American Casting Service, Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1965

151 N.L.R.B. 172 (N.L.R.B. 1965)

172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a threat to take a member's card away if he furnished a statement to the Board
agent. This the Board found equivalent to a threat with respect to his employment
security. These cases are not persuasive much less controlling here.
Section 8 (b)(1)(A) cannot be regarded as an analogue of Section 8(a)(4).
I conclude that the allegations of the complaint have not been sustained.
CONCLUSIONS OF LAW
1. Ferguson is an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Respondent is a labor organization within the purview of Section 2(5) of the
Act.
3. Respondent has not engaged in the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusion of law and upon
the entire record in this case, it is recommended that the complaint be dismissed.
American Casting Service , Inc. and International Molders' and
Allied Workers' Union of North America , AFL-CIO, Petitioner
American Casting Service , Inc. and International Molders' and
Allied Workers' Union of North America, AFL-CIO. Cases
Nos. 25-RC-2525, 25-RC-2526, 25-CA-1877, and ??5-CA-1878.
February 18, 1965
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTIONS
On November 16, 1964, Trial Examiner Frederick U. Reel issued
his Decision in the above-entitled proceeding finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending that it cease
and desist therefrom and take certain affirmative action, as set
forth in the attached Decision. The Trial Examiner also found that
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of these allega-
tions. He further found that the Union's objections to the elections
in Cases Nos. 25-RC-2525 and 25-RC-2526 should be sustained and
recommended that the elections be set aside. Thereafter, Respond-
ent filed exceptions, with a supporting brief,' to the Trial Examiner's
Decision. The General Counsel filed a brief in support of the Trial
'In its brief Respondent also filed a motion to dismiss the represention matter as
moot In support thereof , Respondent alleges that it has entered into an agreement
with another party for the lease of its Princeton , Indiana, facility , with an option to
purchase at the end of 3 years ; and that under the terms of this agreement the Princeton
plant, which is presently closed for retooling and repairs, will reopen under the exclusive
management of the lessee and at such time , the Owensboro plant will cease operations as
a foundry . Even assuming the truth of these allegations, we perceive no reason for
denying the employees the right to choose a collective -bargaining representative , if they
so desire Accordingly , the motion is denied.
151 NLRB No. 23.
AMERICAN CASTING SERVICE, INC. 173
Examiner's Decision and an answering brief to Respondent's excep-
tions and brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Decision, the exceptions and briefs, and the entire record in these
cases, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order
recommended by the Trial Examiner and orders that Respondent,
American Casting Service, Inc., Owensboro, Kentucky, and Prince-
ton, Indiana, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that the election held on January 7, 1964,
among the employees of American Casting Service, Inc., at its
Owensboro, Kentucky, and Princeton, Indiana, plants, in the
appropriate units, be, and they hereby are, set aside.
[Text of Direction of Second Elections omitted from publication.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This consolidated proceeding , heard before Trial Examiner Frederick U. Reel at
Princeton, Indiana, on August 11 through 14, 1964 , presents primarily factual issues
as to whether the Respondent Employer violated Section 8(a)(1) and ( 3) of the
Act, and in so doing materially affected the outcome of certain representation elec-
tions. The "CA" cases 1 originated in charges filed January 14, 1964 , and a con-
solidated complaint thereon issued June 11, 1964 . The "RC" cases arise out of
consent elections held January 7, 1964 , both of which the Union lost but to both of
which it filed on January 14, 1964 , "Objections to Conduct Affecting Results of
Election," alleging, inter alia, the same conduct alleged in the "CA" charges filed
that date . The Regional Director in his report on the objections issued June 26,
1964, consolidated the "RC" and "CA" cases for hearing in view of the common
issues raised.
After the hearing , briefs were filed by General Counsel and by the Respondent
Employer . Thereafter , General Counsel filed a motion for permission to file a reply
brief, and a motion to strike certain testimony , the latter resting on an alleged
failure to provide documentation in support of certain testimony , cross-examination
of which was curtailed with the understanding that supporting documentation would
be submitted . In the absence of opposition thereto, these motions are hereby
granted, the reply brief has been filed , and the testimony in question (page 845,
line 13, through page 848, line 12) is stricken.
