Columbian Iron Works, Inc.

In the Matter Of COLUMBIAN IRON WORKS, INC. and INTERNATIONAL. MOLDERS UNION OF NORTH AMERICA, LOCAL No. 53 Case No. C-1J,59.Decided June 21,- 19410 Fire hydrants , gate valves and water works products manufacturing-Inter- ference, Restraint, and Coercion : . anti-union statements by supervisory em- ployees ; discouraging membership in union ; threat to close and move plant;: threat to discharge for union activity-Discrimination : charges of, dismissed. Mr.. Alexander E. Wilson, Jr. and Mr. Arthur C. O'Connor, for the Board. Mr. Herbert. G. B. King, of Chattanooga, Tenn:, for the I. M. U. Mr. T. Pope Shepherd and Mr. Robert-H. Caldwell, of Chattanooga, Tenn., for the respondent. Mr. Richard A. Williams, of counsel to the Board-. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Molders' Union of North America, Local No. 53, herein called the I. Al. U., the National Labor Relations Board, herein called the Board, by Charles N. Feidelson, Regional Director for the Tenth Region (Atlanta, Georgia), issued a complaint, dated March 27, 1939, alleging that Columbian Iron Works, Inc., Chattanooga, Tennessee, herein called 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 Rela- tions Act, 49 Stat. 449, herein called the Act. A copy of the complaint, accompanied by notice of hearing, was duly served upon the respondent and the I. M. U. The complaint alleged, in substance, that since on or about January 1, 1936, the respondent urged, persuaded, and warned its employees to refrain from becoming or remaining members of the I. M. U. and threatened them with discharge and other reprisals unless they did so refrain; that on or about June 1, 1937, the respondent instituted and 24 N. L. R. B., No.93.. • 883 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD continued a system of individual contracts with its employees covering their wages, hours, and conditions of employment ; that the respondent discriminated with regard to the hire and tenure of employment of four named employees by discharging and refusing to reinstate them because they joined and assisted the I. M. T. a pd engaged in other .con- certed activities for their mutual aid and protection ; and that by these and by other acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act., On April 6, 1939, the respondent filed an answer denying the allegations relative to the unfair labor practices in the complaint and making certain allegations by way of an affirmative defense thereto.' Pursuant to notice, a hearing was held in Chattanooga , Tennessee, on April "6,. 7, and 8, 1939 , inclusive, before Albert Lohm, the Trial Examiner duly designated by the Board. The Board, the respondent, and the I. M. U. 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 .. During the course of the hearing, the Trial Examiner made rulings on various motions and objections to the admission of evidence . The Board has.reviewed the Trial Examiner 's rulings and finds that no prejudicial errors were com- mitted. . The rulings are hereby affirmed. On January 8, 1940, the Trial Examiner filed an Intermediate Re- port, copies of which were duly served upon all parties, finding that the respondent had engaged in certain unfair labor practices, within the meaning of Section 8 (1) and Section 2 (6) and (7) of the Act. He further found that the allegations in the complaint of discrimina- tion by the respondent against the four named employees, within the meaning of Section' 8 (3) of the Act, were not substantiated by the evidence. He recommended that the respondent cease and desist from its unfair labor practices and that the allegations of the com- plaint in respect to discrimination of the "respondent against the four named employees be dismissed. Thereafter the respondent and the I. M. U. filed exceptions to the Intermediate Report. On February 27, .1940, pursuant to notice served on the parties, a hearing for the purpose of oral argument was held. The respondent was represented by counsel and participated in the hearing. The Board has considered the exceptions of the respondent and of the I. M. U. and, in so far as they are inconsistent with the findings, con- clusions, and order set forth below, finds them to be without merit. Counsel for the respondent and'counsel for the I. M. U. filed briefs for the consideration of the Board. On March 29, 1939, the Regional Director granted the respondent an extension of. time until April 6, 1939, in which to file an answer. COLUMBIAN IRON WORKS, INC. 885 Upon. the entire record in the case,'the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Columbian Iron Works, Inc., a Tennessee corporation with its prin- cipal office and place' of business in Chattanooga, Tennessee, is en- gaged in the production of fire hydrants, gate valves, and "water Works products." It is a wholly owned subsidiary of Mueller Com- pany Ltd., of Decatur, Illinois, which operates - plants in Illinois, California, and