Anchor Coupling Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1953

105 N.L.R.B. 958 (N.L.R.B. 1953)

958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all the employees in the unit are stockholders and therefore
have no conflicting interests among themselves. Accordingly,
IT IS HEREBY ORDERED that the petition for clarification
and motion to postpone election be, and it hereby is, denied.
By direction of the Board:
Ogden W. Fields,
Associate Executive Secretary.
ANCHOR COUPLING CO., INC.and DISTRICT LODGE NO.
140, INTERNATIONAL ASSOCIATION OF MACHINISTS,
AFL. Case No. 13-CA-1250. June 30, 1953
DECISION AND ORDER
On March 30, 1953, Trial Examiner Horace A. Ruckel
issued his Intermediate Report in the above -entitled proceeding,
finding that the Respondent had not engaged in the unfair
labor practices alleged in the complaint and recommending
that the complaint be dismissed in its entirety, as set forth
in a copy of the Intermediate Report attached hereto. There-
after the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National
Labor Relations Act, the Board has delegated its powers in
connection with this case to a three-member panel [Members
Houston, Murdock, and Styles].
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 Intermediate Report, the exceptions and
the briefs, and the entire record in the case , and hereby adopts
the findings,' conclusions, and recommendations of the Trial
Examiner.
[The Board dismissed the complaint.]
'The Intermediate Report contains certain minor inaccuracies , none of which affects
the Trial Examiner 's ultimate conclusions or our concurrence therein. Accordingly, we
note the following corrections
(1) The Trial Examiner found that Newell, a former employee of the Respondent who
was called as a witness by the General Counsel , had been hired by the Respondent for a
skilled job , for which he was found to be unqualified . The record shows that Newell was
hired initially for ordinary production work and was thereafter transferred to a more
skilled job for which he was found to be unqualified.
(2) The Trial Examiner found that Rickman , a supervisor testifying in behalf of the Re-
spondent , stated that several of the employees transferred into Portzen 's department after
he was laid off were only "loaned " from other departments because of a temporary upsurge
of work . The record reveals that Rickman testified that only Martinucci was "loaned" to
the department for an upsurge of work.
105 NLRB No. 105.
ANCHOR COUPLING CO , INC 959
Member Murdock , dissenting:
In view of the fact that there is not sufficient basis to dis-
agree with the Trial Examiner ' s credibility findings under
accepted standards ) ' I agree with the majority ' s adoption of
his findings that the Respondent did not violate Section 8
(a) (1) of the Act by illegally threatening or interrogating
employees concerning their union sympathies or by sur-
veilling employee union activities . I cannot agree, however,
with their adoption of the Trial Examiner's finding that
the Respondent did not violate Section 8 ( a) (1) and ( 3) of the
Act when it terminated Portzen ' s services with the Company.
The uncontroverted evidence shows that Portzen was one
of the most , if not the most, active union adherent of the
Respondent ' s employees . From the latter part of July 1952,
when the union commenced its organizing campaign , through
the latter part of August 1952 , a short time prior to his
discharge on September 17, 1952, Portzen actively and openly
assisted the Union ' s organizer in soliciting union member-
ship among the Respondent ' s employees . He circulated union
literature within a few feet of the door of the Respondent's
machine shop and signed more than 5 employees for union
membership . On a number of occasions he met with the union
organizer in a car parked adjacent to the Respondent's building
and attended formal union meetings.
The evidence further reveals that Rickman , the Respondent's
machine shop foreman, at a time when he "surmised" that
Connally was a union organizer , viewed Portzen in Connolly's
presence on at least one occasion while they were eating lunch
and discussing union matters in a car parked next to the
Respondent ' s machine shop . While Rickman denied that he
had any knowledge that Portzen was interested in "organizing
the employees" it is clear from the facts that Rickman at
least knew that Portzen was interested in union matters.
In any event the Trial Examiner found that the Respondent
had knowledge of Portzen ' s union interest . The Respondent
has not excepted to this finding.