1 There are two "CA" cases and two "RC" cases because separate charges and petitions
were filed covering American Casting's two plants.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon consideration of the record, including my observation of the witnesses, and
after careful study of the briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER, AND THE LABOR ORGANIZATION INVOLVED
American Casting Service, Inc., hereinafter called the Company, is engaged at
Owensboro, Kentucky, and Princeton, Indiana, in the manufacture and sale of cast-
ings and related products, and annually ships from its latter plant to points outside
Indiana products valued in excess of $50,000. The Company admits, and I find,
that it is engaged in commerce within the meaning of the Act, and that International
Molders' and Allied Workers' Union of North America, AFL-CIO, is a labor organi-
zation within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. Owensboro plant
Union activity commenced at both Owensboro and Princeton plants in October
1963. At Owensboro, the men held meetings on October 17 and 21 in the home of
employee Thomas Mason. The day after the second meeting one Paul Young,
alleged in the complaint to be a supervisory employee, asked employee Johnson if
the latter knew anything about a union meeting that had been held; Johnson, who
had attended the meeting and signed a union card, replied in the negative. Within
the next 2 weeks Jack Murphy, likewise alleged to be an Owensboro supervisor,
asked employee Stafford if the latter knew anything about a union in Owensboro
(Stafford, who had signed a card, denied knowledge of the Union), mentioned to
employee Mays that "the guys were trying to get up a union" and that "Mr. Davis
[company president] mentioned something about giving the guys a raise," and fre-
quently asked employee Bryant if he knew anything about the Union. Murphy also
told Bryant in these conversations that it would be best, if Bryant "knew anything,"
to tell Murphy "because [Bryant] was going to be out of work ... Jack Davis would
close up the plant and go to Florida." 2 Finally, employee Mason testified that some-
time in November 1963, in the course of a conversation with Davis, the latter
observed that "the union is trying to get in here" and added that "Before I'll have the
Union, I'll shut both plants down and go to Florida."
Davis denied making the statement just quoted, and the issue becomes one of
credibility. Upon considering the entire record including the demeanor of Mason
and Davis on the witness stand, bearing in mind the unconcealed antipathy-a mix-
ture of hatred and contempt-which Davis in his testimony and in his correspondence
revealed toward the Union, and giving due weight to company counsel's argument
that Mason was the sole witness who testified to ever hearing Davis make such a
remark at Owensboro (but Davis did make a similar remark at Princeton, see infra),
I find that Mason's testimony in this regard is credible and I discredit Davis' denial.
With respect to Young and Murphy, who were not called as witnesses, the record is
clear that both enjoyed supervisory status at Owensboro, although Young, who also
worked at Princeton during part of the period here relevant, was not a supervisor
at that plant. At Owensboro, Young hired employees, gave them orders, granted
time off, directed them to work overtime, transferred an employee to another job,
docked an employee's pay, corrected their timecards, and wore a uniform labeled
"foreman." Young told employees at Owensboro that Murphy was a supervisor,
and they obeyed Murphy's orders; also Murphy hired and discharged employees, and
was compensated for holidays not worked, unlike rank-and-file employees. I there-
fore find that Young and Murphy were supervisory employees at Owensboro, and
that as they were agents of the Company, it is responsible for their interrogation of
employees as to union activity and for Murphy's threat to Bryant. The interrogation,
considered in the context of the entire case, and Murphy's and Davis' remarks about
the closing of the plant if the Union came in, violated Section 8(a) (1) of the Act.
2 Bryant testified that he did not take Murphy too seriously, but this does not remove
the illegal character of the threat. Cf. NLRB. v. Donnelly Garment Company, 330
US 219,231.
AMERICAN CASTING SERVICE, INC. 175
2. Princeton plant
General Counsel in his brief assigns 13 specific episodes as violations of Section
8(a)(1) at the Princeton plant. I find it unnecessary to go into detail on each of the
13, as discussion of only a few will demonstrate violations of that section. Most of
the items not discussed, moreover, are those in which I would find no violation,
either because of credibility resolutions or because I would hold the alleged perpe-
trator not to be an agent of the Company under all the circumstances.
a. Early in November Davis made a speech to the assembled employees which
was largely devoted to the problems caused by producing defective work, but in the
course of which he stated that if the Union came in he would shut the plant, move
to Florida, and live off other income. This threat (denied by Davis, but testified to
by other witnesses whom I credit in this respect, notably Hildred Perry and White,
substantially corroborated by Cullivan and Miskell) plainly violated Section 8(a)(1)
of the Act 3
b. On November 4, 1963, when Mr. and Mrs. Davis were in Florida, they learned,
through a long-distance telephone conversation with Betty Barrett, the employee in
charge of their Princeton office, of the receipt of the Board's notification that the
Union had filed representation petitions. After this telephone conversation Barrett
asked rank-and-file employee Hildred Perry, who is the brother of Mrs Davis and
of Supervisor Lewis Perry, to circulate among the employees a petition opposing the
Union and obtain signatures thereto. Hildred Perry did so during working hours,
advising some of the employees in the course of so doing that their signatures on the
paper would safeguard their jobs and cause Davis not to shut down the plant. After
obtaining approximately 30 signatures, Perry returned the paper to Barrett Super-
visors were aware of Perry's circulation of this petition at the time, and Davis
became aware of it when he returned from Florida.
