General Iron Works Co.

In the Matter of GENERAL IRON WORKS Co. and COLORADO STATE INDUSTRIAL UNION COUNCIL Case No. C-1679.Decided November 29, 1940 Jurisdiction : machinery manufacturing industry. Unfair Labor Practices. Discrimination : charges of, dismissed. Practice and procedure : complaint dismissed. Mr. Paul S. Kucthau, for the Board. Lee, Doud ct Griffith, by Mr. Benjamin Griffith, of Denver, Colo., for the respondent. Mr. Frank N. Price, of Denver, Colo., for the Council. Mr. Raymond J. Compton, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by Colorado State Industrial Union Council, herein called the Council, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-second Region (Denver, Colorado), issued' its complaint dated July 8, 1940, against General Iron Works Co., Denver, Colo- rado, herein called the respondent, alleging that the respondent had engaged 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 and notice of hearing were duly served upon the respondent and the Council. With respect to the unfair labor practices, the complaint alleged, in substance, that the respondent (1) on or about April 22, 1940, discharged John Roe, and thereafter refused to reinstate him, be- cause he joined and assisted a labor organization and engaged in concerted activities with other employees for the purpose of col- lective bargaining and other mutual aid and protection; (2) since November 1, 1939, urged, persuaded, and warned its employees not 28 N. L. R. B., No. 39. 202 GENERAL IRON WORKS CO. 203 to join or, assist any nationally affiliated union or engage in con- certed activities with other employees for the purpose of collective bargaining or other mutual aid or protection; and (3) by the afore-mentioned and other acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On July 20, 1940, the respondent filed an an- swer admitting the allegations of the complaint as to the nature of its business, but denying that it had engaged in unfair labor prac- tices as alleged therein. Pursuant to notice, a hearing was held in Denver, Colorado, on August 1 and 2, 1940, before William P. Webb, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel, the Council by its secretary-treasurer, and all participated in the hearing. Full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing the Trial Examiner denied a motion for a bill of particulars previously filed by the respondent. At the close of the Board's case, counsel for- the Board' moved to amend the complaint to conform to the proof with respect to variances in names and minor formal errors. The motion was granted. The Board has reviewed the rulings of the Trial Examiner on other motions and on objections to the admission of evidence and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Trial Examiner thereafter filed his Intermediate Report, dated September 17, 1940, copies of which were duly served upon the parties. He found that the respondent had not engaged in the alleged unfair labor practices and recommended that the complaint be dismissed. On October 17, 1940, the Council filed exceptions to the Intermediate Report. The respondent thereafter filed a brief and requested per- mission to present oral argument before the Board. On November 14, 1940, pursuant to notice served upon all the parties, a hearing for the purpose of oral argument was held before the Board at Washing- ton, D. C. The respondent appeared by counsel but the Council did not appear. The Board has considered the exceptions to the Intermediate Report and, in so far as they 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 Colorado corporation with its principal office in Denver, Colorado. It operates a plant at Englewood, Colorado, 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where it is engaged in the manufacture, assembly, and sale,of heavy machinery. In 1939 it purchased raw materials consisting of iron, steel, tools, and equipment amounting in value to more than $400,000, of which approximately 50 per cent were shipped from points outside the State of Colorado. During the same year the respondent manu- factured and sold machinery and machine parts valued at more than - $1,000,000, of which approximately 50 per cent were shipped to States other than Colorado. The respondent at present employs approxi- mately 380 employees in the operation of its Englewood plant. II. THE ORGANIZATIONS INVOLVED Colorado State Industrial Union Council is a labor organization affiliated with the Congress of Industrial Organizations. It is a coun- cil consisting of representatives of all local unions affiliated with the Congress of Industrial Organizations in the State of Colorado. Steel Workers Organizing Committee, herein called the S. W. O. C., is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES John Roe was employed as a laborer by the respondent in July 1936 through the intercession of Thomas Stearns, then president of the respondent and owner of a ranch in Utah managed by Roe's father. Roe became a lathe operator in 1939 and continued to work in this capacity until his discharge on April 22, 1940. On November 28, 1939, Roe was laid off for 10 days by Ray Miller, departmental foreman, because he failed to keep his lathe clean, in violation of plant rules and despite repeated admonitions by Miller. Roe made no complaint about this lay-off and admitted at"the hearing that prior to the lay-off he had not kept his lathe "as clean as it should be." During the lay-off, and several times thereafter, Roe talked, to Frank N. Price, secretary-treasurer of the Council, regard- ing the formation of a local of the S. W. O. C., and in March 1940 obtained from Price a number of membership application blanks. No local of the S. W. O. C. was established, however, and so far as the record shows only Roe and Ellis Lord, a fellow employee, signed membership applications.' ' with regard to prior organizing activities of the respondent 's employees, it appears that in the latter part of 1937 there existed at'the plant an allegedly company -dominated union known as the Independent Workers Union of Colorado . About February 1939, how. ever, this union was dissolved pursuant to an agreement between the respondent and the Board whereby notices of disestablishment were posted by. the respondent throughout its plant. In May 1938 the International Moulders ' Union of North America, affiliated with the American Federation of Labor and the only other union then shown to be organized among the respondent's employees , was accorded recognition by the respondent as the exclusive bargaining representative of its foundry division employees. GENERAL IRON WORKS CO. 205 In March 1940 Gordon Stevens, a "planner" at the plant whose duties consisted of setting piece-work prices and routing orders to the proper divisions , attended a party at Roe's home. Roe testified