Precision Castings Co., Inc.

In the Matter of PRECISION CASTINGS COMPANY, INC. and NATIONAL ASSOCIATION OF DIE CASTING -WORKERS, REGION No. 5, _ AFFILIATED WITH C. .LO Case No.--C-1857.-Decided December 19, 1941 Jurisdiction : die castings manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion : charges of, dismissed without prejudice. Discrimination : charges of, dismissed without prejudice. Practice and Procedure : complaint dismissed without prejudice. A submitted controversy will not be decided on the basis of an agreed statement of which substantial parts state merely evidentiary facts and present only, questions of ultimate fact as to which conflicting inferences are possible. Mr. Thurlow Smoot, for the Board. Stanley f Smoyer, by Mr. Harry E. Srao yer and Mr. Eugene B. Schwartz, of Cleveland, Ohio, for the respondent. Mr. Alex Balint, of Cleveland, Ohio, for the Union. Mr. Louis Newman, of Counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon an amended charge duly filed by National Association of Die Casting Workers, Region No. 5, affiliated with C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint dated November 20, 1940, against Pre- cision Castings Company, Inc., Cleveland, Ohio,' herein called the respondent, 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. 1 The plant involved in this proceeding is in Lakewood, Ohio, but is generally known as the Cleveland plant. 37 N. L. R. B., No. 123. 774 PRECISION. CASTINGS COMPANY.,' INC. 775 Copies of the complaint and"of notice of hearing thereon were duly served,on the respondent and the Union. . With respect to the unfair labor practices, the complaint alleged in ;substance that on or about July 15, 1940,2 the respondent refused to reinstate and that it has ever since refused to reinstate, 35 named employees 3 td their 'former or substantially equivalent positions with- out prejudice, to .their seniority and other rights and privileges, be- cause they were leaders and members of the Union and were active in its behalf and.because they had engaged in other concerted activi- ties for the purpose of collective'bargaining. On December 23, 1940, the respondent filed its answer to the complaint, in which it admitted being engaged in commerce within the meaning of the Act, but denied the alleged unfair labor practices. Pursuant to notice, a hearing was held at Cleveland, Ohio, on Jan- uary 2, 3, 6, and 7, 1941, before Howard Myers, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by one ofits officers, and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues was afforded all parties. During the hear- ing, as pointed out above, a motion by counsel for the Board to dismiss the complaint as to employee Lillian Dotson was granted by the Trial Examiner without objection. Rulings on other motions and on the admissibility' of evidence were also made by the Trial Examiner dur- ing the,course of the.hearing. The Board.has reviewed all the rulings of the Trial Examiner and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. At the close of the hearing the parties were given, but did not avail themselves of, an opportunity to argue orally before the Trial Examiner and to file briefs with him. On January 7, 1941, during the hearing, an "Agreed Statement of Facts," dated the previous day and signed by counsel for the Board and for the respondent, was received in evidence together with a series of attached appendices or exhibits. The record consists of this` agreed statement, the pleadings and other formal documents herein, a stipu- lation as to the business,of the respondent,`copies of certain formal- doc-uments and of the Board's decisions in two prior proceedings involving the same respondent, and testimony as to whether some of the employ- ees involved had, subsequent to June 25, 1940, obtained substantially equivalent employment elsewhere. 2 A strike called by the Union on June 24, 1940, was terminated on July 14, 1940. Ap- plications for reinstatement were filed on and after July 15, 1940, by the complaining witnesses and other employees of the respondent who did not work during the strike 3 During the hearing, counsel for the Board moved that the complaint be dismissed as to Lillian Dotson , one of the 35 named employees The motion was granted by the Trial Examiner without objection. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 10, 1941, counsel for the Board in this proceeding and in Case No. C-1658, involving the same respondent, moved to con- solidate the cases. By order dated January 21, 1941, the motion was denied by the Board after consideration of briefs submitted by the respondent and by counsel for the Board.4 On January 25, 1941, pursuant to a stipulation previously entered into by counsel for the Board and for the respondent, the Trial Exam-. iner-issued=a norder-directing that certain corrections be made in the - transcript of the testimony taken during the hearing. Thereafter, the Trial Examiner issued his Intermediate Report dated April 9,1941, copies of which were duly served on .the respondent and the Union. The Trial Examiner 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, and recommended that the respondent cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. On May 19 and May 28, 1941, respectively, the respondent filed with the Board its exceptions to the Intermediate Report and a brief in support of its exceptions. Thereafter, pursuant to notice duly served on the parties, a hearing was held before the Board in Washington, D. C., on June 26, 1941, for the purpose of oral argument. The respondent was represented by counsel and par- ticipated in the hearing; the Union did not appear. The Board has considered the exceptions and the brief submitted by the respondent, but deems it unnecessary to pass upon the merits of the exceptions in view of the disposition hereinafter made of the proceeding. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. TIIE BUSINESS OF THE RESPONDENT Precision Castings Company, Inc., is a New York corporation hav- ing its principal office and place of business at Syracuse, New York, and manufacturing plants at Syracuse and Fayetteville, New York, and Lakewood, Ohio. It is engaged in the manufacture of die cast- ings for the automotive and utensil industries. The present proceed- ing involves only the plant at Lakewood, Ohio, which is known as the Cleveland plant. Sales during the year 1939 of products manufactured at the Cleve- land plant totalled approximately $850,000, of which approximately 4 Case No C-1658 has since been separately decided Matter of Precision Castings Company, Inc' and National Association of Dee Casting Workers, Local No. 5, afJilsated with C 1 0 , 30 N L R B., No 30 (March 10 , 1941). PRECISION CASTINGS COMPANY, INC. 777 $250,000 represented products sold and shipped to purchasers outside the State of Ohio. During the same period the respondent in its Cleveland plant used raw materials valued at approximately $340,000.' Substantially all of these raw materials were obtained by the respond- ent from points outside the State of Ohio. The respondent admits that it is engaged in commerce , within the meaning of the Act. II. THE ORGANIZATION INVOLVED National Association of Die Casting Workers, Region No. 5, is a labor organization affiliated with the Congress of Industrial Organiza- tions. It admits to membership employees of the respondent at its Cleveland plant. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The agreed facts Following, is a-summary of th'e"fa'cts which hiibe been , agreed upon as stating the controversy to be decided : On June 24, 1940, the Union called a strike in the respondent's Cleveland plant. The strike was a consequence of a current labor dispute, but was not caused by any unfair labor practices on the part of the respondent. On Sunday, July 14, 1940, the strike was terminated by the Union. Twenty employees who did not work dur- ing the strike, but who indicated to the respondent during the week ending July 13, 1940, that they wished to return to work, were rein- stated and worked during the week , of July 15-20, 1940, without being required to fill out applications for reinstatement . The re- spondent required all -other employees who did not work during the strike to fill out and submit applications for reinstatement. Such applications were filed by 88 employees on and after July 15, 1940. Among- these 88 - applicants were the 34 employees involved in the present proceeding, all but one of whom filed their applications on July 15, 16, or 17, 1940. Each applicant for reinstatement was given a notice which stated, in effect, that : (1) 'applications for reinstate- ment would be accepted from and required of all persons not rein- stated prior to July 1'4, 1940; ( 2) employees who had not worked during the period of the strike because they were ill, on vacation, or absent with leave, or because of intimidation would retain their seniority status and would be reinstated in order of seniority as work became available; (3) employees who had not worked during the period of the strike , but not because they were ill, on vacation, or absent with leave, or because of intimidation, would be reinstated as work became available , but with new seniority starting - from the 778 DECISIONS 'OF NATIONAL 'LABOR) RELATIONS BOARD dates of their return to work; and -(4) employees who had "engaged in 'acts of violence" during the period of the strike or who had, "wilfully attempted to prevent the operation" of the respondent's plant during the period of the strike otherwise than by "merely ab- senting themselves from work without leave" would not be -reinstated immediately, but their applications would be "accepted and con- sidered for future action." In accordance with this notice, the ap- plications of all employees who stated that they had been absent from work during the period of the strike with leave, or absence of in- timidation, or because they were ill or on vacation were at once con- sidered by the respondent, and all these applicants were reinstated as fast as jobs became available. Reinstatement of all but 4 or 5 of these applicants was accomplished within approximately a month after the termination of the strike. Of the 34 employees involved in this proceeding, 31 indicated on their applications for reinstatement that they had been absent from work during the period of the strike because they had been "on strike," and 3 indicated on their applications that they had been absent from work during the:period of the strike "without leave and not because of intimidation." The applications of these 34 employees were "set aside for future consideration by Respondent, it being Re- spondent's opinion that said persons (the complainants herein) vio- lated the contract . . . and the seniority rules therein contained." These seniority rules had been established in a contract between the respondent and Precision Employees Association made in November 1939 and in ` effect during the period herein question. The rules thus established provided, in part, that an employee would lose his seniority if he remained away from work for three day or longer, "without justifiable cause and without notifying the Employer of his intended absence." The respondent did