General Counsel contends that Barrett acted pursuant to telephonic instructions
from Mr. or Mrs. Davis to defeat the union movement, and that in any event Barrett
was a supervisor. I reject these contentions. The Davises denied giving any such
orders to Barrett, and the latter, no longer employed by the Company, was not
called as a witness. There is no credible evidence that the Davises so instructed
Barrett, and the testimony of Hardiman, which tends to support General Counsel's
contention, is of doubtful probative value, particularly in the light of his retraction
on cross-examination. As to Barrett's "supervisory" status, I find that she occupied
a key position in the office and hence frequently relayed information to the foreman
or to other employees concerning production requirements, but I do not find her to
be a supervisor of the production workers within the meaning of the Act. How-
ever, on the occasion in question she had just spoken with the absent owners by
long-distance telephone, a fact of which numerous employees were aware. In these
circumstances the employees would have reasonable cause to believe that she and
Hildred Perry, who acted at her direction, were agents of management, a belief
reenforced by the fact that supervisors were aware of, and did not attempt to stop,
Perry's activity. In the light of these facts, and in view of Davis' failure on his
return to disavow this activity, I find that the Company is properly chargeable
therewith, and that it thereby further interfered with, restrained, and coerced its
employees in violation of Section 8(a)(1). Cf. N.L.R.B. v. Birmingham Publishing
Co., 262 F. 2d 2, 8 (C.A. 5).
c. Shortly after the Davises returned from Florida, Mrs. Davis, an active officer
of the Company, asked employee Miskell what the latter's son-in-law, employee
Angle, would do about the Union. Upon receiving Miskell's assurance that Angle
was antiunion, Mrs. Davis said, according to Miskell, "I trust to you that he don't
have a damn thing to do with it. If he does, I'll fire his damn ass out the door." I
do not regard Miskell as credible in all respects. On the other hand, Mrs Davis
was not asked to, and did not, contradict this testimony. From her demeanor and
from her unconcealed hostility to the Union (she admitted telling Barrett to throw
in the wastebasket the communications from the Board about the Union), I am
inclined to credit Miskell on this matter. The threat to discharge an employee for
union activity was, of course, violative of Section 8(a) (1).
3 Davis also posted early in November a notice that the plant would close Novem-
ber 22, 1963, and Ceneial Counsel alleges that the notice was "bogus " I am inclined
to agree with the contention, but the matter is plainly cumulative to the violation in-
herent in Davis' speech, and I theiefore pretermit discussion of the notice
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
d. I credit the following: (1) the testimony of employee McGarrah that in the
summer of 1963 General Foreman Kinder stated that Davis would close the plant
if a union organized it; (2) the testimony of employee White that in November
1963 Mrs. Davis asked him if he could find out who were the union leaders; and
(3) the testimony of employee Parson that in January 1964 Kinder asked if he knew
who was the union leader. Each of these episodes, particularly when considered in
the light of Davis' threat to close the plant if the Union came in, constituted viola-
tions by the Company of Section 8(a) (1).
B. The alleged discriminatory discharges
1. Owensboro plant
In the late fall of 1963 (between November 8 and December 15), the Company
discharged 7 of the 20 employees at the Owensboro plant .4 Each of the seven had
signed union cards; the employment of only three of the Owensboro employees who
had signed union cards survived the discharges. Of the seven dischargees, six (all
but Mays) had attended at least one of the union meetings in October; as noted
above, the Company, through Paul Young, had some knowledge that a union meeting
had occurred at that time. Only two other employees were separated from the
Owensboro payroll during this period, Kincaid, who "halfway quit" on December 4
after less than 2 months' employment,5 and Burch, who may also have quit, as he is
not included among the laid-off employees listed by Davis in a pretrial affidavit.
Among the employees retained at Owensboro throughout this period were three
nonunion men, Oscar Pierce, who appears to have been hired in September 1963,
Donald Gertersen and Bob Hartley, who were apparently hired in August. These
three employees were junior in point of service to most of the laid-off employees.
The Company rehired one of the dischargees in February 1964, one in March,
offered a job to a third in February, to a fourth about August 1, 1964, and made an
offer of reinstatement to each of the remaining three at the hearing in this case.
Between the end of February 1964 and the hearing in this case, the Company hired
approximately 25 new employees at Owensboro, and in that same period terminated
the employment of approximately 20 Owensboro employees.