The Respondent argues that Portzen ' s layoff together with
that of Walker , another employee in the same department,
was necessitated by a decrease in its total business due to
the economic pressures of the nationwide steel strike which
was then in progress . The Respondent also asserts that
at the time Portzen was laid off the department in which he
was employed lacked a sufficient amount of work to warrant
the retention of a full complement of employees, and that
Portzen and Walker were let go on the basis of seniority.
The record reveals , however, that another employee who
had less seniority than Portzen was retained.
In opposition to the Respondent ' s defense of economic layoff
the General Counsel submitted into evidence documentary
proof, not controverted by the Respondent , which demonstrates
the following:
2Standard Dry Wall Products, 91 NLRB 544.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a. The Respondent had gradually increased the workweek
of the employees in Portzen's department from 40 hours per
week in August 1952 to 59 hours per week in the middle of
September at the time when Portzen was laid off. The Re-
spondent continued a 59-hour workweek in that department
until the week of October 27, 1952.
The Respondent explains that it has been its policy to main-
tain an overtime work schedule even under circumstances
which would warrant the layoff of a number of employees.
The General Counsel, however, has submitted documentary
evidence revealing that in August 1952, when the Respondent
experienced a decrease in work in another department which
required the layoff of some employees, the Respondent also
reduced the workweek of the department from 50 to 40 hours
per week.
b. Within 4 days after Portzen's layoff the Respondent
transferred an employee from another department into the
side-work department, where Portzen had been employed;
and thereafter on September 30, October 2 and 15, 1952, the
Respondent transferred 3 other employees into Portzen's
department. Furthermore, in January 1952, the Respondent
employed 2 new employees in the department without offering
Portzen reemployment, despite the fact, as found by the Trial
Examiner, that Rickman told Portzen and Walker at the time
of their layoff that they would probably get their jobs back
the first of the year.
In view of the Respondent's failure to demonstrate its
economic necessity for Portzen's layoff, and, even assuming
the need of a layoff, Portzen's selection for layoff while an
employee with less seniority was retained despite the claim
that the layoff was made on the basis of seniority, and also
in view of the failure to recall him in January when new
employees were hired despite Rickman's assurance that he
would probably be taken back then, I believe that the only
reasonable inference to be drawn from the record is that the
Respondent having actual knowledge of Portzen's union activi-
ties discharged him because of such union activities, in viola-
tion of Section 8 (a) (3) and 8 (a) (1) of the Act.
Intermediate Report
STATEMENT OF THE CASE
Pursuant to a charge filed on October 1, 1952, by District Lodge No. 140, International
Association of Machinists, hereinafter called the Union, the General Counsel for the National
Labor Relations Board, herein respectively called the General Counsel and the Board,
by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued his complaint
dated January 5, 1953, against Anchor Coupling Co., Inc., a corporation, herein called
Respondent, alleging that Respondent had engaged in and was engaging in certain unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and
Section 2 (6) and (7) of the National Labor Relations Act as amended, 61 Stat. 136, herein
called the Act. A copy of the complaint, the charge, and a notice of hearing were duly served.
upon Respondent and the Union.
ANCHOR COUPLING CO., INC. 961
With respect to the unfair labor practices, the complaint alleged in substance that Re-
spondent (1) engaged in surveillance of the union activities of its employees and at various
times threatened them with reprisals because of their membership in or activity in behalf
of the Union; and (2) on or about September 16, 1952, discharged Edward Portzen because
of such membership and activity. On January 12, 1953, Respondent filed its answer admitting
certain allegation of the complaint with respect to the nature of its business but denying that
it had engaged in any unfair labor practices.
Pursuant to notice a hearing was held at Waukegan, Illinois, on February 2, 3, 6, 17, and 18,
1953, before me, the undersigned Trial Examiner. The General Counsel and Respondent were
represented by counsel and participated in the hearing. A representative was present on
behalf of the Union. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all parties.
During the hearing the complaint was amended in certain particulars and Respondent's
answer was amended to conform thereto. At the conclusion of the hearing, I granted a motion
by the General Counsel to conform the pleadings to proof in formal matters and reserve
ruling on a motion by Respondent to dismiss the complaint. The parties waived oral argu-
ment and were advised that they might file briefs with me by March 10. Briefs were duly
filed by the General Counsel and Respondent on March 9, 1953.
