American Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

May 23, 1938

7 N.L.R.B. 375 (N.L.R.B. 1938)

In the Matter of AMERICAN MANUFACTURING COMPANY. INC. and
INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL UNION No. 791
Case No. C-378.-Decided May 23, 1938
Oil Field Supplies Manufacturing Industry-Interference , Restraint, and
Coercion : threat to close plant-Company -Dominated Union: domination of and
interference with formation and administration ; support ; soliciting membership
in ; participation of supervisory employees ; permitting organizational activities
during working hours ; special form of remedial order : cease and desist from
dominating or interfering with administration of, and contributing support to-
Discrimination : discharge : for union membership and activity ; to discourage
membership in union-Reinstatement Ordered-Back Pay: awarded to discharged
employees.
Mr. E. P. Davis, for the Board.
Mr. D. A. Brilhart, of Dallas, Tex., Slay cfi Simon, by Mr. H. J.
Zimmerman, of Fort Worth, Tex., and Mr . Fred H. Barney, of Fort
Worth, Tex., for the respondent.
Mr. A. L. Miner, of Fort Worth, Tex., and Mr . James F. Leahy, of
Cleburne , Tex., for the Union.
Mr. Sumner Marcus , of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by International Association of Machinists,
Local Union No. 791, herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Sixteenth Region (Fort Worth, Texas), on September 27,
1937, issued and served its complaint and a notice of hearing upon
American Manufacturing Company, Inc., Fort Worth, Texas, herein
called the respondent, and upon the Union. The complaint alleged
that the respondent had engaged in and was engaging in unfair labor
practices within the meaning of Section 8 (1), (2), and (3), and
Section 2 (6) and (7), of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On October 9, 1937, the respondent duly
filed its answer, in which it denied all the allegations of the com-
plaint, except those relating to the respondent's business, and in which
it set forth as an affirmative defense that John J. Gutoski, with re-
spect to whom the complaint alleged that the respondent had engaged
375
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376
NATIONAL LABOR RELATIONS BOARD
in unfair labor practices within the meaning of Section 8 (3), of the
Act had been discharged because of insubordination . The respond-
ent also filed a motion to continue the date of the hearing until the
beginning of November , on the grounds that it was impossible for
W. J. Gourley , the president of the respondent , who had left Fort
Worth before the hearing was ordered , to return to Fort Worth in
time for the hearing, and that his testimony was vitally necessary to
the proceedings . The motion was denied . This ruling is hereby
affirmed.
Pursuant to the notice of hearing, a hearing was held at Fort
Worth, Texas, on October 11 , 12, 13 , and 14 , 1937, , before Madison
Hill, the Trial Examiner duly designated by the Board. The Board,
the respondent , and the Union were represented at the hearing. Full
opportunity to be heard , to examine and cross -examine witnesses,
and to introduce evidence bearing on the issues was afforded to all
parties.
At the beginning of the hearing , the respondent repeated its mo-
tion for a continuance on the grounds mentioned above. At this
time, counsel for the respondent stated that Gourley knew of the
hearing but was in Wyoming on business and pleasure. The Trial
Examiner denied this motion . His ruling is hereby affirmed. At the
close of the hearing, upon the request of the respondent, the Trial
Examiner ordered that the deposition of Gourley should be taken in
Fort Worth, Texas , sometime during the week of November 1, 1937,
on a date to be agreed upon by counsel.`
At the close of the- hearing, the Trial Examiner granted a motion
made by the attorney for the Board to amend the complaint to
conform it with the proof. This ruling is hereby affirmed.
During the course of the hearing , the Trial Examiner made sev-
eral rulings on other motions and on objections to the admission of
evidence . The Board has reviewed these rulings and finds that no
prejudicial errors were committed . The rulings are hereby affirmed.
On December 14, 1937, the Board ordered an extension of the time
within which to take Gourley 's deposition to December 22, 1937. On
December 20 , 1937, the time within which to take the deposition was
extended to January 3, 1938. On December 31, 1937, a third request
for further extension of the time within which to take the deposition
was denied.
On January 20, 1938, the Trial Examiner filed and served upon
the parties his Intermediate Report, in which he found that the
respondent had engaged in and was engaging in unfair labor prac-
tices within the meaning of Section 8 (1), (2), and ( 3), and Section
2 (6) and (7), of the Act, and in which he recommended that the
DECISIONS AND ORDERS 377
respondent cease and desist from such practices, disestablish the Em-
ployees' Federation of the American Manufacturing Company of
Texas, herein called the Federation , and offer full reinstatement to
John J. Gutoski with back pay.