The foregoing summary, coupled with the evidence of company hostility to the
Union and company knowledge of the Union's organizing campaign, sets forth the
essence of the General Counsel's "affirmative case" as to the seven discharges or
layoffs at Owensboro. The Company, in its answer, and also in a pretrial affidavit
of Davis, alleged that each of the seven were guilty of one or more infractions or
shortcomings which led to his separation from the payroll. At the hearing, how-
ever, neither Davis nor any other company witness testified in support of these alle-
gations. Insofar as those matters were developed on the record at all, the testimony
is that of the employees in question, each of whom either completely denied or min-
imized the offense alleged. Under these circumstances, I cannot find on this record
that the individual employees were selected for layoff or discharge for the reasons
peculiar to each of them alleged in the answer or in Davis' affidavit. This, of course,
by no means establishes that General Counsel has carried his burden of proof that
they were discriminated against because of union activity, as there are other, more
general, grounds for separation raised as defenses, and other circumstances to con-
sider in determining whether General Counsel has carried his burden. As this
record developed, however, I find that the Company's allegations as to the individual
shortcomings of these employees are not sustained by the evidence.
The Company contends that the Owensboro layoffs (as well as those at Princeton,
discussed below) resulted from economic factors, including the seasonal slack occa-
sioned by freezing weather which curtailed the demand for pipe and sewer installa-
tion, and a loss of business resulting from customer dissatisfaction with the Com-
pany's defective products. The seasonal slack, while it may well explain the 2-week
shutdown which occurred late in December, does not appear to warrant the curtail-
ments which began early in November, for the testimony indicates that the seasonal
layoffs could be expected in December and January.
A major issue in the case, affecting both the Owensboro and Princeton layoffs,
arises out of the Company's loss of business. General Counsel concedes that early
in November 1963, shortly before the layoffs in this case and shortly after learning
4 Thomas Mason, Jewell Stafford, George Bryant, Wilbur Mays, Hubert Gibson, Joe
Jackson, and Wayne Johnson
5 General Counsel appears to have abandoned the allegation Kincaid was among those
unlawfully laid off or discharged, and the complaint as to him will therefore be dismissed.
AMERICAN CASTING SERVICE, INC. 177
that the Union had filed representation petitions with the Board, the Company
arranged to have a competitor, Tyler Pipe and Foundry Company, supply castings to
one B & H Sales Company, which prior thereto had been a major customer of the
Company. General Counsel argues that the Company deliberately dropped the
B & H business after hearing of the union activity in order to have an excuse to
reduce its force and lay off union adherents. The Company's position is that it
lost the B & H business because the materials it had sold B & H were defective and
were unacceptable to the eventual users , notably the city of West Palm Beach, Flor-
ida, to whom B & H passed them on. General Counsel contends that the trouble
with B & H customers postdated the November arrangements, and the correspond-
ence introduced into evidence lends some support to this contention. On the other
hand, there is evidence of difficulties in West Palm Beach in September; Davis tes-
tified that he was personally engaged in trying to repair defective work there at the
end of October; and a complaining letter from another contractor with the city,
dated December 11, 1963, indicates that the city's objections to the Company's prod-
ucts were of long standing. I, therefore, notwithstanding the strong contention
advanced by able General Counsel in his fine brief, do not find that the Company
sacrificed its B & H business to have an excuse to cut its payroll and thereby get rid
of union adherents. I further find, in accordance with the Company' s contentions,
that its difficulties with many of its customers arising out of inferior products made
by the Company led it at this time to revert to its former practice of buying a large
number of castings, and producing less of its own for sale to its customers.6
Resolution of these "economic" issues in the Company's favor, however, falls far
short of ultimately disposing of the case. Accepting, as I do, the Company's position
that a loss of business justified a layoff at Owensboro at the time in question, we are
left with the question whether the selection of employees to be laid off was motivated
by their union activity. Summarizing the facts, we have the layoff or discharge of
7 men, all of whom had signed union cards and 6 of whom had attended a union
meeting, and a retention of 13 men, only 3 of whom had signed cards. Moreover,
the Company, openly and avowedly hostile to the Union, did not recall four of the
seven men, although it had numerous job openings in the next 6 months. With
respect to the failure to recall, the Company urges that the men in question were
casual laborers and that it had no policy to seek out former employees to offer them
vacancies. The record indicates, however, that the Company did in fact recall some
of the employees and took the initiative in seeking them out (e.g., Stafford and
Mays), and also establishes that at the time of their separations the men were told
they were temporarily laid off or that they would be called back.
Upon consideration of the entire record, including the evidence of company hos-
tility to the Union, the lack of evidence that the laid-off men were selected for rea-
sons reflecting on their abilities, the failure to recall them when vacancies occurred,
the retention of employees junior in status, and the overwhelming disproportion of
union men selected for layoff when considered in the light of the number of union
members among the employees,? I find and conclude that the Company was motivated
by antiunion considerations in selecting the men to be laid off. Because two of the
laid-off men, Mays and Gibson, had been employed only a few weeks each, however,
I find that even in the absence of discrimination, they would have been included in
6 Employee Stafford testified that his supervisor, Murphy, told him early in November
that Davis had canceled a large order for sewer lids. Even if this testimony were to be
credited, it would not establish an antiunion motivation for the cancellation. Davis'
denial that he ever had an order of the size Stafford reported was phrased in terms of "man-
hole covers" and not "sewer lids," but unlike General Counsel, I view this as a denial
of the episode, and I credit Davis in this respect.