Canada., The raw materials used by the respondent in its operations include pig iron, scrap iron, scrap steel, red brass, and manganese bronze, a large portion of which is shipped to the respond- ent's plant from sources outside the State of Tennessee. The products sold by the respondent annually amount to 5,173,414 pounds in vol- ume and to $510,627 in value. More than 97 per cent of these products are sold and shipped to points outside the State of Tennessee. The respondent makes these sales through Mueller Company, Ltd. It admits in its answer that it is engaged in commerce within the mean- ing of the Act. There are about 160 persons employed at the respondent's plant. II. THE ORGANIZATION INVOLVED International Molders' Union of North America, Local No. 53, is a labor. organization affiliated with the American Federation of. Labor, admitting to its membership workers engaged in the production . of castings, including employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Background Prior to 1933 the respondent operated under a closed-shop agree- ment with the I. M. U. About December 15, 1933, following the purchase of the respondent's plant by the Mueller interests, Adolph Mueller, president of both the respondent and of the Mueller inter- ests, addressed a meeting of the respondent's employees and informed them that the closed-shop policy was being abandoned in favor of an open shop.' 2 Thereafter the respondent reconditioned its plant and installed some $400,000 worth of "labor saving" -machinery. Many employees were displaced at this time by colored workers who were not I . M. U. members . As a consequence of this reorganization the respondent became involved in a proceeding before the old National Labor Relations Board, and on November 8, 1934, the old Board issued a decision ordering the respondent to bargain collectively with the I. M. U. but holding that the evidence did not warrant a finding that the respondent had discriminated against I . M. U. members by displacing them with "labor saving" devices . Matter of Columbian Iron Works Company and International Molders' Un4on of North America, Local No. 53, 1 N. L. R. B. (old) 152. 283035-42-vol. 24-57 '886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 1, 1935, the I. M. U. asked the respondent to sign a con- tract covering its foundry workers including those in the core room. At this time, the respondent explained that it "didn't think a con- tract was necessary" and asked that the new policy of "open shop" be given a "chance." The I. M. U. acquiesced in this. B. Interference, restraint, and. coercion As we noted above, the I. M. U. had some organization in the respondent's plant at the time the Act became effective, although the extent of this organization is not clear from the record. Thereafter, according to substantially undisputed evidence, the respondent's supervisory and executive officials made numerous anti-union -state- ments on various occasions designed to discourage membership in and activity on behalf of the I., M. U.3 In September 1936, Joseph Guffey, one of the respondent's employees, who had been temporarily sus- pended from the I. M. U., had a conversation with Plant Manager Paul G. Jacka, in the latter's office,4 which in substance was as..follows: Jacka asked Guffey how he happened to be "suspended from the organization J. M. U.)." Guffey explained that he was suspended for non-payment of dues. To Jacka's question "Do you have any intention of reinstatement?" Guffey replied affirmatively. Jacka then asked "What way do you think it is going to benefit -you to belong to any labor organization?" and he added that, before the respondent would permit a "bunch of men around here" to' dictate to it, it would "close the doors down" and move the plant. During this same conversation Jacka also emphasized the fact that the, respondent's policy was and would continue to be one of "open shop." Thereafter Jacka said to Guffey, in another conversation, "You said you were not . a member-of the organization J. M. U.)." Guffey replied, "I told you I had been. a member of the organization but I was not at the time you were talking to me. I said I was a reinstate- ment (sic).", Jacka then stated "It has come to me pretty straight you were trying to stir up trouble . . . and you are still at it." , Later Guffey had a third conversation with Jacka, who warned, "Guffey, you better watch your step down there. The trouble is still going on. If you want to hold your job you better watch your step." About the same time the I. M. U. was carrying on a new organizational drive in the respondent's plant. Guffey and three other employees, Robert E. Dooley, Maurice Lee, and Arthur E. Hancock, took a-leading part in these organizational activities, which reached a peak in' June of. 3In this connection we note that the respondent made no effort to'disavow'the statements of its supervisory and executive officials. ' Guffey' s presence