Thereafter, the respondent duly filed exceptions to the Interme-
diate Report and also requested the Board to reopen the record for
the purpose of receiving the testimony of W. J. Gourley and the
revised testimony of J. R. Hammond, a witness who testified at the
hearing on behalf of the Board. The request that the Board receive
Hammond's testimony was based upon an affidavit of Hammond
which the respondent annexed to its statement of exceptions. The
respondent also filed a brief in support of its various contentions.
The Board hereby denies the respondent's request that the Board
reopen the record for the purpose of receiving the afore-mentioned
evidence. The respondent has had ample opportunity to produce
Gourley's testimony . Hammond's revised testimony is, for reasons
mentioned below, not material to the issues in the case.
On May 4, 1938, the respondent and the Union were offered alt
opportunity to apply within 10 days for oral argument or for permis-
sion to file briefs,but neither so applied.
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 Texas corporation, having its principal office
and place of business in Fort Worth, Texas, and warehouses at
Hobbs , New Mexico , and at Ellenwood , Kansas. It manufactures
oil field supplies, including pumping equipment, pumping jacks,
shackle irons, and pumping units. In the manufacture of these
articles it uses approximately 40,000 tons of raw material annually,
almost all of which is shipped from Pennsylvania, Ohio, Colorado,
Alabama, and Illinois. Thirty per cent of the respondent's =sales
are made in southern and western States, other than Texas.
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists, Local Union No. 791, is
a labor, organization affiliated with the American Federation of
Labor, admitting to its membership production employees of he
respondent.
Employees' Federation of the American Manufacturing Company
of Texas is an unaffiliated labor organization which admits to mem-
bership all the respondent's production employees.
378 NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Federation
The Union began an organizational drive among the respondent's
employees in the latter part of April 1937. A meeting of the Union
was held in Fort Worth on May 10, 1937.
At approximately the same time , W. H. Thompson , a salesman em-
ployed by the respondent , who was stationed at Houston , Texas, came
to Fort Worth with the intention of persuading the respondent's pro-
duction employees to form an " inside" union patterned along the lines
of the Employees ' Federation in the Humble Oil & Refining Company,
one of Thompson's customers . In order to aid him in accomplishing
his purpose , Thompson had acquired several photostatic copies of the
constitution of the organization in the Humble plant and of news-
paper accounts of an election at which the employees of the Humble
Company had voted in favor of this organization . At Thompson's
suggestion , these photostatic copies were posted on bulletin boards of
the respondent 's plant by , among others , Jake Davis, brother of Win-
field Davis, one of the respondent 's foremen. The photostatic copies
remained on the bulletin boards for approximately a week.
On May 17, 1937, and also on an occasion a few days thereafter,
meetings were held at the respondent 's engineering offices, at which
some of the respondent 's employees , including several foremen, were
present. At both of these meetings Thompson spoke in favor of the
formation of an "inside " union. Cummings , who was employed by the
respondent on the night shift , testified at the hearing that he had gone
to one of these meetings after having been "invited" by Sam Yost, his
foreman, to do so. He also testified that he went at approximately
5 o'clock, that he stayed for an hour , and that he did not lose any wages
on that. account. There was some conflict in the evidence as to when
the night shift began work at the respondent's plant at the time of
these events . There was no testimony , however, that placed the be-
ginning of the night shift later than 5: 30 p. in. The meeting which
Cummings attended was therefore held at least partially during work-
ing hours of the respondent 's plant. No evidence was offered to prove
that Yost had not asked Cummings to go to the meeting.
At one of these meetings C. B. Nabors, J. D. Paul , and R. L.
Arnold were appointed officers of a temporary committee for the pur-
pose of organizing the Employees' Federation of the American Manu-
facturing Company of Texas. R. L. Arnold and four other members
of the committee were foramen. At Thompson's suggestion, the com-
mittee circulated and posted on bulletin boards in the respondent's
plant a mimeographed letter in which the members of the committee,
whose names appeared on the letter , advised the respondent's em-
DECISIONS AND ORDERS 379
ployees to read the constitution and ',the bylaws of The -Federation
which were' circulated with the letter and to prepare themselves for an
election which would be held shortly for the purpose of determining
whether the respondent's employees desired the Federation.
Thompson left Fort Worth at about this time, after having placed
orders for the printing of not only the constitution of the new organ-
ization but also ballots and other material necessary to the organization
of the Federation.
On May 20 or 21 the announced election was held. The ballots
were distributed during working hours and, after being marked, were
placed in a wooden box which stood near the time clock for 24 hours.
