Premier Furnace Co.

In the Matter Of PREMIER FURNACE COMPANY and LOCAL No. 409, INTERNATIONAL MOLDERS UNION OF NORTH AMERICA Case No. C-1361.-Decided May 1, 1940 Furnace, Heating, and Air Conditioning Equipment Manufacturing Industry- Interference, Restraint, and Coercion : anti-union remarks by foreman; respond- ent ordered to cease and desist therefrom, but since respondent complied with Trial Examiner's recommendations, not required to post notices ( Leiserson, dissenting )-Discrimination: charges of, as to 24 employees, not sustained- Unit Appropriate for Collective Bargaining: production and hourly paid em- ployees, exclusive of office and clerical employees and those in a supervisory capacity-Collective Bargaining : charges of refusal to bargain collectively, not sustained. Mr. Earl R. Cross, for the Board. Mr. Carl D. Mosier, of Dowagiac, Mich., for the respondent. Mr., Elmer Reynolds, of Kalamazoo, Mich., for the I. M. U. Mr. Herbert B. Galton, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Charges and amended charges having been filed on June 3, 1938,1 and May 6, 1939, respectively, by Local No. 409, International Molders Union of North America, herein called the I. M. U., the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventh Region (Detroit, Michigan), issued and duly served its complaint, dated May 15, 1939, against Premier Fur- nace Company, Dowagiac, Michigan, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sec- tion 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. I On March 28, 1939, the Board, pursuant to Article III, Section 10 (c) (2 ), and Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered this case consolidated with a representation case (R-1404) for the pur- poses of hearing and for all other purposes On March 15, 1940, the Board, pursuant to Article II, Section 36 (d), and Article III, Section 10 ( c) (4), of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered the two cases severed. 23 N. L. R. B., No. 38. 502 PREMIER FURNACE COMPANY 503 In respect to the unfair labor practices, the complaint, as amended at the hearing, alleged, in substance, that (1) on May 16, 1937, June 22, 1937, and on numerous dates thereafter down to the date of the complaint, the respondent refused to bargain collectively with the I. M. U. as the exclusive representative of the respondent's employees in an appropriate unit although prior to and at all times since June 22, 1937, the I. M. U. represented a majority of the employees in said unit; (2) by the above and other acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act; (3) as a result of the above unfair labor practices, the I. M. U. called a strike of the respondent's employees on or about April 18, 1938; and (4) when the respondent resumed operations in its plant on or about June 8, 1938, it refused to employ or to reinstate 24 named individuals who had engaged in said strike, except upon the condition that they renounce their membership in the I. M. U., for the reason that they had joined and assisted the I. M. U. and had participated in the strike and otherwise engaged in concerted activity with other employees of the respondent for the purpose of collective bargaining and other mutual aid and protection, thereby discriminating in regard to their hire and tenure of employ- ment and discouraging membership in the I. M. U. The respondent filed an answer admitting the allegations of the complaint relating to its business but denying that it had engaged in the alleged unfair labor practices. Pursuant to notice duly served upon the respondent and the I. M. U., a hearing was held at Dowagiac, Michigan, from May 25 to June 3, 1939, before Berdon M. Bell, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel, and the I. M. U. by a representative thereof. All partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the conclusion of the Board's case and at the conclusion of the hearing, the respondent moved to dismiss the complaint. The Trial Examiner overruled the motions. During the course of the hearing, the Trial Examiner made several rulings on motions and on objec- tions 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. Following the hearing, pursuant to leave granted to all parties by the Trial Examiner, the respondent filed a brief with him. On Sep- tember 12, 1939, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the respondent and the I. M. U. He found that the respondent had engaged in and was 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom. He, further found that the respondent had not engaged in unfair labor practices within the meaning of Section 8 (3) and (5) of the Act, and recommended dismissal of the allegations of the complaint in this respect. On September 22, 1939, the I. M. U. filed exceptions to the Inter-, mediate Report. The respondent thereafter notified the Board that it had complied