Upon the entire record in the case and from my observation of the witnesses. I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is an Illinois corporation having its principal office and place of business at
Libertyville, Illinois, where it is engaged in the manufacture of couplings and hose assem-
blies. Respondent also has an assembly plant at Detroit, Michigan, and a warehouse in the
State of Texas. Respondent's plant at Libertyville, Illinois, is the sole plant involved in the
proceedings.
In the course of its operations at the Libertyville plant, Respondent at all times material
hereto has caused raw materials valued in excess of $ 50,000 annually to be purchased and
shipped from points outside the State of Illinois to the Libertyville plant, for use in its
operations. Within the same period, Respondent processed and manufactured at its plant
and caused to be shipped to points outside the State of Illinois, products valued in excess of
$50,000. Respondent admits that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Lodge No. 140, International Association of Machinists is a labor organization admitting
employees of Respondent to membership. It is affiliated with the American Federation of
Labor.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged interference , restraint , and coercion
1. The alleged surveillance
The Union undertook the organization of Respondent's plant beginning about the middle of
August 1952, when its business agent, Thomas Connolly, distributed handbills to the employees
at the entrance to the machine shop, some of which subsequently came to the attention of
Respondent's supervisors, including Casanave Young, its personnel director.
On apparently the second visit to the plant by Connolly during the middle or the latter
part of August, he seated himself in an automobile belonging to Harold Ping, where Ping,
Paul Herman, Barton Brown, and Portzen, all of whom were interested in the Union, were
eating their lunches. The car was backed up to the north side of the machine shop in an
area between the street and the building where employees customarily parked. Connolly
discussed the organization of the employees with the car occupants and gave Portzen and
Ping, and perhaps the others, a number of union application cards. After Ping had left the
car to enter the building, and while the others were finishing their lunch, Rickman came
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out of the machine shop and walked up to the car . The door was partially open and the
windows rolled down . It is not disputed that he asked Connolly if he knew him, Rickman, to
which Connolly replied that he did not. Portzen testified that Rickman then said: "Well,
maybe this is city property, maybe I can't say anything but I can sure listen ," and that he
then stood by the side of the car looking at the occupants for from 5 to 10 minutes.
Rickman denied while testifying that there was any conversation other than his inquiring
of Connolly if he knew hum, and Connolly's negative answer. Ping , having left the car just
before Rickman approached , did not hear the conversation . Neither Connolly , though present
at the hearing , nor Brown nor Herman , was called as a witness and no showing was made of
the unavailability of the last 2 . The question of credibility is therefore posed as between
Rickman and Portzen . I am unable to believe that Rickman stood at the car for from 5 to 10
minutes as testified by Portzen after the very brief conversation which Portzen testified
to, remaining entirely silent . Because of this , because , generally speaking , I was not im-
pressed with Portzen as a witness , and because of the failure to call Connolly , Herman,
or Brown as a witness , I credit Rickman 's denial. There is no showing that Rickman saw
any cards or literature in the possession of Portzen or the others.
On two further occasions several days after the above incident , the same employees were
again eating their lunch in Ping's car , in the same approximate position and in the presence
of Connolly . On the first occasion , according to Portzen and Ping , Rickman appeared on the
scene in the company of Wayne McClannahan , his assistant , and the 2 assumed a position in
front of the car and stood looking at it for a period of from 2 to 5 minutes, without any
words being exchanged . On the second occasion the same thing is said to have occurred, but
involving Rickman alone . Neither Connolly , Brown , nor Herman was called as a witness,
and Rickman and McClannahan denied while testifying, that these incidents occurred as
related. It is possible, of course, that Rickman and McClannahan, who customarily ate lunch
at nearby restaurants and whose cars were parked next to each other in the lot, were in the
parking area on the day in question at some point approximating that fixed by Portzen and
Ping, but I do not find the evidence sufficient to support the contention that they were there
for the purpose of observing what was going on in Ping's car.