The manner in which the election took place was thus calculated to
give to the respondent's employees the impression that the respond-
ent's officials regarded the new organization favorably. The vote in
favor of the Federation was 139 to 18.
The election also provided a ready means whereby the new organ-
ization could acquire members, since there was printed at the bottom
of each ballot an application for membership in the Federation to be
signed by the voter. It is further to be noted that an examination of
the marked ballots would have yielded to any one who might be inter-
ested the names of the respondent's employees who were in favor of
an "inside" union.
After the election, the organizational activities of the Federation
continued. By the beginning of June some 55 membership cards had
been signed by the respondent's employees in addition to those which
had been signed by approximately 140 of the employees as part of the
process of casting a vote in the election. Solicitation of membership
was carried on during working hours. During this period, a second
election was held in the same manner as the first for the purpose of
electing departmental representatives to a committee which was to
represent the Federation in negotiations with the' respondent. Voters
were again required to sign their names to the ballots, and the ballots
were numbered.
Among those who were active in the successful launching of the
Federation after Thompson's departure was Mike Lavy. At one
time during this period, Lavy was acting as a clerk whose duties in-
cluded the making of time 'and material studies on various jobs and
involved his constantly moving around the plant. He helped to sup=
ply employees with ballots for the elections. He solicited members in
the new organization during working hours. He was elected secretary
of the Federation at a meeting- of the Federation.held on June 20,
1937, attended by approximately 30 persons. It was he who on his
own initiative -caused the Federation to become dormant after he had,
been told by a representative of the Board on July 9, 1937, that the
380 NATIONAL LABOR RELATIONS BOARD
legality of the Federation was in question. In August 1937 Lavy was
transferred by the respondent to a position which paid $15 per month
more than his old job had paid, and where it became Lavy's duty to
help speed up production. Lavy kept some of the Federation records
in his office, which he shared with K. Barney, superintendent of the
respondent's plant, and two other clerks.
On June 21 the Federation requested a collective bargaining con-
ference with the respondent. Gourley, on this same day, assented to
this request. On July 9 a meeting was held at which the question of a
contract was discussed between the respondent's president and rep-
resentatives of the Federation. The respondent refused to make any
concessions. On the same day the respondent's plant was visited by
a representative of the Board for the purpose of investigating the
charges which have given rise to the present proceedings. As noted
above, the Federation has been dormant since July 9.
The respondent's contention is that the Federation was organized
solely by employees of the respondent and without the aid or authori-
zation of any of the respondent's officials. It relies on the fact that in
the period during which the Federation came into being-that is, from
May 15 to June 1-both Gourley, the president, and F. H. Barney, the
vice president of the respondent, were out of Fort Worth, and on the
fact that F. H. Barney, the only official of the respondent who testi-
fied at the hearing, stated that whenever the question of unionism
arose he would say : "I cannot dictate to you and do not want to.
Now, you boys be just fair in every way. That is all the American
Manufacturing Company wants and I will have nothing to do with it."
On other occasions, he testified that he had said : "Boys, whatever you
do, be fair, but don't ask me to tell you what to do."
The plant's functions did not cease, however, during the absence
of Gourley and F. H. Barney. K. Barney, F. H. Barney's son, was
superintendent and had full charge of the production aspects of the
respondent. Some of the activities of the Federation in the plant,
such as the elections, were so overt that he could not have failed to
have seen them. Moreover, his subordinates, the foremen in the plant,
and Lavy, his office mate, actually participated in the activities of the
Federation.
The evidence also fails to support the respondent's contention that it
maintained a strictly "hands off" policy in regard to its employees'
union activities. The uncontradicted testimony of Napps and Cum-
mings shows that on at least two occasions when Gourley had met
with a group of the respondent's employees in order to discuss the
question of wages and hours he had gratuitously volunteered the
opinion that a person was foolish to pay $3 a month to a union for
DECISIONS AND ORDERS 381
the privilege of working and that if he could not operate his business
the way he wanted to he would close the gate and go fishing. On
May 6, on one of those occasions, Gourley had also suggested the for-
mation of an independent union. Moreover, there was testimony by
two employees who attended the first meetings of the Federation in
May that Thompson had expressed the opinion that Gourley would
never recognize an outside union. Thompson denied at the hearing
that he had made such a statement; but the logic of the situation, as
well as the weight of the evidence, leads us to the conclusion that he
did make this statement and that this was doubtless an accurate ap-
praisal of Gourley's attitude towards unions.
The Trial'Examiner found that Thompson had conceived the plan
for introducing the Federation into the respondent's plant in April.