4 Cf the Seventh Circuit's recognition that "the disproportionate treatment of union
and nonunion workers may under certain circumstances be very persuasive evidence of
discrimination." N L.R.B. v. W. C. Bachelder, Receiver for Hoosier Veneer Co , 120 F.
2d 574, 578, cert. denied 314 U S. 647. Accord: N.L R B. v. Winona Textile Halls, 160
F 2d 201, 208 (C A. 8) ; N.L R.B. v. Chattanooga Bakery, Inc., 127 F. 2d 201, 204 (C.A. 6),
cert. denied 317 U.S. 676; N L.R.B. v. Whittenberg Construction Company, 200 F. 2d
157, 159-160 (C.A. 6) ; N.L.R.B. v. W. C. Nabors, d/b/a W. C. Nabors Company, 196 F.
2d 272, 275-276 (C.A. 5) ; N.L.R.B. v. Fredrica Clausen, d/b/a Luzerne Hide & Tallow, 188
F. 2d 439, 442 (C.A. 3), cert. denied, 342 U.S. 868; N.L.R.B. v. Earl I. Sifera, d/b/a Sifera
Candy Company, 171 F. 2d 63, 66 (C A. 10) ; F. W. Woolworth Company v. NLRB.,
121 F. 2d 658, 661-662 (CA. 2) ; N.L.R.B. v. Dimon Coil Company, Inc, 201 F 2d 484,
486 (C.A. 2) ; Amalgamated Clothing Workers of America, AFL-CIO v. N L R B., 302 F 2d
186, 190 (CAD.C).
783-133-66-vol. 151-13
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the layoff which was economically justified. (I also note that Mays did not attend
any union meeting and that he was the first of the group to be offered reinstatement.)
I therefore recommend dismissal of the complaint as to them, and also as to Kincaid
(see footnote 5, supra), but sustain the allegations of unlawful discrimination as to
Mason, Stafford, Bryant, Jackson, and Johnson.
2. The November-December discharges at Princeton
On November 8, 1963, the Company laid off or discharged 7 of its over 50 Prince-
ton employees, and it released 1 more on December 8 and 2 on December 13. As
in the case of the Owensboro layoffs which occurred during the same period, the
Company contends that an economic layoff was necessitated by the loss of business,
and General Counsel claims that the Company created the economic situation to
give it an excuse to oust union supporters. On this issue, as noted above, I find that
General Counsel has not sustained his burden of proof. But, as in the Owensboro
situation, the Company's avowed hostility to the Union leads to an inquiry as to
whether the selection of employees to be laid off was made on a discriminatory basis.
The Company, in its pleadings and Davis' pretrial statements, assigned some grounds
for selecting particular men at Princeton for layoff, but (with one exception, dis-
cussed below) no effort was made to substantiate these matters, and indeed they were
dispelled by testimony at the hearing.
This almost complete lack of any evidence to indicate why particular individuals
were selected for layoff creates some of the difficulties in this case. To be sure, the
burden of proving unlawful discrimination rests on General Counsel; the Company
may discharge for "a good reason, a bad reason, or no reason at all," but not for
union activity. But here General Counsel has established the Employer's extreme
hostility to the Union, the Employer's knowledge of an organizing campaign, and
(as shown below) the Employer's belief that the employees discharged were union
supporters. These circumstances, coupled with the failure of the evidence to sub-
stantiate the claims in the Company's answer relative to the shortcomings of these
employees, give rise to a permissible inference that the selection was motivated by
antiunion considerations. In this setting, it seems appropriate to consider the rela-
tive seniority of the men laid off and those retained. Certainly, in the absence of
contract, the Company was not required to observe seniority. The mere fact that
seniority is a commonly accepted basis of selection would not warrant the Board's
imposing it on the Company in this case. But Davis himself, in his pretrial state-
ment and in his answer to the complaint, referred to seniority as a factor in the
selection for layoff. It seems reasonable to interpret these statements as an admis-
sion by Davis that where all other factors were equal, seniority would govern. The
difficulty from the Company's standpoint is that on this record there is no evidence
to justify findings (except possibly in one instance) which would sustain Davis' claim
that all other factors were not equal. On the other hand, an unexplained failure to
follow seniority is not enough to establish a violation, even by an antiunion employer,
in the absence of evidence that he believed the employees laid off were union
supporters.
At Owensboro the employees had attended a union meeting, and the matter had
been the subject of interrogation thereafter, but at Princeton the chief source of
company knowledge as to which employees supported the Union was the antiunion
petition which Hildred Perry had openly circulated with the admonition that employ-
ees should sign it if they wanted to keep their jobs. This petition was turned in to
the company office, and Davis, in a pretrial letter to the Board's Regional Office,
admitted having a copy of it.
