Nash-Kelvinator Corp.

In the Matter of NASH-KELVINATOR CORPORATION and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL 174 Case No. C-1066.Decided December 07, 1939 Refrigerator, Stove, and Washing Machine Manufacturing Industry- Interfer-ence, Restraint, or Coercion: charges of violation of Section 8 (1), dismissed- Discrimination: charges of, in regard to hire and tenure of employment, not sustained ; discharge for violation of company rule against solicitation on em- ployer premises, although rule instigated and attempted to be enforced by rival union, not a violation of Section 8 (3). Mr. Harry N. Casselman, for the Board. Wiley, Streeter & Ford, by Mr. Richard Ford, of Detroit, Mich., and Cook, Smith, Jacobs & Beake, by Mr. Grant L. Cook and Mr. Walter F. Probst, of Detroit, Mich., for the respondent. Mr. Ernest Goodman, of Detroit, Mich., for the United. Mr. Harry Brownstein, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and 'amended charges duly filed by International Union, United Automobile Workers of America, Local 174, herein called the United,' the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventh Region (Detroit, Michigan), issued its complaint, dated July 26, 1938, against Nash- Kelvinator Corporation, Baltimore, Maryland, 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. A . copy of the complaint and 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 Cooper, Gerald Leonardy, and Nor- ' The United was designated in the charge as Local 174 , U. A. W. A. 18 N. L. R. B., No. 88. 738 NA'SH KELVINAT'OR 0OR.PORAT'ION 739 man Neal because of their activity on behalf of the United, thereby discouraged membership in the United, and interfering with, re- straining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. On July 30, 1938, the respondent filed an answer to the complaint, admitting certain allegations as to the nature of its business but denying that it had engaged in or was engaging in the alleged unfair labor practices. Pursuant to the notice, a hearing was held in Detroit, Michigan, from August 1 to August 6, 1938, inclusive, and on August 8, 1938, before Webster Powell, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing upon the issues was afforded all parties. At the commencement of the hearing, upon motion by counsel for the Board and without objection thereto by the respondent, amended charges were filed and the complaint was amended to include an allegation that Stanley J. Reardon had been discriminatorily discharged by the respondent. During the course of the hearing the Trial Examiner made 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 committed. The rulings are hereby affirmed. Thereafter, the Trial Examiner filed his Intermediate Report and Supplemental Intermediate Report, copies of which were duly served on all parties. He found that the respondent had engaged in 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 by discharging and refusing to reinstate Cooper and Leonardy, and by laying off and refusing to reinstate Neal. He found further that the respondent had not engaged in unfair labor practices by discharging and refusing to reinstate Reardon. The Trial Examiner recommended that the re- spondent be ordered to cease and desist from engaging in the unfair labor practices and that it reinstate with back pay the employees found by him to have been discriminatorily discharged or laid off. He recommended dismissal of the complaint as to Reardon. On Decem- ber 5, 1938, the respondent filed exceptions to the Intermediate Report and Supplemental Intermediate Report and requested oral argument before the Board.. The United filed no exceptions to the Intermediate Report. Pursuant to notice, a hearing was held before the Board on Sep- tember 12, 1939, in Washington, D. C., for the purpose of oral argu- ment. The respondent and the United were represented by counsel and participated in the argument. The Board has considered the 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exceptions to the Intermediate Report and Supplemental Intermediate Report and to the extent indicated in the findings, conclusions of law, and order set forth below, hereby sustains them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, Nash-Kelvinator Corporation, is a Maryland cor- poration with its principal office in Baltimore, Maryland, and its gen- eral offices in Detroit, Michigan. The respondent controls subsidiary corporations located in Wisconsin, Illinois, Pennsylvania, New York. Massachusetts, Delaware, Michigan, Ohio, the Dominion of Canada, and England. The business of the respondent is conducted in two geographically separated divisions, namely, the Nash Motors Division and the Kel- vinator Division. The' principal plants of the Kelvinator Division are the Plymouth Road plant, Fort Street plant, and Mackie Avenue plant, located in Detroit, Michigan, and a plant located in Grand Rapids, Michigan. In this proceeding we are concerned only with the activities of the respondent at its Plymouth Road plant. . The Kelvinator Division is engaged in the production, assembly, sale, and distribution of household refrigerators, electric ranges, elec- tric hot water heaters, washing machines, ironers, water coolers, bever- age coolers, commercial refrigerator units, air conditioning equipment, automatic oil burners, conversion oil stokers, ice cream cabinets, and similar articles. Purchases by the respondent for its plants in