This finding was based on the testimony of J. R. Hammond, an em-
ployee of the Sam H. Lane Printing Co., which printed the ballots,
constitution, and other printed material used by the Federation in its
formation and organizational activities. Hammond's testimony was
also the basis of the granting of a motion by the Board to amend the
complaint to conform to the proof.
After the filing of the Intermediate Report, the respondent submit-
ted a sworn statement by Hammond that his original testimony was in
error and that the orders for the printing had been given in May and
not in April. It is immaterial whether Thompson placed the printing
orders in April or May. The significant fact in Hammond's testimony
is that Thompson, who had nothing to gain from the formation of the
Federation, placed all the orders for the Federation's printing
requirements.
We find that the respondent, by making clear to its employees its
hostility toward outside unions, by permitting the Federation to
organize during working hours, and by donating the services of one
of,its salesmen and of several of its supervisory employees, has domi-
nated'' and" interfered with the formation and administration of the
Federation and has contributed support to it. By so doing, it has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
B. The discharge of Gutoski
Prior to June 12, 1937 , John J. Gutoski had been employed con-
tinuously by the respondent for 3 years. His foreman , Winfield
Davis, testified at the hearing that he had been an average worker.
The evidence indicates that this was an understatement . Early in
May 1937, Gutoski had been granted a 5 cents per hour raise when he
requested it. In the middle of May 1937, he was made an assistant
382 NATIONAL LABOR RELATIONS BOARD
foreman. There is a dispute in the evidence whether this was a change
in Gutoski's employment but both F. H. Barney and Davis referred-
at the hearing to Gutoski's having been "promoted."
Gutoski testified that prior'to June 12, 1937, he as well as other
employees customarily "laid off"'several times a month; that is, if on a
given day he felt so inclined he would not go in to work. He also,
testified that he often left work during the day after securing permis-
sion to do so. Davis, his foreman; testified that since he had been
granted a raise, Gutoski had left work early three or four times with-
out securing permission to do so. He admitted, however, that he had
never said anything about the matter to Gutoski.
On June 12, 1937, Gutoski left his work at noon. The regular
quitting hour was later in the afternoon. He testified that before work
started on the morning of June 12 he had Asked Davis' permission
but that Davis had not made any response; that at 11 a. in. he had
said to Davis : "Cap, you might as well get off and go with me," and
that Davis had replied : "No, I have too much work to do and I had
better stay here"; and that at noon, as he was leaving the plant, Davis
had said to him "Nobody said you could go yet," and had turned
around, meanwhile laughing. -Davis testified that when Gutoski
asked permission to leave, Davis had told him that he could not
because there were three or four men off at the plant and Davis could
not spare him; that at noon, as Gustoski was leaving, Davis had said:
"John, there hasn't any one told you that you could leave"; and that
Gutoski said nothing and left. Davis further testified that he re-
ported this incident to K. Barney and recommended Gutoski's dis-
charge. The Trial Examiner found that Gutoski was not guilty of
insubordination, because there was evidence that in the past Davis
had often delivered" orders in a joking manner to his, subordinates
and that Gutoski believed that Davis was joking this=Time.
The evidence clearly indicates, however, that whether or not
Gutoski was guilty of insubordination, such insubordination was not
the cause of his subsequent discharge. On Monday, June 14, when
Gutoski returned to work, he was told by K. Barney that Gourley
had ordered him to be laid off for a week. Barney added at this time
that Gutoski's work had not been satisfactory and, when asked
what he meant by this, the said : "I do not think you have been doing
as much work as you could do.", On Tuesday, June-15, when Gutoski
asked Gourley why, he had been laid off, Gourley replied : "Well,
from,what I can find out you have been trying to run the plant down
there and I have men hired to run things." He said nothing at
this time about Gutoski's having disobeyed his superiors or about his
work having been unsatisfactory. Gutoski then asked Barney to
intercede with Gourley on his behalf, and Barney said he would do
DECISIONS AND ORDERS 383
so that night. When Gutoski returned the following morning, June
16, Barney said that he would see Gourley that morning concerning
Gutoski's case. While Gutoski was waiting for the result of this
interview, Gourley happened along and said that there was no use
in Gutoski's hanging around and that he might as well look for
another job. According to Gutoski's testimony, this was the first
indication that he had that he was discharged and not merely laid
off temporarily. Gourley gave no reason at this time for the
discharge.