Of the seven men laid off on November 8, four (the two Terrys, Thompson, and
McIntyre) were relatively junior employees in point of continuous service. The
payroll records show that only four retained employees (Ellis, Scott, White, and
Willis) had as little or less continuous service. Under these circumstances, the fact
that the Terrys and Thompson had not signed the antiunion petition, and that McIn-
tyre had only signed after exhibiting reluctance and after special prodding, would
not serve to establish unlawful discrimination against them. Compare the cases of
Mays and Gibson at Owensboro. Although the Company did not advance any
"seniority" argument in its brief, that factor is mentioned in Davis' pretrial statement
and answer as allegedly entering into the determination of whom to lay off. More-
over, once it is accepted (as I do) that a layoff was economically justified, the selec-
tion must be made on some basis not prohibited by law. The Company introduced
no evidence justifying selection of these four employees on a "merit" basis, but there
is evidence (the payroll records) warranting a conclusion that they would have been
reached on a seniority basis.
AMERICAN CASTING SERVICE, INC. 179
With respect to the other three discharged at Princeton on November 8, however,
their seniority far exceeded that of the four retained employees named above. More-
over, as to two of the three, Nelson and Carter, the testimony fails to show any
ground for their being selected for layoff. Carter, who had signed a union card,
had refused to sign the antiunion petition. The record does not conclusively estab-
lish whether Nelson signed it or not, but as he was one of the most active union
proponents, it is a fair inference that he did not, particularly as Barrett, after Nelson's
layoff, express the opinion that he was one of the union leaders. In the light of
these circumstances, of.the Company's open hostility to the Union, and of the lack
of any other reason shown for their selection, I find that the selection of Nelson and
Carter for inclusion in the November 8 layoff was caused, at least in part, by their
engaging in activities protected by the Act.
A closer case is presented by the discharge of McGarrah on November 8. He
had signed the antiunion petition and had not signed a union card. The record
shows, however, that Betty Barrett, the office clerk who had ready access to Davis'
ear and shared her Employer's antiunion sentiments, openly expressed the opinion
that McGarrah was a union leader. Moreover, McGarrah had expressed prounion
views to General Foreman Kinder only 3 months before. On the other hand,
McGarrah was the one employee as to whom there is testimony supporting the
Company's pretrial contention that he was selected for discharge for nonunion rea-
sons. To be sure, McGarrah's testimony tends to explain away the criticisms
directed at him (e.g., he had slept in his truck, but only on his own time; his alleg-
edly low average speed was occasioned by a misrouting; his presence on two occa-
sions in a liquor store was for cashing checks), but the issue is not whether he was
at fault in these matters, but whether the Company selected him for discharge
because it believed him to be at fault or because it believed he was a union leader.
These alleged faults of McGarrah had occurred some time before his discharge. The
sleeping in the truck on his own time occurred "in the summer"; the misrouting
occurred "two or three months before" the discharge; the episodes of check cashing
in a liquor store are not fixed in time, but the first incident was observed by Mrs.
Davis, who was in Florida in late October.
Significant in disposing of McGarrah's case is his testimony that in December, after
his layoff, he met General Foreman Kinder, and Kinder then stated that he had
expected to reemploy McGarrah before that date. Kinder, who testified thereafter,
did not deny McGarrah's testimony, and inferentially confirmed it by testifying that
he viewed the November 8 layoffs, including McGarrah's, as temporary and seasonal.
This testimony tends to negate the evidence that McGarrah's alleged faults caused
the Company to discharge him as an unsatisfactory employee. On the entire record,
including the Company's known hostility to the Union and McGarrah's earlier
expression of support for a union, I find that he was separated on November 8
because of the Company's belief that he was a union leader, and not because of his
alleged faults. The fact that he was not active in the Union does not negate the
illegal character of the illegally motivated action. See The Ridge Tool Company,
102 NLRB 512, 513, enfd. 211 F. 2d 88 (C.A. 6).
On December 8 the Company laid off Everett Cullivan and on December 13,
Isaac Parson and Isaiah Young. Cullivan and Parson had both signed the antiunion
petition; the record is silent as to whether Young signed it, but abounds with evi-
dence that he and Nelson were the union leaders, and Davis, at the hearing, admit-
ted knowing that Young was "very active in the Union." Also on or about Decem-
ber 13, the Company hired a new laborer and apprentice molder, one Whitehead.