Michi- gan consist of aluminum sheets, brass bars, copper tubing, iron sheets, steel tubing, asphalt compound, oils, paints and thinners, lumber, excelsior, solder, electro tin plate materials, refrigerants, condensers, oil burner parts, stokers, fittings, suction fans, and various other commodities used in the manufacture of its products. Purchases by the respondent for its Michigan plants for the six- months' period between October 1, 1937, and March 31, 1938, were approximately $6;234,000, 69.44 per cent of which came from sources outside the State of Michigan. During the same period, sales of finished products at the respondent's Michigan plants amounted to $9,119,583, 91.98 per cent of which were sold and shipped to dis- tributors and dealers situated outside the State of Michigan. II. THE ORGANIZATIONS INVOLVED International Union, United Automobile Workers of America, Local 174, is a labor organization admitting to membership em- ployees of the respondent. NASH-KELVINATOR CORPORATION 741 Mechanics Educational Society of America, herein called the M. E. S. A., is a labor organization admitting to membership all per- sons whose normal occupation is in the automobile, metal, or allied industries. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The M. 'E. S. A. started organizing the respondent's employees at its Plymouth Road plant in December 1936, and by January 1937, had secured the membership of a majority of the employees. There- after a series of labor disputes and disturbances ensued at the Ply- mouth Road plant. Two strikes, each of several weeks' duration, were called by the Al. E. S. A., one in February and the other in June, 1937. On July 5, 1937, M. E. S. A. members ejected Thornton Griffith, a departmental superintendent, from the plant, when he attempted to intervene with regard to an employee whom the.M. E. S. A., for disciplinary reasons, had ordered to ' leave the plant. Walter Bartels, the general superintendent, was threatened with the same treatment accorded Griffith if he interfered with the M. E. S. A.'s activity in this respect. In the early part of July, the M. E. S. A. became "quite upset" about 'a movement to organize the plant inspectors into another labor organization known as the Mechanical Refrigeration Guild, here- after called the Guild. On July 8 twelve M. E. S. A. shop stewards left their work without the respondent's permission, their purpose being to "break up" a meeting of the Guild. For taking leave with- out authority, the stewards were laid off for a week. On July 10, after the-M. E. S. A. had unsuccessfully sought the immediate rein- statement of the stewards, groups of M. E. S. A. members forcibly evicted about five inspectors from the plant. On July 13 it gang of M. E S. A. members lingered outside the plant after working hours and, while on the respondent's property, physically assaulted Jared Butler, one of the organizers of the Guild, and inflicted severe inju- ries upon him. On July 14, 1937, upon complaint of the M. E. S. A. that the Guild was soliciting employees on the respondent's property the respondent posted the following notice to its employees : All Kelvinator employees will please observe the following plant rules which are effective as of this date : (1) No solicitation for membership into any union will be permitted on company time or company property. (2) All employees are hereby cautioned against intimidation and coercion of their fellow employees on company time or com- pany property. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees violating the above rules will be either, in the dis- cretion of the Management, laid off for one week or dismissed from the service of the company. This notice applied equally to all labor organizations. Previous to this time the M. E. S. A. and the Guild had been permitted to solicit employees on the respondent's time and property. Beginning about July 15, 1937, the M. E. S. A. and the respondent held frequent conferences concerning wages, hours, working condi- tions, and other conditions of employment. On October 23, 1937, the negotiations culminated in a written contract in which the re- spondent recognized the M. E. S. A. as the exclusive representative of the respondent's employees in all its plants in Detroit, Michigan. B. The alleged discriminatory discharges William Cooper and Gerald Leonardy.-Cooper had been in the respondent's employ since November 1933. He was one of the organ- izers of the M. E. S. A. at the respondent's Plymouth Road plant, and was recognized by both the employees and the respondent as one of the leaders in M. E. S. A. activities at the plant. On July 11, 1937, the respondent disciplined Cooper, Orville Plake, and Jay Crossley with one week lay-offs for participating in the events of July 10, heretofore mentioned. Together they constituted the grievance committee, which functioned as a representative of the M. E. S. A. members in its dealings with the respondent, and which was generally regarded as carrying on the leadership in M. E. S. A. activities. On July 13, during his lay-off, Cooper returned to the plant with Plake and Crossley, warned several inspectors to cease their activities on behalf of the Guild, and took a part in the Butler altercation. As a result, on July 15, Cooper and four other em- ployees, including Plake and Crossley, were discharged for "viola- tion of company rules relative to intimidation of fellow employees." On