with, the recommendations of the Intermediate Re- port. Pursuant to request therefor by the respondent and notice thereof to the parties, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on February 1, 1940. The respondent was represented by counsel and participated therein. The I. M. U. did not appear. The Board has considered the exceptions to the Intermediate Report and 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 Premier Furnace Company, the respondent, is a Michigan corpora- tion with its principal office and place of business at Dowagiac, Mich- igan. It is engaged in the production, assembly, sale, and distribu- tion of cast iron and steel warm air gravity furnaces, cast iron and steel forced air furnaces, centrifugal burners, summer air condition- ing equipment, oil burners, stokers, radiator parts, fittings, and con- trols. The principal raw materials used by the respondent are pig, iron, scrap, coke, sheet steel, motors, blower wheels, steel drums, radiators, molding sand, core sand, crating lumber, controls, and, coal. Approximately 85 per cent of these raw materials are obtained by the respondent from points outside the State of Michigan. During the "period ended April 30, 1939," 2 about 81 per cent of the respondent's products, of a, value of $261,238, were shipped to points outside the State of Michigan. The respondent employs six salesmen whose territories embrace the States of Illinois, Indiana, Iowa, Michigan, Minnesota, Ohio,, and Wisconsin. II. THE ORGANIZATION INVOLVED Local No. 409, International Molders Union of North America, is a labor organization, affiliated with the American Federation of 2 The quoted portion is contained in the testimony of James . Beattie, Jr ., secretary of the respondent . We infer that the period referred to is not more than one year. 'PREMIER FURNACE COMPANY 505 Labor, admitting to its membership all employees of the respondent, excluding clerical employees and those in a supervisory capacity. III. THE UNFAIR LABOR PRACTICES A. The alleged refusal to bargain collectively 1. The appropriate unit The parties stipulated at the hearing that the production and hourly paid employees of the respondent, exclusive of office and cleri- cal employees and those in a supervisory capacity, constitute a unit appropriate for the purposes of collective bargaining. We see no reason to alter the unit agreed upon. We find that the production and hourly paid employees of the respondent, exclusive of office and clerical employees and those in a supervisory capacity, constitute a unit appropriate for the purposes of collective bargaining, and that such unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. The alleged refusal to bargain collectively The,complaint, as amended at the hearing, alleged that on May 16, 1937, and June 22, 1937, and on numerous dates thereafter down to the date of the complaint, the respondent refused to bargain col- lectively with the I. M. U. as the exclusive representative of the respondent's employees in the appropriate unit. In March 1937 the I. M. U. started organizing the respondent's employees.( On about May 11, 1937, the I. M. U. presented to the respondent a list of about 22 requested working conditions. The parties conferred regarding these requests on May 17, 20, and 21 and were, in substantial agreement as to all the requests, except as to a 6-cent per hour requested increase in wages for certain employees. The respondent was willing to grant only a 3-cent per hour increase. The I. M. U. contends that it also requested during these meetings a closed shop and exclusive bargaining rights, and further claims that it presented proof to the respondent of its majority status. The respondent denies these contentions. The Trial Examiner found that the testimony of I. M. U. witnesses as to the presentation to the respondent of proof of a majority was confused and indefinite, and we agree. We do not find it necessary to resolve this conflict in the evidence, however, since it appears that the I. M. U. did not stress any such demands and that the only substantial difference between the parties was the question of wages. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Demanding the 6-cent increase, the I. M. U. called a strike on May 21, and picketed the plant. After various meetings between the respondent and the I. M. U., the strike was ended on June 17, when the I. M. U. agreed to accept the 3-cent increase. On June 22 the plant was again in full operation. Thereafter the I. M. U. settled some minor grievances with the respondent. At the close of 1937 the respondent informed its em- ployees that it had on hand a "huge stock of merchandise" and called attention to the consequent possibility of decreased employ- ment. On February 1, 1938, the I. M. U. met with the respondent and requested its cooperation in securing members. The respondent refused to accede thereto, stating that it "at no time ever attempted to influence a man either for or against the union" and that it did not feel that it "could require union membership as a condition of employment". After again informing its employees of a prospective decrease in employment, the respondent, upon request of the I. M. U., installed a "share-the-work" program for the purpose of spreading the decreasing work among as many employees as possible. On April 18, 1938, because it was losing members through what it termed "intimidation," 3 the I. M. U. asked the respondent for a closed shop. The respondent refused this request, and the I. M. U. organizer threatened to call a strike. On the following day, the I. M. U. voted to go on strike and pickets were placed about the plant on April 20. On June 8, although the strike was still current, the respondent resumed operations. In July 1938 the respondent again refused the I. M. U.'s request for a closed shop. On December 28, 1938, the I. M. U. wrote to the respondent, requesting recognition as the sole bargaining agent of the respondent's employees. The respondent answered that it was "ready and willing to meet with a committee of our employees or their representative at any time." In these facts, we do not find a refusal to bargain collectively. The differences between the respondent and the I. M. U. appear to have been with respect to the wage increase, in 1937, and a closed shop, in 1938. On the evidence we do not find that the respondent at any time refused to bargain concerning these differences in good faith. Furthermore, at the time of the 1938 strike, the I. M. U. claimed to represent but about 23 of the 59 employees in the appro- priate unit. In December 1938 there were no I. M. U. members in the appropriate unit. Under these circumstances, the respondent was, under no obligation to bargain with the I. M. U. as the exclusive representative of the employees in the appropriate unit, whether with regard to a closed shop or otherwise. 8 There is no evidence to show that the loss of membership sustained by the I. M. U. resulted from any unfair labor practices of the respondent. PREMIER -FURNACE COMPANY 507 We find that the respondent has not refused to bargain collectively with the I. M. U. as the exclusive representative of its employees in an appropriate unit. We further find that the strike, which began on April 20, 1938, caused by the respondent's refusal to grant the I. M. U. a closed shop, was not the result of unfair labor practices on the part of the respondent. B. The alleged discrimination in regard to hire and tenure of employment The complaint, as amended at the hearing, alleged that when the respondent resumed operations in its plant on or about June 8, 1938, it refused to employ or to reinstate 24 named individuals. When the plant was reopened on' June 8, 1938, 35 employees re- turned to work. No I. M. U. members returned, however, although fifteen of them received letters from the respondent asking them to return. Eight I. M. U. members received lay-off letters.4 ' The lay-off was in accordance with seniority. On December 5, 1938, the respondent wrote to the eight laid-off employees requesting them to file applications for consideration in the event of possible reemployment. None of them did so. There- after, the respondent indicated its willingness to place the strikers on a preferential list, but the I. M. U. refused to agree thereto and wanted some of the strikers reemployed. The respondent did not hire any new employees from June 8, 1938, to January 1939. It there- after hired three new employees. In February or March 1939, two I. M. U. members orally asked the respondent for reinstatement but did not file written applications when told to do so. The strike was still current at the time of the hearing. We find that the respondent has not discouraged membership in the I. M. U. by discriminating in regard to hire or tenure of employment, within the meaning of Section 8 (3) of the Act. C. Interference, restraint, and coercion An I. M. U. member testified that a field engineer of the respondent spied on an I. M. U. meeting in May 1937 and was "taking notes." The field engineer denied this. We find it unnecessary to resolve this conflict in the evidence since, even assuming the testimony of the I. M. U. member to be correct, the evidence is insufficient to bind the respondent by the field engineer's acts. Between the first strike and the time of the hearing, some pamphlets containing anti-union statements were sent to the employees by C. W. ' A twenty-fourth I. M. U. member, who worked nights as a shaker assisting a molder and whose name did not appear on the respondent's pay roll , did not receive a letter. 