in Jacka's office originally resulted from another matter with which we .are not here concerned. I COLUMBIAN IRON. WORKS, INC. 887 1937. We find that. Jacka's remarks relative to the "trouble" for which Guffey allegedly was responsible, had reference to Guffey's I. M. U. activity. The threat of discharge contained in Jacka's re- mark to Guffey "If. you want to hold your job you better watch your step" is clear. About January 1, 1937, Plant Manager Jacka approached Hancock and stated; "I don't know whether you belong to the union (I. M. U.) or not" but "when you fellows down there get to where you can tell us how to run this shop we will close her down and move her ..." Some • time later, Assistant Foreman Howard Morton approached Dooley, and informed him that there was "too much talk" of the I. M. U. "going around the shop" and that if it did-not "quiet down" there • would be "steps taken by the management." About the same time Oscar Black, one of the respondent's employees, who had joined the I. M.. U. the previous evening at Guffey's solicitation, was ap- proached by Foreman Donald Andrews, who stated, "I heard you went up and joined the union last night;" and continued, "Well, that is all right;; you have just as much, right to join the union as anybody else. I, am not going to fire you for joining and I am not going to fire you for not joining, but what good is it going to do you?" The same day Plant Manager Jacka also inquired of Black, "Do you think you are going to get any good out of what you did last night?" Asked what he meant, Jacka replied, "`joining the union. I will tell you now you are not going to do any good. at it." Jacka then asked Black if he -vas "going up there (to the I. M. U. hall) again" and Black. replied- "No." In July of 1937, L. W. Mueller, the respondent's vice president, during a conference with an employee committee from the core room, informed the committee that he "understood that they were organiz- ing," that he did not object to the employees "belonging to an organi- zation" but that "if conditions developed in this plant" as had existed in another plant he would "close the plant down." Mueller made similar statements to various individual employees on other occasions. Under the circumstances of this case; it is clear that Mueller intended to warn the employees that he would shut down the plant if the 1. M. U. succeeded, in its organizational campaign and then proceeded to make any bargaining demands which did not meet with Mueller's approval. At the hearing Mueller admitted making the statements attributed to him and stated that he "meant just that too." He ex- plained that he so addressed himself to his employees in a "spirit of advising." It is clear, however, that his remarks were intended to have, and did have,.the effect of discouraging I. M. U. activities by the. employees. . Although the record establishes that Mueller, Jacka, Andrews, and Martin' are supervisory, employees, the respondent disclaims responsi- 888 DECISIONS Or" NATIONAL LABOR RELATIONS BOARD bility for their above-mentioned statements on the ground that such statements were made in violation of its rules. It is clear, however, that the foregoing activities of its supervisory officials'are attributable to the respondent under the Act.' We find that the respondent by questioning its employees relative to their I. M. U. activity, by disparaging the I. M. U., by threatening its employees with discharge, by threatening to close down or move its plant unless they refrained from activity on behalf of the I. M. U., and by stressing to its employees the fact that it was maintaining an "open shop" interfered with, restrained, and coerced its employees in: the exercise of the rights. guaranteed in Section 7 of the Act. The complaint alleges that the respondent, on or about June. 1, 1937; instituted and continued a system of individual contracts with its employees in violation of the Act. The record shows that following some conferences with certain of its employees relative to their wages, the respondent installed a system of cards in its plant. On the face of these cards was provision for the employee's name, his wage rate, and the date on which he was entitled to a wage, increase. On the other side of the card, above space for a- signature, appeared the following wording : I, the undersigned, understand that my wages will be in ac- cordance with the schedule of wage rates shown on the face of this card, for the, time that this schedule is in effect and that my wage increases-will be based upon actual hours worked.. The duration of the schedule was indefinite and the testimony relative to the nature of the understanding embodied in these cards was conflicting. Only part of the respondent's employees, including -Guf- fey, Dooley, and Hancock, were asked to sign one of these cards, and the system was not installed in any of the respondent's other plants. The respondent denies that these