July 21, after a conference with an M. E. S. A. official, the re- spondent agreed to reinstate Cooper, Plake, and Crossley, with back pay for the period during which they were not employed. In letters informing them of their reinstatement, the respondent requested their "observance of the shop rules during future employment." In the meantime, however, after they were discharged on July 15, Cooper, Plake, and Crossley examined the possibility of affiliating with the United in order to organize the employees into a "stronger organization." The three joined the United about July 21. On July 22, pursuant to his notification of reinstatement, Cooper returned to work and distributed among the respondent's employees application cards for membership in the United. Although most of Cooper's solicitation occurred outside the respondent's plant, he solicited two NASH-KELVINATOR CORPORATION 743 employees while in the plant. The evidence is conflicting as to whether this solicitation occurred during working hours. Later in the day Arthur Morin, an employee who was a member of the M. E. S. A., informed Bartels, the respondent's general superintend- ent, of Cooper's activity. Bartels secured the written statements of the two employees whom Cooper had solicited inside the plant. He then called Cooper into his office, charged him with soliciting em- ployees to become members of the United while on company prop- erty, and discharged him forthwith. On the same day, July 22, Plake and Crossley also distributed United membership cards to employees outside of the respondent's plant. Such distribution and solicitation did not occur, however, during working hours or on the respondent's property. On July 26, Plake and Crossley were discharged because of "an evident ani- mosity" toward them by other employees, stated by the respondent to be "unquestionably due" to their participating in the events of July 10 and July 13,2 heretofore mentioned. On August 9, Plake and Crossley pledged at an M. E. S. A. executive meeting that they "would stand by the M. E. S. A. 100 per cent," and were reinstated in the organization.3 On August 13, after the M. E. S. A. had in- tervened for them, the respondent reemployed Plake and_ Crossley. Shortly after his discharge on July 22 Cooper was also expelled from the M. E. S. A., but was unable to secure reinstatement. He was likewise unsuccessful in an effort to induce the respondent to reemploy him. The evidence shows that Cooper was discharged because of a vio- lation of the respondent's rule against solicitation of employees on company property to become members of a labor organization. Thus the pertinent inquiry is whether, under the circumstances described above, the rule was adopted, and enforced against Cooper, in order to discourage membership in the United. Admittedly the rule against solicitation was adopted and posted by the respondent at the instigation of the M. E. S. A. The rule, however, which is within an employer's discretion to promulgate and enforce, was adopted by the respondent during a period of industrial strife and, as described above, after union activity on the respondent's time and property had seriously disrupted production operations, had flouted plant discipline, and was threatening further discord. Under the circum- stances, the fact that the M. E. S. A., whose membership campaign had by this time been concluded, was, along with the respondent, a These were the reasons given for the discharges of Plake and Crossley as set forth in letters to them notifying them of their discharges. s Although the evidence indicates that Plake and Crossley were expelled from the Al. E. S. A., the time of such expulsion does not appear. 283029-41-vol. 18--48 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chief beneficiary under the rule, is not controlling .4 We find that the institution of the rule prohibiting solicitation on the respondent's time and property was not discriminatory.5 We have little doubt that the M. E. S. A. was responsible for insti- gating the enforcement of the rule against Cooper, and that it was desirous of furthering the welfare of its own organization rather than of observing compliance with plant rules. Cooper's infraction of the rule was first reported to the respondent by Morin, a member of the M. E. S. A. Moreover, the M. E. S. A. played an important role in events immediately preceding and following the discharge. We are satisfied that the M. E. S. A. undertook to secure the dis- charges of Plake and Crossley because they solicited for the United. We do not believe that they were discharged on July 26 for the cause assigned by the respondent, since their discharges pertained to mat- ters for which Plake and Crossley were forgiven by the respondent when they were reinstated on July 21. Furthermore, after having re- entered the fold of the M. E. S. A., they were reinstated with the re- spondent on August 9. We do not believe, however, that the role played by the M. E. S. A. in attempting to secure Cooper's discharge is relevant. The rule was violated and the penalty followed. Nor do we find discrimination between the treatment accorded by the respondent to Cooper and its treatment of Plake and Crossley. Solicitation by the latter two on July 22 did not occur either on company time or property. Their discharges on July 26, while they were still adherents of the United, are not alleged as unfair labor practices, and were