508 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD Howard Co., Inc., of St. Paul, Minnesota. No evidence was intro- duced to connect the respondent with the sending of these pamphlets, however. An I. M. U. member claimed that he had been discriminated against in that another, employee allegedly received more work than he. Another I. M. U. member claimed that a non-member had received a discriminatory increase in pay. Both these contentions were conclu- sively controverted. The Trial Examiner found that by the above-described activities, the respondent did not interfere with, restrain, or coerce its employees in the exercise of rights guaranteed by Section 7 of the Act. We agree with this finding of the Trial Examiner. In the early part of May 1937, Richard Malloy,5 a general foreman, asked Fred Reinshuttle, an employee, whether he was a member of the I. M. U. After receiving a negative answer, Malloy stated that the I. M. U. "would never organize his department". In July 1937 Malloy entered into a conversation with Reinshuttle, then an I. M. U. mem- ber, and stated that "he did not seem to feel that they [I. M. U. members] should be very satisfied after spending a month out on the picket line to come back in there to work for three cents an hour raise. He figured it would break the morale of our outfit and he asked how many men were going to stay with us after that." Malloy further stated that "he didn't have any use for union and never would have, and he went on and told about some place that he lost a job by joining the union and he said that if I kept at it I would find out just how good they really were . . ." The Trial Examiner found that this was a violation of Section 8 (1) of the Act. The respondent did not except to this finding. We find that, by the foregoing remarks of Malloy, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, C, above, occurring in connection with the, operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY . Having found that the respondent has engaged in certain anfair labor practices, we shall order it to cease and desist therefrom. How= A1so 'known'as Mealoy. PREMIER, FURNACE COMPANY 509 ever, since the. respondent has posted the notice recommended by the Trial Examiner stating that it will cease and desist from engaging in unfair labor practices within the meaning of Section 8 (1) of the Act, we shall not require it again to post notices in regard to -these practices e . We have found that the respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) and (5) of the Act. We shall, therefore, dismiss the allegations of the complaint in this respect. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Local No. 409, International Molders Union of North America, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by 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. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) and (5) 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 hereby orders that Premier Furnace Company, Dowagiac, Michigan, and its officers, agents, suc- cessors, and assigns shall: Cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of the right to self -organiza- tion, to form, join, or assist labor organizations, to bargain collec- tively 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 in Section 7 of the National Labor Relations Act. AND rr Is FURTHER ORDERED that the complaint, in so far as it alleges that the respondent has engaged in unfair labor practices within the e See Matter of Ohio Greyhound Lines, Inc. and Amalgamated Association of Street, Elec- tric Railway and Motor Coach Employees of America and Division 1207 thereof (A. F. of L. Affiliate), 21 N L. R. B. 751. -510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning of Section 8 (3) and (5) of the National Labor Relations Act, be, and it hereby is, dismissed. MR. WILLIAM M. LEISERSON, dissenting : The Trial Examiner in his Intermediate Report recommended that the respondent cease and desist from engaging in.unfair labor practices within the meaning of Section 8 (1) of the Act and that the allegations of the complaint that the respondent had engaged in unfair labor practices within the meaning of Section 8 (3) and (5) of the Act be dismissed. We find no merit in the exceptions filed by the I. M. U. to the Intermediate Report. The respondent has com- plied with the Trial Examiner's recommendations. Under these circumstances, I think that we should merely dismiss the exceptions and close the case pursuant to the provision in our Rules and Regu- lations that we "may close the case upon compliance with the recom- mendations of the Intermediate Report." 7 Where, as in this case, an employer has complied with the Trial Examiner's cease and desist recommendation and the Board is not ordering him to do any more than that, I think it is bad policy to issue another cease and desist order thereafter. 7 Article II, Section 35, National Labor Relations Board Rules and Regulations-Series as amended.