cards were intended to be contracts and ' contends that. they were simply "company records, showing the date- of employment and base wage of an employee, and a statement of dates upon which the employees would receive a ,scheduled advance in wages." In addition, it does not appear that these cards in. any way were intended to, or did, constitute a bar to future bargaining negotiations between the respondent and its employees or the I. M.. U. In view of all the circumstances surrounding this incident we do not believe the evidence sustains the allegation in the complaint that the respondent instituted a system of individual contracts with its em- ployees, in violation of the Act. The respondent also lays considerable stress upon the fact that it had repeatedly informed its employees that they were free to join any organization they wished with impunity . Such assurances, however, become meaningless when accompanied , as here, by threats to move the plant , warnings. to the employees to "watch your step" if they wished to hold their jobs , and other forms of intimidation and coercion. COLUMBIAN IRON. WORKS, INC. 889 O. The allleged discriminatory discharges The complaint alleges that the respondent discharged and refused to reinstate Joseph Guffey, Robert E. Dooley, Maurice Lee, and Arthur E. Hancock. The respondent, in its answer, denied dis- criminating against the men named in. the complaint and averred affirmatively that, they were "laid off" because of a business recession and that they were not reemployed because of the installation of labor-saving machinery which could be operated by unskilled labor. Guftey, Dooley. Lee, and Hancock were employed on August 28, 1934, January 23, 1935, August 28. 1934, and August 23, 1934,respec- tively, in the respondent's core room at 32 cents an hour. When their employment by the respondent ceased they were earning 621/2 cents, 571/z cents: 75 cents, and 65 cents an hour, respectively. Guffey and Dooley were laid off on October 25, 1937, and Lee and Hancock were laid off on February 15, 1938. By virtue of the respondent's rules, these employees were no longer considered employees after a 3- month lay, -off. All four men were active I. M. U. members and took a leading part in the I. M. U. drive from January to June 1937. As noted above Guffey, Dooley, and Hancock were among "those em- ployees subjected to repeated threats and warnings by the respondent because of their activity on behalf of the I. M. U. There is no con- tention by the respondent that the work of the four employees was unsatisfactory. , In June of 1937 the respondent encountered a business recession and in July five employees over whom the four employees here in- volved had seniority, were transferred from the core room to mainte- nance work. On September 15 one of the five employees was laid off and by December 26 all of these five -employees had been laid off. Thus by February 15, 1938, the employment .of nine persons in the core room, including the four here involved, was terminated. ' There- after, four skilled employees, all of whom had seniority over the'nine employees laid off, remained in the core room. Subsequently the four employees here involved requested reinstatement on several occasions. This request was refused on the ground that the respondent had installed labor-saving machinery which was operated by unskilled labor. It appears that the respondent commenced purchasing the labor- -saying machinery in question in January 1937, when it acquired a small core-making machine. In late 1937 it acquired a large core- making machine and thereafter three small machines. By July 1938 all five of these machines were being operated by seven unskilled employees hired at various times after May 23, 1938. The new men were paid 30 cents an hour. On several occasions Guffey, Dooley, 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lee, and Hancock requested employment as machine operators at the 30-cent wage, but the respondent refused this request allegedly on the ground that it did not think the four employees would be satisfied to work at reduced pay. In his Intermediate Report, the Trial Examiner found that there had been no discrimination against Guffey, Lee, Dooley, and Hancock. In view of the fact that the- lay-offs of `these men were substantially in accordance with their senior- ity, we agree with the Trial Examiner's conclusion that there was no discrimination in their lay-offs. There remains, however, the question of whether the refusal to reinstate Guffey, Dooley, Hancock, and Lee at the 30-cent -hourly wage, was discriminatory. As already noted the respondent bases its refusal to reemploy the four employees on its belief that they would not be satisfied to work at the reduced pay. Although the four- em- ployees testified that they were-willing to work at the reduced-wages, the important issue here is. whether or not the respondent honestly believed that their dissatisfaction' with