not for violation of the rule broken by Cooper. Their reinstatement, therefore, as contrasted with the refusal to rein- state Cooper, ' cannot afford a basis for a finding of discrimination against the latter. Leonardy had been employed by the respondent since January 1934. He was one of the organizers of the M. E. S. A., and there- after actively took part in its affairs. He testified that he became "disgusted" with the M. E. S. A. in June 1937 because it had gained A It should be noted, moreover , that the rule was promulgated before the United appeared on the scene. In making our finding herein, we do not decide that under different circum- stances the adoption by an employer of a plant rule which has the effect of favoring one of two competing unions during aperiod of union organization may not be discriminatory and within the proscription of the Act, despite the abstract reasonableness of the rule. Cf. Matter o f Botany Worsted Mills and Textile Workers Organizing Committee, 4 N: L: R. B. 292, enf'd as mod. N. L. R. B. v. Botany Worsted Mills, Inc., 106.F. (2d) 263 (C. C. A. 3) ; Matter of American Potash & Chemical Corporation and Borax and Potash Workers' Union No. 20181, 3 N. L. R. B. 140, enf'd N. L. R. B. v. American Potash and Chemical Corp., 98 F. ( 2d) 488 (C. C. A. 9), cert. den. 306 U S. 643 ; Matter of the Federal Bearings Co., Inc. and its affiliate or subsidiary, Schatz Manufacturing Company and Local 297, International Union, United Automobile Workers of America, 4 N. L. B . B. 467, enf'd as mod. N. L. R. B. v. Federal Bearings Co., Inc., 109 F. (2d) 945 (C. C. A. 2). 6 Matter of Van Iderstine Company and District . # 50 of the United . Mine Workers of America, 17 N. L. R. B. 771. NASH-KELVINATOR CORPORATION 745 too little from the strike of June 1937, and that his dissatisfaction with it increased when the respondent discharged Cooper, Plake, and Crossley on July 15. On July 22 Leonardy obtained United mem- bership cards from Cooper, and passed them out on company property to employees in his department. This was reported to the respondent by a member of the M. E. S. A. On July 23 Bartels laid off Leonardy for one week for soliciting employees to join the United on company property. Before Leonardy was permitted to return to work, how- ever, he was discharged. W. F. Armstrong, the respondent's vice president, testified that after he learned that Leonardy was merely laid off, while under similar circumstances Cooper had been dis- charged, he obtained and followed the advice of counsel to discharge Leonardy in order to impose consistent penalties. Leonardy was expelled from the M. E. S. A.' on July 28, 1937, and thereafter was unable to obtain reinstatement in that organization. The circumstances surrounding Leonardy's discharge are similar to those of Cooper's, and like considerations impel us to the same find- ings and conclusion as made in the case of Cooper. The United contends that Cooper and Leonardy had no knowledge of the rule against solicitation on'company property for which they were discharged. We believe.the evidence indicates, and we find, that Cooper and Leonardy did have knowledge of the rule in ques- tion.e It is thus unnecessary to consider what effect, if any, Cooper's or Leonardy's lack of knowledge of the rule would have in determin- ing the propriety of their discharges. We find that the respondent did not discharge Cooper or Leonardy for their union membership or activities, and did not thereby interfere with, restrain, or coerce its employees in the exercise of the rights guaranteed by Section 7 of the Act. Norman Neal.-Neal had been employed by the respondent since April 1933." He was one of the organizers of the M. E. S. A. in the respondent's plant, and thereafter continued to be active in its affairs. On July 21, 1937, he became a member of the United, and on the 6 In regard to Cooper, on July 21 , Cooper was told to obey plant rules when he returned to work on July 22. On the morning of July 22, the day of his discharge , Plake told Cooper before he entered the plant not to take any applications for membership in the United inside the plant. As soon as Cooper reported for work, he asked the supervisor to watch him closely to see that he did not violate any rules "I could be fired for." After his discharge, when asked by Leonardy if he was discharged for passing out United cards on company time, Cooper replied, "You know I know better than that." Moreover, on and after July 14, the rule was posted on bulletin boards and time clocks throughout the plant, including the bulletin board in the department where Cooper worked . In regard to Leonardy, Leonardy was employed during the time that the rule was widely published and posted on his departmental bulletin board. Although he testified that prior to July 23 he knew of no change in the respondent's policy prohibiting solicitation , the evidence shows that he was cognizant of the change . He testified that he was careful not to solicit during working hours, and that he asked Cooper on July 22 if he (Cooper) was discharged for soliciting on the respondent 's property. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD following day, he solicited employees in front of the respondent's plant to become members of the United. A few days later, the M. E. S. A. expelled Neal from its. organization. Thereafter, at two conferences with the respondent in July and August 1937, the M. E. S. A. sought to induce the respondent to discharge Neal. The M. E. S. A.'s attempts, however, proved unsuccessful and the respond- ent kept Neal in its employ. On October 4, 1937, Neal was laid off when his department was shut down for a period of from 1 to 3 weeks for inventory purposes. The complaint alleges that Neal was discriminatorily discharged' on October 4, 1937. The respondent asserts that Neal was not dis- charged, but was laid off on October 4 and has not since been re- employed because it is unable to offer Neal employment on other work for which he is qualified and under different supervisors, changes made necessary because of Neal's previous "insubordinate and uncooperative" attitude in the department where he regularly worked. In January or February 1937, Neal was transferred from his usual work shift because of "too much trouble" between him and other employees on the same shift. For several months thereafter Neal's supervisors were "always complaining that they just couldn't get along with him." On one occasion when John Brown, a group leader, and Neal became involved in an argument concerning the work of employees in their department, Hardy, floor superintendent over Neal, warned Neal to cooperate and not to be "bullheaded." Neal was also threatened with discharge in the summer of 1937 if he continued a practice of "walking off the job" without permission. In August 1937 Bartels and Frank Hardy, stated to Byron E. Ball, the respondent's industrial relations manager, that Neal was "sticking his nose ... in the affairs of the rest of the employees; ... that he had an exaggerated idea of his knowledge of plating ... and he was a general pain in the neck to the foremen and superintendents." No disciplinary action was taken at this time, however. On October 8, during the inventory period, Ball asked Bartels and Hardy if Neal should be returned to work after inventory was completed. They replied that Neal was a "disturber and would continually upset (the) department." Neal was not thereafter reemployed. In the latter part of January 1938, Neal renounced his affiliation with the United, and on February 10, 1938, he was reinstated in the M. E. S. A.7 For several weeks thereafter the M. E. S. A. attempted, without success, to obtain Neal's reinstatement with the respondent. We do not believe that the evidence affords sufficient basis for a finding that Neal was discriminated against in regard to hire and 7 Unfair labor practice charees on behalf of Neal had been filed with the Regional Direc- tor for the Seventh Region on December 20, 1937, before Neal had withdrawn from mem- bership in the United. N•ASH-KELVINATOR CORPORATION 747 tenure of employment. The respondent's continued tolerance of Neal's conduct over a period of several months without imposing any disciplinary action until urged to do so by the M. E. S. A. creates some suspicion as to the motives of the respondent in refusing to rehire Neal after the inventory period was over. On the other hand, it cannot be said that the respondent acted in response to the wishes of M. E. S. A., for it refused to discharge Neal although so requested by the M. E. S. A. as early as July. It again refused in August. The record reveals that Neal was considered "insubordinate and uncooperative" and that the respondent relied upon the report of its own supervisory employees in refusing to reemploy him after inventory in the department where he was formerly employed. We find that the respondent did not discriminate against Neal in regard to hire and tenure of employment because of his membership or activities in the United, and did not thereby interfere with, re- strain, or coerce its employees in the exercise of the rights guaranteed by Section 7 of the Act. Stanley J. Reardon.-The complaint herein alleged that Reardon was discriminatorily discharged on December 7, 1938. The Trial Examiner did not find discrimination and recommended in his Inter- mediate Report that the complaint be dismissed as to Reardon. The United did not file exceptions to this recommendation. We have, nevertheless, examined the evidence pertaining to Reardon's discharge and concur in the Trial Examiner's findings and recommendation. We shall not, however, discuss in detail the facts pertaining to his discharge.' We find the respondent did not discharge Reardon for his union membership and activities and did not thereby interfere with, restrain, or coerce its employees in the exercise of the rights guaranteed by Section 7 of 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 occur in commerce within the meaning of Section 2 (6) of the Act. 2. International Union, United Automobile Workers of America, Local 174, and Mechanics Educational Society of America, are labor organizations within the meaning of Section 2 (5) Of the Act. 9 See Matter of Virginia Ferry Corporation and Masters, Mates d• Pilots of America No. 9, Matter of Virginia Ferry Corporation and International Seamen's Union, 8 N. L. R. B. 730, enf'd as mod., Virginia Ferry Corp . v. N. L. R. B., 101 F. ( 2d) 103 (C. C. A. 4). 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The respondent has not discriminated in regard to hire or tenure of employment and has not thereby engaged in unfair labor practices 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 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 Nash-Kelvinator Corporation, Detroit, Michigan, be, and it hereby is, dismissed.