Detroit Gasket and Manufacturing Co.

In the Matter of DETROIT GASKET AND MANUFACTURING CO., A CORPO- RATION and MECHANICS EDUCATIONAL SOCIETY OF_ .AMERICA Case No. C-782.-Decided October 23, 1939 Metallic and Non-Metallic Gaskets Manufacturing Industry-Settlement: stipulation providing for compliance with the Act, including back pay-Order: entered on stipulation. Mr. George J. Bott and Mr. Winthrop A. Johns, for the Board. Cook, Smith, Jacobs cfi Beake, by Mr. Grant L. Cook, Mr. Glenn R. Miller, and Mr. Walter F. Probst, of Detroit, Mich.,' for the respondent. Mr. L. F. Donaldson, of Detroit, Mich., for the Association. Mr. Jack N. Tucker, of Detroit, Mich., for the Society. Mr. William Stix, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On October 8, 1937, the Mechanics Educational Society of America, herein called the Society, filed with the Regional Director for the Seventh Region (Detroit, Michigan) a charge alleging that the respondent had engaged in and was engaging in unfair labor prac- tices within the meaning of Section 8 (1), (2), (3), and (5) of the National Labor Relations Act, WSW. Stat. 449, herein called the Act.' An amended charge was filed by the Society with the Regional Director on April 20, 1938. Upon the charge and amended charge filed by the Society, the National Labor Relations Board, herein called the Board, by the Regional Director, on April 22, 1938, issued its complaint against the respondent alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within 1 On April 12, 1938, the National Labor 5Relations. Board, ordered that,the; case,•arising upon the charge be consolidated with the case arising upon a petition filed on October 5, 1937, by the Society with the Regional Director which requested an investigation and certification of representatives pursuant to Section 9 (c) of the Act. The Board's order directed that a single record should be made of the hearing upon the petition and upon the charge. Subsequently, on October 6, 1939, the Board ordered that the two cases be severed. 16 N. L. R. B., No. 32. 238 DETROIT GASKET AND MANUFACTURING COMPANY 239 the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act. The complaint, as amended, alleges in substance that the respondent discharged 45 named employees 2 because they joined and assisted the Society or because they engaged in a strike on September 30, 1937, and engaged in concerted activities with fellow employees for the purpose of collective bargaining and other mutual aid and protection; that the respondent dominated and inter- fered with the formation of Detroit, Gasket :•Employees •Association; a labor organization of its employees, and gave it financial and other support; that on October 1, 1937, the respondent refused to bargain collectively with the Society, which then represented a majority of the respondent's employees in a unit appropriate for collective bar- gaining ; and that the respondent thereby and by advising its em- ployees to give up membership in the Society and by threatening them with discharge if they failed to join the- Association, and by other acts and conduct interfered with, restrained, and coerced them in the exercise of the rights guaranteed in the Act. Copies of the complaint, the accompanying notice of hearing, and of subsequent notices.,of.,po$tpolaelnent,.of-the,hearing, were duly served upon the respondent, the Society, and the Association. The respondent filed an answer admitting the allegations of fact as to its business and denying all the remaining material allegations of the complaint. The answer alleged affirmatively that all the employees named in the complaint, with the exception of one who was still employed, had quit voluntarily, or had been laid off in the order of seniority, or had been discharged for cause; and that if any employees had been discharged, their discharges had become final by virtue of their failure to present appeals in the manner provided in a contract., dated March 16, 1937, between the respondent and the Society. Pursuant to notice, a hearing upon the complaint was held in Detroit, Michigan, from May 26 to June 21, 1938, before J. C. Batten, the Trial Examiner duly designated by the Board. At the opening of the hearing the Association appeared by counsel and presented its motion to intervene, which was granted. The Board, the respond- ent, the Society, and the Association were represented by counsel 2 Tilley Barnett, Dora Sledger Boyd, T. G. Boyd , Gregory Bourke , Sam Brody, Felix Ciminelli , Donald Clark, Kenneth Curtiss , Frank Darley, Madeline Darley , Clarence Denis, Edward Dudek , Zyg Evans , Lawrence Fisher , Archie Fourne , Zygmund Gill, Harry Guten- tag,.John _Hartmus, Juliane Jankowski , James Johnson , Edward Kalski, Howard Kingsley, Chester Iionefke , Chester Kuhn , Theodore: Lingo, Jack Lippert, John MacFarlan , Joseph Maffetone , LeRoy Midgley , Dewey Morris, William Morris, Louis Mosier , Henry J. Mul- linger, Barney Pack, James Parker, Chester Piatkowski , Bernice Puckett, Herbert Schalk, Robert Sims , Allen Smith , Clarence Snider , Truman Squibbs , Elmer W. Warsow , George Whalen, and Bus Winebrenner . In some instances the form of names in the original com- plaint varies from that in the transcript. We have adopted the form given in the transcript or in amendments to the complaint. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ina upon the issues was afforded all parties. At the close of the Board's case, the Board's attorney moved to dismiss the allegations of the complaint with respect to five persons named therein who did not appear to testify.3 The motion was granted. Either prior to or at the hearing the respondent moved (a) to dismiss the complaint on the ground that the Society had been guilty of lathes; (b) to strike the allegations as to the discriminatory discharges because the employees failed to appeal their discharges in the manner provided in the contract of March 16, 1937; (c) to dismiss all allegations of the complaint based on the amended charge because neither the Act nor the Board's Rules and Regulations pro- vide for amended charges; (d) to dismiss the entire complaint; (e) to dismiss the complaint as to the respondent's alleged violation of Section 8 (1) of the Act ; (f) to dismiss the complaint as to the re- spondent's alleged violation of Section 8 (5) of the Act; (g) to dismiss the complaint as to the alleged discriminatory discharge of Allen Smith, who did not testify at the hearing; (h) to dismiss the allegations as to the discriminatory discharge of persons who par- ticipated in the strike of September 30, 1937, on the ground that they thereby ceased to be employees since assertedly at that time there was no labor dispute and the respondent was not engaging in any unfair labor practices; and (i) to dismiss the complaint as to the respondent's alleged violation of Section 8 (2) of the Act. The Association made a motion similar to the respondent's motion (f) and joined in the respondent's motion (i). At the hearing the Trial Examiner denied motions (a), (b), (c), (d), and (e), granted the respondent's motions (f) and (g) and the Association's motion sim- ilar to motion (f), and reserved ruling on motions (h) and (i), as well as upon the respondent's renewal at the close of the hearing of motions (a), (b), and (c). The Association moved to consolidate for hearing with this case a petition for investigation and certifica- tion of representatives which it had previously filed. The Trial Examiner denied this motion. On June 23, 1938, the Trial Examiner filed his Intermediate Re- port in which he found that the respondent had engaged and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7). of the Act, and recom- mend that the respondent be ordered to cease and desist from the 3 John Hartmus , Jullane Jankowski, James Johnson, Louis Mosier, and Henry J. Mullinger. DETROIT GASKET AND MANUFACTURING COMPANY 241 unfair labor practices and to reinstate with back pay 37 employees.4 He denied the respondent's motion (h) and its renewal of motions (a), (b), and (c), granted the respondent 's and the Association's motion (i), and recommended that the complaint be dismissed as to the alleged discriminatory discharge of Edward Dudek and Bernice Puckett. Exceptions to the Intermediate Report were thereafter filed by the respondent . Pursuant to notice, a hearing was held before the Board at Washington, D. C., on May 18, 1938 , for the purpose of oral argument . The respondent, represented by counsel ,' and the Society, represented by its national secretary , participated in the argument. On September 23, 1939, the respondent, the Society, and counsel for the Board entered into a stipulation in settlement of the case. This stipulation provides : 5 It is hereby stipulated and agreed by and between the parties hereto as follows : 1. That the .Company is a Michigan corporation with its principal place of business and plant at Detroit, Michigan, where it is engaged in,the manufacture and sale of metallic and non-metallic gaskets and other body trim supplies. In the year 1937, the Company purchased raw materials, principally paper, cork, steel and asbestos, in excess of the sum of $500,- 000.00, 77% of which purchases were made in states other than the State of Michigan . The Company's sales, in the year 1937, exceeded the sum of $500,000.00, 1817o of which sales were to customers in states other than the State ' of Michigan. 2. That M. E. S. A. is a labor organization whose Local No. 10 admits to its membership production and maintenance em- ployees of the Company exclusive of supervisory and salaried clerical employees. 3. The parties hereto agree that the Board , upon the basis of this stipulation, the record and the Intermediate Report, may make the necessary findings of fact to establish jurisdic- tion and enter the following order : 4 Tilley Barnett, Gregory Bourke, Dora Sledger Boyd, T. 0. Boyd, Sam Brody, Felix Ciminelli, Donald Clark, Kenneth Curtiss, Frank Darley, Madeline Darley, Clarence Denis, Zyg' Evans , ' Lawrence Fisher , Archie Fourne , Zygmund Gill, Harry Gutentag , Edward Kalski, Howard Kingsley , Chester Konefke , Chester Kuhn , Theodore Lingo, Jack Lippert, Joseph Maffetone, John MacFarlan , LeRoy Midgley, Dewey Morris, William Morris, Barney Pack, James Parker , Chester Piatkowski , Herbert Schalk, Robert Sims , Clarence Snider, Truman Squibbs, E. W. Warsow, George Whalen, and Bus Winebrenner. The stipulation contains a prefatory recital of procedural matters which is here omitted. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the basis of the stipulation and the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Detroit Gasket and Manufacturing Company, De- troit, Michigan, its officers, agents, successors and assigns : 1., Will,not : (a) Discourage membership in any labor organization of its employees by discriminating in regard to hire or tenure of employment or any term or condition of employment; (b) In any other manner interfere, with, restrain, or coerce 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 concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed to them by Section 7 of the National Labor Relations Act. 2. Shall take the following affirmative action which the_ .Board finds will effectuafe't'liepolic es'1ohf'.the'Act': (a) Pay over to the Regional Director of the National Labor Relations Board for the Seventh Region the sum of $5500.00 to be distributed by him as shall be determined by the persons named in Appendix A.6 (b) Immediately post a notice in a conspicuous place in its plant at Detroit, Michigan, stating as follows : The Detroit Gasket and Manufacturing Company will not : (a) Discourage membership in any labor organization of its employees by discriminating in regard to hire or tenure of em- ployment or any term or condition of employment; (b) In any other