not reach a decision as to the applications of the 34 employees involved in this proceeding until on or about Au- gust 14, 1940, and it is stipulated that "the intervening time between July 15, 1940 and August 14, 1940 was consumed by Respondent by, the handling of other matters necessary to the operation of its Cleve- land plant, after a partial interruption in operations . . ." On August 13 or 14, 1940, the applications of these 34 employees were considered by the respondent together with certain information and charges as to the conduct of some of these employees during the period of the strike. .The information and accusations which the G On March 10, 1941, in Case No C-1658 to which reference has been made above, the Board found Precision Employees Association to be a company-dominated labor organiza- tion and ordered the respondent to disestablish it and to cease giving effect to the con- tract between the respondent and the Association , "without prejudice to the assertion by the employees of any legal rights they may have acquired under such contract." - PRECISION -CAS'`INGS COMPANY, INC. 779',, respondent had received were to the effect that certain of these em-; ployees had engaged in various acts of violence; that 11 of them had, been convicted ,on July 13, 1940, of contempt of a restraining order entered upon the respondent's application by a Justice of the Court. of Common Pleas of Cuyahoga County, State of Ohio, on July 1,• 1940, during the strike; and that warrants of arrest had been issued in criminal proceedings against 4 of these employees arising out of conduct allegedly engaged in by them during the strike. The re- spondent's plant manager, "acting upon" this information and these, charges, decided and announced that 19 of the 34 employees would, be reinstated as soon as jobs became available and that the applica tions of the remaining 15 would be held for further consideration. Of the 19 employees whom the plant manager thus decided to re- instate, 13 were actually reinstated during August 1940 and one was reinstated on September 10, 1940. All of these 14 employees were reinstated with new seniority starting from their respective `dates of reinstatement. The foremen of the 5 other employees whom the plant manager decided to reinstate, when informed of the decision to reinstate them, objected to their reinstatement on the ground that, they had so conducted themselves towards other employees in their; work prior to the strike that they could not work peacefully with. the other employees of the respondent if they were reinstated. The respondent's plant manager "thereupon decided to withhold reinstate- ment" of these 5 employees. Neither these 5 employees, nor the 15' employees whose applications the plant manager on August 13 or 14, 1940, set aside for future consideration, had been reinstated by the respondent at, the time of the hearing herein. Decision as to the' reinstatement of all 20 of these employees is "still being withheld." In deciding to reinstate certain of the employees involved in this proceeding and to withhold for future consideration the applications, of the others, the respondent "did not give consideration to whether or not said applicant was a member of or a leader in or active in behalf of the Union in Respondent's plant, when employed there. Respondent having reason to believe that each and all of said appli-- cants (who are complainants herein) were members of or leaders in or active in behalf of the Union in Respondent's plant, when 'em-- ployed there." B. Conclusions The agreed statement presents major problems with respect to: (1) the reinstatement procedure adopted by the respondent subse- quent to the strike; (2) the five employees whom the respondent first decided to reinstate but whose reinstatement was withheld following objections by their foremen; and (3) the 15 employees whom the 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent has never decided to reinstate and whose applications are still being held for future consideration. With certain exceptions, notably as to the basis for the foremen's objections to the reinstatement of the five employees, the agreed statement and its appendices picture in some detail the events and surrounding circumstances which have given rise to this proceding. Thus, the reinstatement machinery set up by the respondent follow- ing the strike, the steps taken by the respondent to reinstate some employees and not others, the number and identity of the respondent's employees from time to time during and after the strike, and the information and charges as to the conduct of employees of the re- spondent during the, strike appear at length. However, as to two of the three problems presented, the facts given in the agreed state- ment and its appendices are only evidentiary facts. The ultimate' or decisive fact, viz., the motivation for the respondent's decision, is not explicitly stated either "with respect to the five employees whose reinstatement the respondent decided to withhold because -of their foremen's objections or with respect to the 15 employees-- whom- the respondent has never decided to reinstate. As to the former, the agreed statement recites only that, when the foremen of these five employees objected to their reinstatement, the respondent "thereupon" decided to withhold their reinstatement; as to the latter, it appears only that certain information and accusations as to the conduct of its employees during the strike came to the respondent's attention, and that the respondent's plant manager gave delayed consideration to the applications of all 34 of the employees