of Drake's talk with Diekman, corroborated Drake's testimony with regard to Drake's statements to Diekman. Upon the basis of the evidence before us, we conclude that the statements which Drake and Bruns made to Diekman were such as testified to by them. We find that the respondent did not thereby interfere with, restrain, and coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The allegedly discriminatory discharges Lorentz Dessecker. Prior to his discharge on August 26, 1937, Dessecker had worked for the respondent for approximately 10 years, principally in the plating room. He joined the Union about March 1937. On August 25, 1937, Dessecker and other employees of the respond- ent were standing before the time clock at the respondent's plant about three minutes before the time for the ringing of the bell which terminated the day's work. This was a customary practice. Glen Rohr was first in line, followed by Dessecker, Oliver Marchand, O. M. Wallace, and Mervin Smith. Dessecker playfully jiggled the lever of the time clock while Rohr's card was in the slot and inadvertently pressed the lever too hard, causing it to register the time before the closing bell actually rang. Thereupon Rohr grabbed Dessecker's card and the two men began to scuffle. During the scuffle the bell rang, Marchand then stepped up to the time clock and punched his card, and Wallace was about to do the same when Dessecker pushed him away. Smith, who was next in line, attempted to hold Dessecker aside while Wallace again attempted to punch his card. Dessecker, breaking away from Smith, took hold of Wallace from the back and gave him a shove towards a door with a plate glass located between 5 and 10 feet from the time clock. In attempting to prevent himself from going through the door, Wallace pushed his left arm through the glass and cut his left wrist in two places. One of the cuts re- quired four stitches and, according to Wallace, "the other cut was too bad to be sewed up; there was too much flesh gone." Wallace did not regain the complete use of his arm for about 3 weeks. On the following day C. F. Athy questioned Wallace and other of the employees concerning the manner in which Wallace was injured and thereafter H. M. Williams, the general foreman, discussed the matter with Wallace, Dessecker, and a number of the other em- ployees. Shortly thereafter Williams informed Dessecker that he was discharged for the "horse play" at the time clock. At the hearing, the respondent took the position that Dessecker was discharged because he engaged in "horse play" which resulted in a severe injury to a fellow employee and because "horse play" was strictly prohibited by the respondent's rules and regulations. The evidence shows in the latter connection that the respondent had posted in its plant certain rules and regulations, including a rule against "horse play", and that a copy of the rules and regulations was given each employee at the time of his employment. The evidence further shows, however, that it was not an unusual occur- rence for employees to engage in "horse play" and that the respondent THE HOOVER COMPANY 907 had not attempted on the whole to enforce the rule with any strictness. As we have noted above, Dessecker joined the Union about March 1937 and he testified that he wore a union button which was about the size of a dime for approximately a month during the summer of 1937. There is no testimony that he was otherwise active in the Union. The respondent asserts that it did not know at the time of Dessecker's discharge that he was a member of the Union and various officials of the respondent, including Williams and Athy, testified that they had not seen him wear a union button. No wit- ness was called to corroborate Dessecker's testimony that he did so. Wallace, a member of the Union, testified that he had not seen Des- secker wear a union button although he had seen other members of the Union do so. Under all the circumstances, we conclude that it has not been estab- lished that the respondent discharged Dessecker because of his union membership or activity. We find that the "respondent has not encour- aged or discouraged membership in a labor organization by dis- criminating in regard to the hire and tenure of employment of Lorentz Dessecker. Ralph E. Fall. Prior to October 25, 1937, Fall had been in the employ of the respondent for approximately 11 years. He joined the Union shortly after it was organized in December 1936 and was elected president of the Union in January 1937. At a hearing before the Board ending October 22, 1937, in a case involving allegations that the respondent herein had engaged in certain unfair labor practices,5 Fall testified against the respondent. During the course of such hearing, the Board's attorney requested the respondent to furnish certain information concerning the earnings of its employees. The respondent at such time discovered the absence from its files of approximately 50 to 60 time cards of its employees. It thereafter at the hearing in October 1937 questioned Fall, who worked at the respondent's plant in a room adjoining the room where the time cards were kept, with respect to the missing time cards. Fall thereupon testified that a person whose name he refused to divulge had given him the cards and that, after keeping them for some weeks, he had turned the cards over to the Union's attorney. At the said previous hearing, Ralph Rudersmith, an employee who worked in the same room at the plant that Fall worked in, testified that during the month of July 1937 he saw Fall take a considerable number of time cards from the respondent's file room, wrap them in a piece of manila paper and put them in his pocket. Rudersmith 0 See footnote 2. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD further testified at such time that he told his father, John Ruder- smith, and Hunter Okey, an employee of the respondent, about see- ing Fall take the time cards. At the hearing in the instant case, John Rudersmith and Okey corroborated Ralph Rudersmith's testi- mony on this point. On October 25, 1937, three days after the close of the hearing in the first case involving the respondent herein, Glenn H. Nelson, the respondent's office manager, called Fall to his office and informed him that he was indefinitely suspended from the respondent's employ until such time as he could clear himself of the charge that he took the time cards from the file room. Fall had not been reinstated to employment at the time of the hearing. Under all the facts, we conclude that it has not been established that the respondent discharged Fall because of his membership and activity in the Union or because he gave testimony at the hearing before the Board in October 1937. We find that the respondent has not encouraged or discouraged membership in a labor organization by discriminating in regard to the hire and tenure of employment of Ralph E. Fall. We further find that it has not discharged or otherwise discriminated against Fall because he gave testimony under the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. The operations of the respondent, The Hoover Company, occur in commerce, within the meaning of Section 2 (6) of the Act. 2. United Electrical, Radio and Machine Workers of America, Local 709, affiliated 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 ten- ure of employment of Lorentz Dessecker and Ralph E. Fall, thereby discouraging membership in a labor organization and engaging in an unfair labor practice, within the meaning of Section 8 (3) of the Act. 4. The respondent has not discriminated against Ralph E. Fall because he gave testimony under the Act, thereby engaging in an unfair labor practice, within the meaning of Section 8 (4) of the Act. 5. The respondent has not, by any discrimination in regard to hire and tenure of employment discouraged membership in a labor organization or by any discrimination against an employee because THE HOOVER COMPANY - 909 of his giving testimony under the Act or by any other acts alleged in the complaint, 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 Hoover Company, Canton, Ohio, alleging that the respondent has engaged in unfair labor practices within the meaning of Section 8 (1), (3), and (4) of the Act, be, and it hereby is, dismissed.