the lower wage would render them less desirable' than new employees. In view of the respondent's clear hostility to the union activity carried on by the four men, there is considerable doubt on the latter point. Since there is no other clear evidence tending to impugn the respondent's motives, however, the weight of the evidence supports the conclusion that the respond- eiit denied reinstatement to the four men because of its belief that they would be dissatisfied with the 30 cents an hour wage. We find that the respondent in laying off and denying reinstate- ment to Guffey, Lee, Dooley, and Hancock did not discriminate against them in violation of Section 8 (3) of the Act. - . IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III '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 interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act, we shall order the respondent to cease and desist from such interference,, restraint, and coercion,. and to take certain affirmative action designed to effectuate the policies of the Act. COLUMBIAN IRON WORKS, INC. 891 Upon the basis of the foregoing findings of fact, .and upon the entire record in the case, the Board makes the following: CONOLUSIONS OF LAW 1. International Molders' Union of North America, Local No. 53, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. The respondent, by interfering with, restraining, and coercing its employees in.the exercise of the rights guaranteed, in Section 7 of the Act, 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) 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 the respondent, Columbian Iron Works, Inc., its officers , agents, suc- cessors, and assigns, shall: 1.` Cease and desist from in any manner interfering with, restrain- ing; or coercing 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 purposes of collective bargain- ing or other mutual aid and protection, as guaranteed in 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) Immediately post notices in conspicuous places at its Chatta= nooga, Tennessee, plant, and maintain them for a period of at least sixty (60) consecutive days, stating that the respondent will not engage in the conduct from which it is ordered to cease and desist as aforesaid, and (b) Notify the Regional Director for the Tenth 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 in so far as it alleges that the respondent has. engaged in unfair labor practices within the meaning of Section 8 (3) of the National Labor Relations Act be, and it hereby is, dismissed. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MR. EDWIN S . SMITH, dissenting: I am unable to agree with the conclusion of the majority that there was no unlawful discrimination against Guffev, Lee, Dooley, and Hancock. These four men were leaders in the I. M. U. organizational activity which reached a peak in June of 1937. It is abundantly clear that such union activity met with the respondent's disapproval and pro= vided a powerful motive for the respondent to discriminate against leading participants therein. Moreover , it appears that each of the four men here involved was, on one or more occasions , singled out by the respondent's supervisory officials and warned or advised against a continuance of union activity. Under these circumstances, the re- spondent's explanation for its subsequent denial of employment to these men must be subjected to close scrutiny. While it appears that a business recession was the true cause for the lay-offs of Guffey, Lee, Dooley, and- Hancock, the important question here is why the four men were denied reinstatement there- after. The labor -saving machinery subsequently installed by' the respondent to do work formerly done by the four employees was operated by unskilled laborers . Since the four men clearly could have operated the machines, it is noteworthy that the respondent failed.. to offer any * of them employment as machine operators , but hired ,new employees instead. Thereafter the respondent also denied specific requests of the employees for employment as machine oper- ators, allegedly on the ground that they tiyoi ld not be "satisfied" with such menial work at a lower wage. The respondent did not at any time offer to' try the employees out as machine operators to determine if they would be satisfactory in such positions . The four employees at all times have indicated their willingness to accept employment as machine operators. Under these circumstances, I am unable to find that the respondent honestly believed that the employees would not be satisfied with such work. In view of the prior clearly ex- pressed hostility of the respondent to the I. M. U., and the fact that the four,men each had been singled out by supervisory officials and advised against further I. M. U. activity , I am convinced that the respondent seized upon the installation of labor-saving machinery as an opportunity to rid itself of four leading union members.