manner interfere with, restrain, or coerce its employees in the exercise of their rights to self organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed to them by Section 7 of the National Labor Relations Act. and maintain said notice for a period of thirty (30) consecutive days. 6 Appendix A is attached to our order and is not set forth here. DETROIT GASKET AND MANUFACTURING COMPANY 243 (c) Notify the Regional Director for the Seventh Region in writing within ten (10) days from the date of this order what steps the respondent has taken to comply herewith. . And it is further ordered that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent discrimi- nated,in regard to the hire and.tenure,.of.employrnent of Edward rDudeki; John..:$artnaus, .:Juliane J,aixkowski,', James Johnson, Louis Mosier, Henry J. Mullinger, Bernice Puckett, and Allen Smith, and in so far as it alleges that the respondent has en- couraged, sponsored, dominated or interfered with Detroit Gasket Employees Association within the meaning of Section 8 (2) of the Act and engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. 4. The Company hereby consents to the entry by the United States Circuit Court of Appeals for the appropriate circuit, upon application by the Board of a consent decree, copy of which is annexed hereto,' enforcing the order of the Board in the form hereinabove set forth and hereby waives further notice of the application for such decree. 5. It is understood and agreed that the entire agreement is contained within the terms of this stipulation and that there is no verbal agreement of any kind which varies, alters, or adds to this stipulation, and that compliance by the Company with the fore- going order shall be a final and complete disposition of all allega- tions set forth in the complaint in the above entitled matter, and that the Company shall not be compelled to reinstate any of the persons listed in Appendix A' of the above Order. 6. It is further understood and agreed that this stipulation is subject to the approval of the Board and shall become effective ..immediately upon the granting of such approval. On October 6, 1939, the Board ordered that the stipulation be ap- proved and made a part of the record in this matter. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a Michigan corporation engaged at its plant in Detroit, Michigan, in the manufacture and sale of metallic and non- Iiietallic gaskets and other auto body trim supplies. In 1937, 77 per cent of the respondent's purchases of raw materials, consisting prin- '' The consent decree is not set forth herein. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cipally of paper, cork, steel, and asbestos, and aggregating more than $500,000, were made outside the State of Michigan. In 1937, 18 per cent of the respondent's total sales, which aggregated more than $500,000, were made outside the State of Michigan. On September 28, 1937, the respondent employed 941 production workers, exclusive of clerical and supervisory employees. We find that the above-described operations constitute a continuous flow of trade, traffic, and commerce among the several States. ORDER Upon the basis of the above findings of fact and stipulation and upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Detroit Gasket and Manu- facturing Company, Detroit, Michigan, its officers, agents, successors, and assigns : 1. Will not: . (a) Discourage membership in any labor organization of its em- ployees by discriminating in regard to hire or tenure of employment or any term or condition of employment; (b) In any other manner interfere with, restrain, or coerce 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 coricdrted activities for the purpose of collective bargaining or other mutual aid or protection , as guaranteed to them by 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) Pay over to the Regional Director of the National Labor Rela- tions Board for the Seventh Region the sum of $5,500 to be distributed by him as shall be determined.by the persons named in Appendix A; (b) Immediately post a notice in a conspicuous place in its plant at Detroit, Michigan, stating as follows : The Detroit Gasket and Manufacturing Company will not: (a) Discourage membership in any labor organization of its em- ployees by discriminating in regard to hire or tenure of employment or any term or condition of employment; (b) In any other manner interfere with, restrain , or coerce its employees in the exercise of their rights to self -organization , to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or DETROIT GASKET AND MANUFACTURING COMPANY 245 protection, as guaranteed to them by Section 7 of the National Labor Relations Act. and maintain said notice for a period of thirty (30) consecutive days; (c) Notify the Regional Director for the Seventh 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 FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent discriminated in regard to the hire and tenure of employment of Edward Dudek, John Hartlnus, Juliane Jankowski, James Johnson, Louis Mosier, Henry J. Mullinger, Bernice Puckett, and Allen Smith, and in so far as it alleges that the respondent has encouraged, sponsored, dominated, or interfered with Detroit Gasket Employees Association within the meaning of Section 8 (2) of the Act and engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. APPENDIX A Tilley Barnett Gregory Bourke Dora Sledger Boyd T. G. Boyd Sam Brody Felix Cimiiielli Donald Clark Kenneth Curtiss Frank Darley Madeline Darley Clarence Denis Zyg Evans Lawrence Fisher Archie Fourne Zygmund Gill Harry Gutentag Edward Kalski Howard Kingsley Chester Konefke Chester Kuhn Theodore Lingo Jack Lippert Joseph Maffetone John MacFarlan LeRoy Midgley Dewey Morris William Morris James Parker Barney Pack Chester Piatkowski Herbert Schalk Robert Sims Clarence Snider Truman Squibbs Elmer W. Warsow George Whalen Bus Winebrenner