Although Parson and Cullivan were laid off out of seniority, no probative evidence
in the record warrants a finding that the Company believed either of them to be
union adherents. (Cullivan's testimony that employee Carnaharn had informed him
of an inquiry from Mrs. Davis as to Cullivan's attitude on the Union is hearsay, as
to Mrs. Davis.) Parson, moreover, was rehired the following month, and (in view
of the 2-week shutdown at Christmas) missed less than 1 month's work. But the
discharge of Young, a known union leader, coincident with the hiring of Whitehead,
and the retention of such junior employees as White, Scott, Ellis, and Willis, is
unexplained on this record, and in the light of company hostility to the Union may
reasonably be attributed to Young's union activity. In short, I find that of the
November-December layoffs or discharges at Princeton, those of Young, McGarrah,
Nelson, and Carter were discriminatory; as to the others, General Counsel has
failed to show that they would not have been reached in a nondiscriminatory layoff
(the Terrys, Thompson, and McIntyre), or that the Company had any belief that
they were engaged in union activity (Parson and Cullivan). Carter and Young were
reinstated in June 1964.
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The alleged constructive discharge of Lloyd Morgan
On January 22, 1964, employee Lloyd Morgan was one of a group of Princeton
employees attending a union meeting in a room at the hike Box Inn. Paul Young,
who had been a supervisor at Owensboro but who was then a rank-and-file employee
at Princeton, was observed making a list of the employees who attended that meet-
ing 8 On January 24, 2 days later, Morgan's supervisor, General Foreman Kinder,
told Morgan that from then on he would be expected to take his regular share of
night duty. This problem had arisen the previous September, and Morgan had been
permitted to avoid night duty on the plea that his wife worked, and he had to stay
home with his children. In January, however, the Company insisted that Morgan
take his regular turn at night, and Morgan therefore quit. The Company rehired
him in May, when he was able to work at night, his wife having left her job in the
meantime.
General Counsel urges that the Company learned, through Paul Young, of Mor-
gan's attendance at the union meeting, and that it forced him to quit by insisting on
working conditions it knew he would not accept, or in other words that Morgan
was "constructively discharged." The coincidence in time lends considerable color
to General Counsel's case. On the other hand, January 24 was also the date on
which the Company rehired Parson, who was to share with Morgan and one Stryker
in the projected night duty. The record indicates that when Morgan quit, Parson
and Stryker shared the night duty, and that on occasion an additional man was
transferred from another job to help them. From this General Counsel argues that
the need for Morgan's night service was not so overwhelming as to warrant forcing
him to quit. The record also indicates, however, that the need for night duty, which
had lessened in October 1963, increased in January 1964, so that Kinder had some
justification in reopening the issue with Morgan coincident with the reemployment
of Parson. On the whole, and while the matter is not free from doubt, I find that
General Counsel has not sustained his burden of proving that Morgan's attendance
at the union meeting on January 22 was a motivating factor in the renewed demand
2 days later that he work his share of night duty, and I therefore recommend dis-
missal of the complaint as to him .9
III. THE OBJECTIONS TO THE ELECTION
The findings set forth above with respect to violations of Section 8(a) (1) and (3 )
at both the Owensboro and Princeton plants in the period between the filing of the
petitions for certification and the election necessarily result in sustaining the Union's
objections to the elections at both plants. I further find, as urged by the Union in
support of its objections in the Princeton case, that the Company ordered McGarrah
off its premises on the day of the election, thereby preventing him from fulfilling
his assignment as observer designated by the Union. In the light of these findings,
I shall recommend that the elections be set aside.
IV. THE REMEDY
As the record reveals deep and pervasive hostility to the employees' exercise of their
Section 7 rights, I shall recommend a cease-and-desist order encompassing the unfair
labor practices found and any other invasions of those rights. Affirmatively, I shall
recommend that McGarrah and Nelson be offered reinstatement, and that they and
the other employees found to have been the victims of unlawful discrimination, be
made whole for wages lost as a result of the illegal action. Backpay due under the
Recommended Order should be computed in accordance with the formulas set forth
in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716. I shall recommend the posting of an appropriate notice and, as noted above, the
setting aside of the elections.
8 So far as this record shows, Young did not act at the Company's direction in com-
piling his list of employees attending the meeting, and I therefore do not find the Com-
pany guilty of unlawful surveillance.
8 The complaint alleged that the Company assigned Morgan "to the night shift . . .
and refused to permit said employee to alternate between the day and night shift . . . .
This allegation was obviously not sustained but General Counsel, without formally amend-
ing the complaint, presented the case on the theory that requiring any night work of
Morgan was a device to force him to quit. I would not view this as a fatal variance if
the proof sustained the new theory, as the facts were fully litigated.
AMERICAN CASTING SERVICE, INC . 181
CONCLUSIONS OF LAW
1. By its interrogation, threats, and failure to disavow the antiunion petition, as
described above, the Company has interfered with, restrained, and coerced its employ-
ees in the exercise of their Section 7 rights, thereby committing unfair labor practices
affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of
the Act.