that on this occasion Stevens told him that he would be "one of the best men in the plant if he only had sense enough to keep his mouth shut," that Roe was talking to someone at the plant who could not be trusted, and that he "had better keep still ." Stevens denied making the foregoing statements and testified that Roe asked him if he was not one of the best men in the plant , and that he replied that Roe would be all right if he could control his temper. The Trial Examiner credited Stevens' version of the above conversation. Ellis Lord, an employee heretofore mentioned, also testified that Jacob Johnson, a planner whose duties were similar to those of Stevens, told him on one occasion while at work that he would not attend the meeting of a social club organized by the employees be- cause of "other elements in there, some of these radical bastards like Roe." Johnson denied making the statement attributed to him by Lord and testified that when Lord asked him if he was going to the meeting he replied that he would like to go in order to get some of the beer and sandwiches but that he would be unable to do so. The Trial Examiner credited Johnson's testimony regarding the foregoing incident. We likewise credit the testimony of Stevens and Johnson, and find that they did not make the statements above attributed to them by Roe and Lord. The evidence shows that beginning in the fall of 1939 and con- tinuing to the date of his discharge , there was considerable complaint about Roe's work. Although Roe showed some improvement in his work during the month following his lay-off on November 28, 1939, he thereafter again became careless in the performance of his duties. Edward B. Gagan, C. A. Anderson , and Oscar Gantzler, inspectors in the plant, testified, that in the fall of 1939 and in the spring of 1940 Roe caused them considerable trouble in that about 15 per cent of his work was rough and failed 'to meet inspection requirements . Malcolm Hart, who worked on the same lathe as Roe, also testified that when he came to work on the night shift he often found that Roe had failed to clean the machine , before going off duty. During the period between September 1939, and the date of Roe's discharge , Miller made numerous complaints con- cerning Roe to M. R. Nelson, general plant superintendent. Nelson, however, instructed Miller not to discharge Roe unless all other efforts failed to bring about an improvement in his work. On April 22, 1940, Gagan , one of the inspectors mentioned above, showed Miller a rake hanger which Roe had drilled but had not bored as was required on work of that kind . Miller took the hanger 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Roe and asked him if he could not do better work. According to Miller, Roe replied , "I am only getting paid, to drill the God damned things." Miller told Roe that he had done everything pos- sible to induce him to improve his work and to keep his equipment clean and that it had not been a week since he had found Roe's lathe dirty. Miller further testified that Roe retorted , "You are a God damn liar," and that he then discharged Roe for insubordination. Miller further testified that he would not have discharged Roe if he had not called him a. "God damn liar" but that he probably would have transferred him to other work . According to Roe's version of the incident, when Miller accused him of not cleaning his machine he replied, "Well, you know a god damn sight better than that, Miller," whereupon Miller told him, "Well , I don't have to take that off of you, Roe, come and get your clearance slip." Roe admitted that he told Miller on this occasion that he was not getting enough pay both to drill and bore the rake hangers. Four days after his dismissal Roe informed Stearns that he had been discharged. Stearns thereupon called Nelson, the plant super- intendent, on the telephone to ascertain the cause of Roe's discharge.2 Nelson told Stearns that when reprimanded for doing his work im- properly. Roe had called his foreman a "damned liar " and conse- quently was discharged for insubordination. Roe came into Stearns' office while he was talking to Nelson on the telephone. When Stearns had finished talking to Nelson, he asked Roe for his version of the incident. During the conversation which followed , Roe stated that he intended to file charges with the Board . At this point Stearns became angry and censured Roe for contemplating such action in view of the special effort he had made in securing Roe's initial em- ployment with the respondent. It is unnecessary here to set forth in detail 'the statements made by Stearns on this occasion inasmuch as we find, as did the Trial Examiner, that the conversation between Stearns and Roe was in reference to their personal relationship and that in making the statements Stearns was neither acting for nor reflecting the attitude of the respondent. The day following his interview with Stearns , Roe returned to the plant and talked to Nelson. Nelson called in Miller and Roe asked him if there was any possibility of reinstatement . Miller replied in the negative , stating that his work was "sloppy," that he had failed to keep his machine clean, and that he had the wrong attitude toward his work. Roe did not mention to Nelson and Miller that he had talked to Stearns the day before, and he left the office ' The evidence shows that Stearns, who is 81 -years of age, had relinquished his office as president to become vice president of the respondent 2 years prior to the bearing, and for the past several years had taken no active part in the operation of the respondent's plant. GENERAL IRON WORKS CO. 207 after telling Miller that he did not think there was any cause for hard feelings between them because of his discharge. In view of the foregoing, we find that the respondent has not dis- criminated in regard to the hire and tenure of employment of John Roe, thereby encouraging or discouraging membership in a labor organization, and has not interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 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. The operations of the respondent occur in commerce, within the meaning of Section 2 (6) of the Act. 2. Colorado State Industrial Union Council and Steel Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, are labor organizations, within the meaning of Section 2 (5) of the Act. 3. 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. 4. The respondent has not discriminated against John Roe in re- gard to hire or tenure of employment or terms or conditions of employment, within the meaning of Section 8 (3) 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 respondent, General Iron Works Co., Denver, Colorado, be, and it hereby is, dismissed. CHAIRMAN HARRY A . MILLIs took no part in the consideration of the above Decision and Order.