The other evidence relied upon by the General Counsel to show surveillance relates to
an occurrence during the first 2 weeks of September. Connolly was again in Ping's car in
the company of substantially the same employees , eating their lunch and discussing plans
for a union beer party. According to Portzen and Ping, when Rickman approached the car,
Connolly called out: "We are going to have a beer party"; to which Rickman replied: "I
don't suppose I am invited ." Connolly said that Rickman could come but Rickman pleaded
a previous engagement . Rickman testified that this conversation took place when he was
on his way to lunch, that Connolly hailed him and that after the invitation to the beer party
had been extended, a brief but general conversation with Connolly ensued, which he char-
acterized as friendly, and during which Connolly said that it would benefit management as
well as the employees if the Respondent had a union shop and Rickman replied that it was
not for him to say and recommended that Connolly see management . The 2 then discussed
1 or 2 mutual acquaintances whom they had previously known. It is not contended that Rick-
man made any statements in opposition to the Union. I find that Rickman did not come up
to the car or enter into conversation until he was hailed by Connolly, and that he did not do
so for the purpose of seeing who was in the car.
It was on the last occasion, related above, that Rickman, according to hum, came to have
positive knowledge that Connolly was a representative of the Union, although sometime
before he had formed that impression. It follows, since he saw Portzen and the others on
at least two occasions in Connolly's company, that he came to know that they were at least
interested in the Union
The further testimony of Ping and Portzen is to the effect that before the advent of the
Union they never saw Rickman in the parking area during the employees' lunch hour, which
was from 12 to 12:30 o'clock, and that, although McClannahan was regularly seen on his
way to buy drinks for the automatic screw machine operators, it was always shortly before
12:30, whereas after organizing had begun he made his trips a few minutes earlier.
Rickman's testimony is to the effect that before the employees came in from lunch he
was frequently outside the plant talking with them, or on his way to a nearby restaurant,
or attempting to keep away from the parking lot the cars of others than employees of Re-
spondent, particularly those belonging to employees of a neighboring plant which were
sometimes parked in Respondent's lot. He stated, in effect, that it was for this last purpose
that he first approached the car in which Connolly was parked, when he asked Connolly if
he knew who Rickman was.
ANCHOR COUPLING CO., INC. 963
I find Rickman's testimony credible, and I do not find that he was making a point of keeping
the neighborhood of the plant under observation because of union organization. I find of
little probative value the testimony of Ping and Portzen that they never saw him during the
lunch hour until after union organization began. Construing this type of evidence most
favorably to the General Counsel, I believe only that Portzen and Ping were sensitive to the
presence of a foreman in the vicinity after union organization began, whereas previously
they were not. Ping was not impressive as a witness. He tended to be eager and to volunteer
information not requested. Moreover, he testified that Rickman was always around on Tues-
days when the Union regularly passed out literature , and was sure that he was present on
Tuesday, August 19. Rickman's uncontroverted testimony, which I credit, is that he was
out of town on his vacation between August 9 and 24. Moreover, the General Counsel stipu-
lated that the testimony of Ping that he had not related the first automobile incident to a
representative of the Board, was untrue.
Viewing the record as a whole, I do not find that it establishes that Respondent engaged in
surveillance.
2. Other alleged acts of interference, restraint, and coercion
On about October 20, 1952, Rickman called Earle Newell, then but not now employed by
Respondent, to his office. Newell testifies that on this occasion Rickman reprimanded him
for talking too much with other employees during working hours, stated that he knew what
they were talking about, and that he did not know whether Newell had signed up for the
Union, although he was not obligated to say. Rickman admitted that he spoke to Newell about
standing around talking with other employees when he should have been working, but denied
that he mentioned the Union or questioned Newell concerning his membership in it. I credit
Rickman's denial.
On another occasion, during the latter part of October, Young, personnel director, called
Newell to his office where a wage raise which he believed he should have had was discussed.