involved in this proceed- ing and, "acting upon" the information and accusations which had been received, decided to hold for future consideration the applica- tions of the 15 employees in question. It has not been explicitly agreed that reinstatement of the five employees was withheld because of the objections of their foremen or because the respondent believed these five employees would not be able to work with their fellow em- ployees, nor has it been explicitly agreed that the respondent decided not to reinstate the group of 15 employees along with the others because of the information and charges which it had received. The motivation might in each instance be inferred, but inference is necessary to supply what the agreed facts have omitted. It is evident, we think, that these omissions were not inadvertent. As to the period prior to the strike it was explicitly recited that the respondent, in deciding to reinstate some of the 34 complainants and not the others, did not give consideration to their union mem- bership or activity during that period. Similarly, when the ulti- mate fact as to the cause of the strike had been agreed upon, it was explicitly stipulated in the agreed statement that the strike ' was PRECISION CASTINGS COMPANY, , INC. 781 not called because of any unfair labor practices on the part of the respondent. No similar or parallel statement is made with respect to the events which followed the strike . On the contrary, the agreed statement and its appendices consist largely of a mass of subsidiary or evidentiary facts relating what took place during and after the strike , from which it was obviously intended that the Board infer and find the omitted ultimate facts. Certainly ,not all these evidentiary facts would otherwise have been regarded as necessary or material , nor would the agreed statement otherwise have been so extended. Moreover, we are of the opinion that conflicting , although per- haps not equally cogent, inferences of ultimate fact are possible on the basis of the agreed evidentiary facts. This would be apparent, if from nothing else, from the obvious reluctance to stipulate the ultimate facts which mark the agreed statement and from the conscious effort that was made to avoid doing so. The Trial Ex- aminer in fact has made findings which the respondent earnestly contends are not justified by the agreed facts. Examination of the evidentiary facts which have been stipulated indicates that there is reason for divergence of opinion as to the inferences which should be drawn . For example, the respondent contends , and some of the agreed facts tend to support the contention , that reinstate- ment of the group of 15 employees has thus far been withheld in part because of certain information and charges as to their conduct during the strike. That such information and charges were re- ceived by the respondent is agreed , and it might be inferred that they, and not any animus against union members or strikers as such, are the reason for the respondent's failure thus -far to reinstate these employees . On the other hand, it appears that three employees who stated in their applications for reinstatement that they had been absent from work during the strike because of intimidation, and who were therefore among the applicants whom it is stipulated the respondent reinstated in order of seniority as work became available, had also been accused of misconduct during the strike. This would tend to support the inference that the respondent was in fact discriminating not between employees allegedly or actually guilty of misconduct and employees not so guilty, but between em- ployees who admitted voluntary participation in the strike and employees who made no such admission . Further support for an inference that the respondent was not in fact concerned with alleged or actual misconduct on the part of strikers might be found in the fact .that four of the five employees whom the respondent decided to reinstate but whose reinstatement was then withheld because of their foremen's objections and a substantial proportion of the 14 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees whom the respondent actually reinstated on and after August 14, 1940, had also been accused • of • engaging in misconduct as reprehensible in some respects as that attributed to some of the group of 15 employees whom the respondent has never decided to reinstate. - The respondent also relies, in part, on the stipulated fact that some of the 15 employees whom it has never decided to reinstate were convicted of contempt of a court order or were named as defendants in criminal proceedings arising out of their conduct dur- ing the strike. It is also stipulated, however, that Carlos Cornwell, an employee who worked during the strike, was found by the court in the contempt proceeding to have testified falsely against one of ,the strikers and was adjudged guilty of perjury and of obstructing the administration of justice. Nevertheless, Cornwell is still work- ing for the respondent. The inference might be made that here, -too, the respondent was discriminating between strikers and non- strikers, rather than between employees who respected judicial process, and, those who did not. If it were necessary to draw inferences with respect to the rein- ;statement procedure adopted by the respondent following the-strike, the same possibility of conflict would apear. The respondent's posi- -tion, expressed in its brief and based upon some of the agreed facts, is that the reinstatement procedure established and followed by it Subsequent to the strike was designed and intended to