The respondent, at the hearing, offered no explanation of the
actions of Gourley and K. Barney in regard to Gutoski. The only
explanation that can be garnered from the evidence is the one which
Gutoski testified that Gourley offered to him when Gutoski, on
July 9, asked Gourley for another chance. Gourley said at this time:
"No, sir. I won't put you back to work. If I put you back, it would
just make the Union stronger." Gourley also refused to give
Gutoski a letter of recommendation, on the ground that this would
be the best piece of evidence Gutoski could get -hold of.
That Gutoski was discharged for his union activity becomes even
more apparent from his uncontradicted testimony that he had joined
the Union in the middle of May ; that he had spoken to 40 or 50^ of
the respondent's employees about the Union; and that he had re-
fused to join the Federation when asked to do so by Grady Carter,
a foreman.
A. L. Miner, the local representative of the International Asso-
ciation of Machinists, testified that some of the respondent's employ-
ees stated that they would not join the Union since they believed
Gutoski was fired because of his activities with respect to the Union
and since they feared a similar fate if they joined.
Upon all the evidence, we conclude that the respondent discharged
Gutoski for, the reason that he had joined and i assisted the Union and
that it thereby discriminated in regard to the hire and tenure of
his employment thereby discouraging membership in a labor organi-
zation. By discharging Gutoski, the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section ,
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
384 NATIONAL LABOR RELATIONS BOARD
THE REMEDY
We have found that the respondent has dominated and interfered
with the formation and administration of the Federation and has
contributed support to it. Under such circumstances, the Federation
does not and cannot offer to the respondent 's employees the free rep-
resentation for collective bargaining which the Act requires. We
shall therefore order the respondent to refuse to recognize the
Federation as a collective bargaining representative.
We have also found that John J. Gutoski was discharged by the
respondent for the reason that he joined and assisted the Union. We
will order , therefore , that the respondent offer him reinstatement to
his former position and pay him the amount of money which he would
normally have earned from June 16, 1937, the date of the discharge,
to the date that the respondent makes its offer of reinstatement, less
any amount earned by him during that period.
Upon the basis of the foregoing findings of fact and upoiv` the
entire record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists , Local Union No. -791,
and Employees' Federation of the American Manufacturing Company
of Texas are labor organizations , Within the meaning of Section 2
(5) of the Act.
2. By its domination of and interference with the formation and
administration of Employees ' Federation of the American Manufac-
turing Company of Texas, and by its contribution of support thereto,
the respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and'"tenure of employment
of John J. Gutoski , and thereby discouraging membership in Interna-
tional Association of Machinists , Local Union No. 791 , the respondent
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 ( 3) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
DECISIONS' AND ORDERS
ORDER
385
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 respond-
ent, American Manufacturing Company, Inc., and its officers, agents,
successors, and assigns, shall:
1. Cease and desist :
(a) From dominating or interfering with the administration of
Employees' Federation of the American Manufacturing Company
of Texas, or the formation or administration of any other labor or-
ganization of its employees, and from contributing financial or other
support to Employees' Federation of the American Manufacturing
Company of Texas, or to any other labor organization of its
employees;
(b) From discouraging membership in International Association of
Machinists, Local Union No. 791, or in any other labor organization
of its employees, by discharging its employees or otherwise discrim-
inating in regard to hire or tenure of employment or any term or
condition of employment;
(c) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining and other
mutual aid and protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the National Labor
Relations Board finds will effectuate the policies of the Act :
(a) Offer John J. Gutoski immediate and full reinstatement to his
former position without prejudice to his seniority and other rights
and privileges;
(b) Make whole John J. Gutoski for any loss of pay he has suf-
fered by reason of his discharge, by payment to him of a sum of
money equal to that which he would normally have earned as wages
from June 16, 1937, the date of his discharge, to the date of such offer
of reinstatement, less the amount which he has earned during such
period;
(c) Refuse to recognize Employees' Federation of the American
Manufacturing Company of Texas, as a representative of any of its
employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
and other conditions of employment;
386 NATIONAL LABOR RELATIONS BOARD
(d) Immediately post notices in conspicuous places throughout its
plant, and maintain such notices for a period of thirty ( 30) consecu-
tive days, stating that the respondent will cease and desist in the
manner aforesaid , and that the respondent refuses to recognize Em-
ployees' Federation of the American Manufacturing Company of
Texas, as a representative of any of its employees for the purpose of
dealing with the respondent concerning grievances , labor disputes,
wages, rates of pay, , hours of employment; and other conditions of
employment ;
(e) Notify the Regional Director for the Sixteenth Region in
writing within ten (10 ) days from the date of this order what steps
the respondent has taken to comply herewith.