According to Newell, Young asked him if he belonged to the Union, saying that he did not
have to answer, but going on to remark that he judged that there were few people at the
union meeting the night before, that some of the younger fellows had "got those wild ideas,"
and asserted that Newell had been active in the Union. Young denied the statements attributed
to him by Newell. He testified that Newell himself volunteered the statement that he had
belonged to a union at his former place of employment, and that Newell gave it as his own
opinion that this was the reason why Weir, Respondent's superintendent, did not like him and
that perhaps it was interfering with his progress in the plant. According to Young, there
was no other mention of the Union.
Newell was an employee who had been hired for a skilled job for which he was found not
qualified and as a result he had been put on less important work. As a witness he did not
impress me favorably. Some of the time he was eager, and other times reluctant and evasive.
I accept Young's version of this conversation as being substantially in accord with the facts.
B. Portzen ', s discharge ; other alleged acts of interference,
restraint, and coercion
1. Alleged discriminatory statements made to Portzen
Portzen was hired by Respondent on June 2, 1952, to work in the machine shop under the
supervision of Nicholson, supervisor of the hand screw machines and side work. I have
previously alluded to his interest in the Union and Respondent's knowledge of it. Shortly
after organization began, Portzen went to Rickman to see if he had any information about
apprenticeship courses in tool and die making, and Rickman promised him that he would
obtain some. A few days later, Rickman called him to his office and gave him a pamphlet
concerning a course in a local high school and suggested that he go there and investigate.
According to Portzen, as he left the office, Rickman called out: "You had better think before
you do anything," and Portzen replied, "Well, I think before I do anything I will go down and
see the school," to which Rickman responded, "Well, I don't mean that. I mean the other."
It is contended that he meant the Union.
Rickman testified that Portzen came to himonthis and other occasions on similar subjects,
but he was not asked concerning the particular words attributed to him by Portzen. Rickman's
language as related by Portzen was ambiguous. There had not been, according to Portzen,
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any previous mention of union activity during this conversation , and I do not find that Rickman
was referring to Portzen 's interest in the Union.
On about September 2, according to Portzen, Nicholson, his immediate supervisor, ap-
proached him while at work and asked him if he was one of the "union boys," to which Portzen
responded that he was. Nicholson then said that if the Union came in Portzen's hours would
be cut and certain insurance benefits accorded the employees dispensed with, and that he,
Nicholson, would have to get another job. Nicholson denied while testifying that he had any
such conversation. I credit his denial. About a week later, according to Portzen, Nicholson
stopped him as he was punching his time clock, and asked him what he meant by running
around the building "talking to everybody and trying to act big." Portzen replied that he was
not, and the conversation ended by Portzen's asking Nicholson if he could speak to Rickman
and Nicholson's replying that Rickman would probably speak to him. A few minutes later
Rickman called Portzen to his office where he charged him with running around the plant
and talking to employees. When Portzen denied that he had done so, Rickman, according to
Portzen, called him a liar, swore at him, stated that he had "a good mind" to discharge him,
and warned him to pay more attention to his work, saying: "I know what is going on as well
as you do. I am not that dumb."
McClannahan, whom both Rickman and Portzen placed as being present at this conver-
sation, testified that Rickman reproved Portzen for talking too much to other employees,
but denied that Rickman swore at him, or called him a liar, or said that he knew what was
going on in the plant. I accept Rickman's testimony, corroborated by that of McClannahan,
as being true and find that Rickman did not make the statements which Portzen attributed to
him.
2. Portzen's discharge
On the morning of September 16, 1952, Portzen was working on the hand- screw machine
in the hand-screw and side-work department on a job which he stated he had not finished
when Nicholson approached him and told him that he was being taken off that machine and
put on rework for a while About a half hour later Rickman sent for him. In Rickman's
office, Portzen found Walker, i an employee who did substantially the same work that Portzen
did. Rickman told Portzen and Walker that they were being laid off because there was not
enough work for everyone and that they had worked there the shortest time. When Walker
asked Rickman when they could get their jobs back, Rickman replied that it would probably
be the first part of the following year.
The General Counsel rests his contention that the discharge of Portzen was discriminatory
upon his association with Connolly , the Union's organizer, and Ping, Brown , and Herman,
all of whom became members of the Union, and upon what the General Counsel contends are
inconsistencies in Respondent 's economic defense to the discharge.
