The Athens Stove Works, Inc.

In the Matter of THE ATHENS STOVE WORKS, INC. and INTERNA- TIONAL MOLDERS UNION OF NORTH AMERICA Case No. C-877.-Decided December 7, 1939 Stove Manufacturing Industry-Interference , Restraint, or Coercion : charges of, dismissed-Discrimination : charges of dismissed-Complaint: dismissed. Mr. Alexander E. Wilson, Jr., for the Board. Mr. R. A. Davis and Mr. Clem J. Jones, of Athens, Tenn., for the respondent. Mr. Richard A. Williams, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by International Molders Union of North America, herein called the Union, the National Labor Relations Board, herein called the Board, by Charles N. Feidelson, Regional Director for the Tenth Region (Atlanta, Georgia), issued its com- plaint dated April 27, 1938, against The Athens Stove Works, Inc., herein called the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce 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. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent ' and the Union. The complaint alleged in substance (1) that on and after August 31, 1937, the respondent discouraged membership in the Union by discrimination in regard to the hire and tenure of Charles Bowen; and (2) that by the above discrimination, by threats and by other statements and acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On May 4, 1938, the respondent filed an answer to the complaint denying that it had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held in Athens, Tennessee, on May 5 and 6, 1938, before Webster Powell, the Trial Examiner duly 18 N. L. It. B., No. 23. 148 THE ATHENS STOVE WORKS, INCORPORATED 149 designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issue was afforded all parties. At the close of the Board's case, counsel for the Board moved to conform the complaint to the proof. The Trial Examiner granted the motion. At the close of the hearing, counsel for the respondent moved to dismiss the complaint. The Trial Examiner denied the motion. During the course of the hearing the Trial Examiner made other rulings on motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On September 1, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties. He found 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 Act by discharging and refusing to reinstate Charles Bowen because of Bowen's union activity. He recommended that the respondent cease and desist from the unfair labor practices and, affirmatively, offer full reinstatement with back pay to Bowen. Thereafter, on September 15, 1938, the respondent filed exceptions to the Intermediate Report. On March 9, 1939, pursuant to permis- sion granted by the Board, the respondent presented oral argument before the Board in Washington, D. C., and filed a brief, in support of its contentions. The Union did not appear at the oral argument. The Board has considered the brief and the exceptions and, in so far as the exceptions are inconsistent with the findings, conclusions, 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 1. THE BUSINESS OF THE RESPONDENT The respondent is a Tennessee corporation with its principal office and place of business in Athens, Tennessee. It is engaged in the manufacture and sale of coal, wood, and gas stoves and circulating heaters, and it employs approximately 370.employees. The respond- ent obtains a substantial amount of its raw materials from outside the State of Tennessee. Its annual sales are valued at $1,554,149, and it ships more than 90 per cent of its products to States other than Tennessee. The respondent admits that it has been and is engaged in interstate commerce within the meaning of the Act. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATION INVOLVED International Molders Union of North America is a labor organi- zation affiliated with the American Federation of Labor. It admits to membership molders and foundry workers. III. THE ALLEGED INTERFERENCE , RESTRAINT, COERCION, AND DISCRIMINATION On June 3, 1937, Charles Bowen, a molder, became an organizer for the Union and thereafter he spoke to several of the respondent's employees in an effort to interest them in the Union. Bowen testi- fied that he pursued this activity "secretly." He testified further that during this period F. O. Mahery, the respondent's manager, would not speak to him and assumed an unfriendly attitude toward him. Mahery denied this testimony. Manager Mahery and Glenn Taylor, the respondent's foreman, testified that they did not learn of Bowen's union activity until after he was discharged on August 31, 1937. From the record it appears, and we find, that the respondent dis- charged Bowen during the morning of August 31, under the follow- ing circumstances. Bowen, in working on the part of a stove known as a face casting, was using a sieve known as a No. 4 riddle although the respondent's rules required that a No. 6 riddle, having a finer mesh, be used on the type of work in which Bowen was then en- gaged.'. Upon discovering that Bowen was using the coarser meshed sieve, Foreman Taylor told Bowen to "break up your work and turn it all in tonight, I am going to have to let you go." Thereupon the following conversation ensued : [Bowen:] What is the matter . . . [Taylor:] Using a No. 4 riddle .. . [Bowen:] Why pick on me, the rest of the boys are using them the same as I am . . . [Taylor:] Well, you are the only one that's got caught .. . In this conversation Taylor also denied that the discharge was for union activity. Several employees testified to their familiarity with and frequent violation of the respondent's rule. Foreman Taylor testified that while he suspected other employees of ignoring the respondent's rule in this respect, he "couldn't catch them." The record shows that 'Failure to use fine enough mesh may result in a rough or pitted surface on a casting and make it unsuitable for use in the finished product . Bowen stated that the use of a coarser meshed riddle enabled him to sift his sand faster and thus increase the quantity of his work. THE ATHENS STOVE WORKS, INCORPORATED 151 the respondent had previously discharged three other _ workers for failure to observe this rule. Following his discharge Bowen talked to a group of some 20 molders in the respondent's plant and asked them to attend a meet- ing of the Union to be held on September 1, 1937. Bowen testified that at the time of the scheduled meeting he observed Taylor, and Hughes, another of the respondent's foremen, in a car parked in front of the entrance to the meeting hall, and that Manager Mahery appeared on a street corner near the hall. This testimony was not corroborated. Taylor and Mahery denied generally that they had ever watched or spied upon any of the respondent's employees. Hughes did not testify.' Upon the basis of this testimony alone we do not find surveillance of the meeting by the respondent. Following the aforesaid meeting Bowen joined the Union. On the following day, September 2, 1937, the Union requested Manager Mahery to reinstate Bowen. Mahery refused this request with the explanation that he had "to back up (his) foremen.", In view of the secret nature of Bowen's union activities, the lack of a showing that the respondent was aware of these activities, the violation by Bowen of a rule for which others had been discharged, the proximity of his discharge to this violation, the circumstances surrounding his discharge, and the absence of credible evidence of anti-union activity on the part of the respondent, we are unable to conclude that Bowen's discharge was for union membership or activity. We find that the record does not support the allegations of the complaint that the respondent discriminated in regard to the hire and tenure and terms and- conditions of employment of Charles Bowen, thereby discouraging membership in a labor organization, or that the respondent interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We will, therefore, dismiss the complaint. Upon the basis of the foreging 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 Athens Stove Works, Inc., Athens, Tennessee, occur in commerce, within the meaning of Section 2 (6) and (7) of the Act. 2. International Molders Union of North America is a labor or- ganization 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- 283029- I 1-vol. 18-11 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zation, and engaging in an unfair labor practice within the meaning of Section 8 (3) of the Act. 4. The respondent has not interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, within the meaning of Section 8 (1) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the complaint against The Athens Stove Works, Inc., Athens, Ten- nessee, be, and it hereby is, dismissed. MR. WILLIAM M. LEISExsoN took no part in the consideration of the above Decision and Order.