enforce the re- spondent's seniority rules impartially and without discrimination against employees for union or strike activity. However, it appears that, although the respondent's notice to all applicants for reinstate- ment stated in part that applications would be required of all persons not rehired or reinstated prior to July 14, 1940, 20 employees who had indicated to the respondent during the week ending July 13, 1940, that they desired to return to work were reinstated to their jobs upon the termination of the strike without filing applications. This relaxation of the respondent's reinstatement rules in favor of a group of employees who had indicated a willingness to renounce the strike and thereby the Union might be regarded as some indication that the respondent's primary interest lay in obtaining just such reunuciations from its employees. Any such inference as to the respondent's motive in es- tablishing its reinstatement procedure would perhaps be supported by the respondent's apparent acceptance at face value of the state- ments contained in the application for reinstatement which were filed. Here, again, conflicting inferences would be possible, but it would be at least permissible to infer that the respondent was concerned less with the truth of the reasons assigned by employees for their ab- sence from work than with their open repudiation of the strike. Simi- PRECISION CAST GS COMPANY, INC. 783 ,,Jarly, it might be said that the respondent, by notifying all applicants -that it would give preferential consideration,to the applications of .employees who were absent from work during the strike with leave or because of illness, vacation, or intimidation, in effect confronted its .employees with the alternative of repudiating any connection with the strike or having consideration of their reinstatement applications deferred. We have, therefore, an agreed statement of which substantial parts present "only a debatable question of ultimate fact." 6 In addition, de- cision of these questions of ultimate fact "necessarily involves the duty of drawing inferences from inconclusive, eqiuvocal or evidentiary facts before a legal conclusion can be formed . . ." 7 The task of deciding among conflicting inferences is, of course, a concomitant of administrative as well as of judicial disposition of controversies. There is nothing in the Act to prohibit our performance of, this task in a controversy presented on an agreed statement of facts. Where 'the evidence from which inferences are to be drawn is presented by way of a testimonial record, we' are better able in.drtiwing ,inferences to exercise an informed judgment. Inherent' hallmarks of credibility, internal evidences of testimonial truth or untruth, and all the other criteria furnished by a written record of testimony are then available in gauging the relative weight of conflicting elements in the record upon which decision'is to be made. In addition, we are then able to 'rely in part on the judgment of the presiding officer who hears the wit- 'nesses and observes their demeanor on the stand. An equally informed -judgment is less frequently possible where the evidentiary facts are ,presented by way of an agreed statement and without oral testimony. All the agreed facts must then be taken as true, and there is no less rea- son for accepting some of the agreed facts which tend to support one inference than there is for accepting other agreed facts which tend to support a conflicting inference. We therefore believe it inadvisable, in view of the nature of the agreed statement of facts herein, to decide the present controversy on the basis of the record which has been made., It may be argued, and with some force, that the agreed state= ment is not deficient in failing to state the respondent's intent or motive in adopting the reinstatement procedure which, it followed subsequent to the strike. The validity of the reinstatement pro- cedure under the Act may well be a substantial question of law sus- 6 See Feast v Fifth Avenue Bank, 280 N Y. 189, 193, 20 N E (2d) 388, 390 (1939). ' See Maax v Brogan, 188 1\ Y 431, 433, 81 N. E 231, 232 (1907). s Cf Kapiolani Maternity and Gynecological Hospital v IVodehouse, 70 F (2d) 793 (C.,C. A 9, 1934) ; Feist v Fifth Avenue Bank, 280 N Y. 189, 20 N E (2d) 388 (1939) Rushing v Commercial Casualty Insurance Co , 251 N. Y. 302, 167 N. E. 450 (1929) Marx v Brogan, 188 N. Y 431, 81 N E. 231 (1907) 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceptible of decision without reference to the respondent's bona fides in adopting it. We are of the opinion, however, that no useful pur- pose would be served by a decision finally disposing only of that aspect of the case. Besides, the -respondent's motive in adopting its reinstatement procedure, if and when it can be clearly ascertained, would undoubtedly have an important bearing on the determination of the remaining issues in the case. We shall therefore dismiss the complaint in its entirety, but with- out prejudice to the institution of a new proceeding. On 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 and business of the respondent occur in com- merce, within the meaning of Section 2 (6) of the Act. 2. National Association of Die Casting Workers, Region No. 5, affiliated with C. I. 0., is a labor organization, within the meaning of Section 2 (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 the complaint against the respondent, Precision Castings Company, Inc., Cleveland, Ohio, be, and it hereby is, dismissed without prejudice. MR. GERARD D. REILLY took no part in the consideration of the above decision and Order.