2. By laying off or discharging employees Thomas Mason, Jewell Stafford, George
W. Bryant, Jr., Joe Jackson, Wayne Johnson, Ralph Nelson, Theron Carter, Isaiah
Young, and Joe McGarrah because of a belief that they were union supporters, the
Company engaged in unfair labor practices affecting commerce within the meaning of
Sections8(a)(3) and (1) and2(6) and (7) of the Act.
Accordingly, upon the foregoing findings of fact and conclusions of law, and upon
the record as a whole, I recommend, pursuant to Section 10(c) of the Act, issuance
of the following:
ORDER
American Casting Service, Inc., its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discriminating against employees because of their membership in, or support
of, International Molders' and Allied Workers' Union of North America, AFL-CIO,
or any other labor organization.
(b) Threatening to close either or both of its plants if a labor organization should
succeed in organizing its employees.
(c) Interrogating its employees as to their membership in, or support of, any labor
organization , or as to their attendance at meetings of any labor organization , or as to
which employees are leaders or supporters of any labor organization.
(d) Circulating , or acquiescing , in and ratifying the circulation of, any antiunion
petition which employees are instructed to sign in order to retain their jobs.
(e) In any other manner interfering with , restraining , or coercing employees in the
exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Offer to reinstate Joe McGarrah and Ralph Nelson to their former or substan-
tially equivalent positions , and make them and Thomas Mason, Jewell Stafford,
George W. Bryant , Jr., Joe Jackson, Wayne Johnson , Theron Carter, and Isaiah
Young whole , in the manner described in the portion of the Trial Examiner 's Decision
entitled "The Remedy," for any loss of earnings suffered by reason of the discrimina-
tion against them.
(b) Notify Joe McGarrah and Ralph Nelson if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms thereof.
(d) Post at its plants in Princeton , Indiana, and Owensboro , Kentucky, copies of
the attached notice marked "Appendix ." 10 Copies of such notice , to be furnished by
the Regional Director for Region 25, shall , after being duly signed by Jack Davis, be
posted immediately upon receipt thereof, and be maintained by it for a period of 60
consecutive days thereafter , in conspicuous places, including all places where notices
to employees are customarily posted . Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered , defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 25, in writing, within 20 days from
the date of the receipt of this Decision , what steps the Respondent has taken to com-
ply herewith.11
"In the event that this Recommended Order is adopted by the Board, the words "as
Ordered by" shall be substituted for "as Recommended by a Trial Examiner of" in the
notice. In the further event that the Board's Order be enforced by a United States Court
of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order
of" shall be inserted immediately following "as Ordered by."
li In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read- "Notify said Regional Director, In writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further ordered that the elections held January 7, 1964 , among the employees of
Respondent in its Princeton , Indiana, and Owensboro , Kentucky , plants, be, and
hereby are , set aside , and that the Regional Director for Region 25 shall conduct
further elections at such plants in the units he has heretofore found appropriate after
he is satisfied that fair elections may be conducted at such plants.
APPENDIX
NOTICE TO ALL EMPLOYEES
As Recommended by a Trial Examiner of the National Labor Relations Board, we
are posting this notice to inform our employees of the rights guaranteed them in the
National Labor Relations Act:
WE WILL NOT discharge or lay off any employee for having joined, or sup-
ported the International Molders' and Allied Workers ' Union of North America,
AFL-CIO , or any other union.
WE WILL NOT ask any employee whether he or other employees are members
of, or leaders of, a union.
WE WILL NOT threaten our employees that we will close our business rather
than deal with a union.
WE WILL NOT in any other way interfere with our employees ' right to join or
support a union.
ALL OUR EMPLOYEES have the right either to join or not to join a union.
WE WILL offer Ralph Nelson and Joe McGarrah their old jobs, and we will
give them and Isaiah Young, Theron Carter , Thomas Mason , Jewell Stafford,
Wayne Johnson , Joe Jackson , and George W. Bryant , Jr., backpay for wages
lost as a result of their discharge or layoff in November and December 1963.
AMERICAN CASTING SERVICE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NoTE.-We will notify Ralph Nelson and Joe McGarrah if either is presently serving
in the Armed Forces of the United States of his right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , 614 ISTA
Center, 150 West Market Street, Indianapolis , Indiana, Telephone No. Melrose 3-
8921 , if they have any question concerning this notice or compliance with its
provisions.
Miscellaneous Drivers and Helpers Union Local 610, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America and Robert R. Wright,
Inc. Case No. 14-CC-286-1. February 19,1965
DECISION AND ORDER
Upon charges filed by Robert R. Wright, Inc., herein called
Wright, the General Counsel of the National Labor Relations Board,
by the Regional Director for Region 14, issued a complaint dated
August 31, 1964, against Miscellaneous Drivers and Helpers Union
Local 610, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, herein called
the Respondent, alleging that the Respondent had engaged in
and was engaging in unfair labor practices within the meaning of
151 NLRB No. 22.