Portzen, who had been employed by the Respondent the previous June, and Walker, who
was employed about the same time, were the 2 employees with the shortest service in their
department, with the exception of 1, Pelletier, who was hired shortly after them. Pelletier,
however, was a more experienced machinist who could operate a bending machine, while
Portzen and Walker could not. Portzen was only recently graduated from high school and
was just learning the trade. Respondent's defense is that business had been falling off
steadily for some time due to the steel strike and the International Harvester strike. Nicholson
testified that on the day Portzen and Walker were let go he had only 2 work cards remaining
in the department for assignment, the lowest number within his experience, and that the
average number of such cards was around 15. He reported the situation to Rickman and
told him that he had 2 more employees than was necessary. Rickman, the defense is, accord-
ingly selected for layoff the 2 youngest employees in the department, with the exception of
Pelletier. Nicholson denied while testifying that Portzen had work yet to be done on his
machine when he was put on rework for a short time.
The record shows that in a matter of days after the separation of Portzen and Walker,
Respondent transferred Newell, who Respondent admits was continued on the payroll as a
temporary employee after he had failed to make good on a particular job for which he was
hired, Martinucci, and Hafenan from another department into Portzen's department at side
work and other work. Subsequently it hired two new employees, Mounter and Andrews,
i Walker was named together with Portzen in the charge filed by the Union, but his name
is not included in the complaint
ANCHOR COUPLING CO., INC. 965
instead of recallhi Portzen and Walker. The record seems to substantiate the contention
that at least for a time there was some increase in production in the side-work and hand-
screw department, rather than such a decrease in production as might ordinarily be expected
from a general falling off in overall plant production. Rickman testified, however, that
several of the employees transferred into Portzen's department after he left were only
"loaned" from other departments because of a temporary upsurge of work.
The General Counsel points out that after Portzen's discharge overtime continued to be
done, with the inference that it would not have been continued if work was in fact falling off.
Young testified, however, that it was Respondent's fixed policy, because of a tight labor
market in the vicinity, for skilled employees, to lay off employees during a slack period
and to continue to pay overtime to those remaining, and that hence the continued payment
of overtime is without significance. Respondent further asserts that much of the production
in the department after Portzen left was "made" work consisting of the stock piling of
certain materials so that the,supply of steel would not be affected.
It is difficult for me to judge the relative merits of the parties' contentions as to the effect
of Respondent's overall decrease in business, which I find to be a fact, upon the hand-screw
and side-work department, or to assess its significance in relation to the termination of
Walker and Portzen and the later transfer into the department of other employees. It is not
clear how long these employees remained in the department thereafter, nor is the subse-
quent production situation in the department clear. Although this state of facts perhaps
creates a suspicion that it was not as critical as Respondent contends, I prefer to rely upon
the direct testimony of Rickman and Nicholson that in their judgment the layoff of 2 employees
on September 16 was necessitated by a lack of work in the department. If this was the case,
then because of his relatively short period of employment and lack of experience, Portzen
was logically I of the 2 men to be let go. In making my determination, I, of course, do not
rely upon Rickman's and Nicholson's testimony alone. I am further persuaded by the fact
that Portzen was no more active in the Union, so far as the record reveals, than Ping.
Brown, or Herman, all of whom were seen in Connolly's company and all of whom Re-
spondent retained. In addition, Newell, who was later transferred into Portzen's department,
had expressed to Rickman at least a general interest in union organization.
I find that the General Counsel has not met the burden incumbent upon him of showing by
a preponderance of the credible evidence that Portzen's discharge was motivated by his
interest in the organization of Respondent's employees.
CONCLUSIONS OF LAW
1. Anchor Coupling Co., Inc., a corporation, is and at all times relevant herein was
engaged in commerce within the meaning of Section 2 (6) and (7) of the Act.
2. Lodge No. 140, International Association of Machinists, affiliated with the American
Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act.
3. Respondent has not engaged in any unfair labor practices within the meaning of the Act.
[Recommendations omitted from publication.]
U. S. GOVERNMENT PRINTING OFFICE: 0-1954