Crane Co.

National Labor Relations Board - Board Decisions

Dec 24, 1963

145 N.L.R.B. 587 (N.L.R.B. 1963)

CRANE COMPANY 587
quiring membership in a labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the National Labor Relations Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
All our employees are free to become and remain or to refrain from becoming
or remaining members of the above-named Union or any other union.
CERTIFIED CASTING & ENGINEERING, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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, 500 Book
Building, 1249 Washington Boulevard , Detroit, Michigan, Telephone No. 226-3200,
if they have any question concerning this notice or compliance with its provisions.
Crane Company and United Steelworkers of America , AFL-CIO.
Case No. 96-CA-1441. December 24, 1963
DECISION AND ORDER
On May 7, 1963 , Trial Examiner John C. Fischer issued his Inter-
mediate 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 the attached Intermediate Report. There-
after, the General Counsel and the Charging Party filed exceptions
to the Intermediate Report and supporting briefs.
Pursuant to the provision 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 [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 entire
record in this case , including the Intermediate Report, the exceptions,
and briefs , and hereby adopts the findings, conclusions , and recom-
mendations of the Trial Examiner , only insofar as they are consistent
with the following : 1
The Trial Examiner found that the Respondent's discharges of
Maynard , Box, and Spence on December 14, 1962, were not motivated
by discriminatory considerations . He concluded that the discharges,
the first two of which assertedly were for leadership in a production
'As we cannot say that the Trial Examiner ' s credibility resolutions were clearly
erroneous , we agree with him, for reasons stated in his Intermediate Report , that the
speech of Foreman Spicer of the polishing and buffing department to the employees in the
department on the day preceding the election did not violate Section 8 ( a) (1) of the Act
145 NLRB No. 56.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
slowdown and the latter for falsifying company records by failing
to report work completed, did not violate Section 8(a) (3) and (1)
of the Act because they were for violations of company rules. Ex-
ceptions were taken by the General Counsel and the Charging Union
to these and supporting findings. The General Counsel contends that
Maynard and Box were discharged because they were union leaders,
and that Spence was not discharged for allegedly falsifying company
records but for discriminatory reasons. We find, contrary to the
Trial Examiner, that a preponderance of the evidence , which is de-
scribed below, supports the General Counsel 's position.
The record discloses that in early 1961 , Respondent began the manu-
facture of bathroom fixtures and brass fittings at a new plant at
Jonesboro , Arkansas . An organizing campaign by the International
Association of Machinists , in which Maynard and Box were leaders,
began in late 1961 . Maynard also served as an observer at the Board-
conducted election held July 25 , 1962 , which that union lost. It is
clear from the record herein that Respondent knew the identity of the
leaders in that campaign . About October 1, 1962 , the Charging
Union, hereinafter called the Steelworkers , started organizing Re-
spondent 's employees . Maynard and Box again became leaders in
the campaign , openly distributing authorization cards among polish-
ing and buffing department employees with whom they worked and in
various other plant areas before and after work , during lunch hours,
and on break periods.
Contrary to the Trial Examiner , the record contains uncontroverted
evidence that management had knowledge of the Steelworkers' cam-
paign. Thus, John Spence , who had signed and also assisted in pass-
ing out union cards in both the IAM and the Steelworkers campaigns,
testified that while organizing for the Steelworkers no attempt was
made to hide such activity . According to Spence he personally in-
formed Foreman Ring of the Steelworkers ' drive. In a conversation
in November , he told Ring that he was in favor of the Steelworkers
and intended "to do everything [he] could to help it come in." Ring
indicated that although he had not been in favor of unionization at
the time of the IAM campaign, he did not hold this view with respect
to the Steelworkers ' efforts and would not stand in the way. Ring
testified that he had heard a rumor concerning the Steelworkers cam-
paign but did not remember the conversation referred to by Spence.
He also stated that he had gained knowledge of the Steelworkers'
efforts from someone not employed by Respondent . Spence further
testified, without contradiction, that the foreman of the die-cast de-
partment knew the Steelworkers were organizing and had had conver-
sations on this subject with Spence on several occasions, the last being
no more than a week before Spence was discharged.
CRANE COMPANY 589
On a Friday in October 1962, employees in the polishing and buffing
department engaged in a 20-minute work stoppage during which
Maynard acted as spokesman for the group? After this matter Was
settled, Box and several other employees called a meeting for the
following Saturday at a cafe near the plant for the purpose of desig-
nating a committee and working out a procedure whereby grievances
might be brought to the attention of management. At that meeting
a committee of six was selected, including Box and Maynard, with the
latter chosen as spokesman. Admittedly, Foreman Spicer knew that
this meeting was to take place before it occurred. He also later
learned what happened.
On December 14, 1962, Maynard, Box, and Spence were separately
called into the office of Personnel Manager and Labor Relations Di-
rector John Fogle and, in the presence of Department Foreman Spicer,
were discharged.
John Spence was told by Fogle that they had proof he had been
falsifying company records. When he denied this and requested that
they specify the manner, he was told that they meant he had been
carrying completed work forward from one day to the next without
including it in his production report on the day completed.' Spence
replied this was the first he had heard that the procedure he had been
following was 'against company policy; that "everybody back there
has been doing it," whereupon Fogle stated : "Well, John, this re-
quires discharging. We hate to have to do it." Continuing, Fogle
stated that there was really no need to fire Spence; all they wanted
was to know who were the ringleaders in holding down production.
Spence indicated he did not know what they were talking about;
that this was the first he had heard of it. Fogle explained, then advised
Spence, that they did not have any complaints and were satisfied with
2 Although we do not accept the Trial Examiner's characterization of this incident as
constituting a "sitdown strike ," we nevertheless agree with him that this work stoppage
by employees, as well as formation of the grievance committee, was concerted activity pro-
tected by Section 7 of the Act.
8 At this time each employee was required to turn in a written report at the end of
each day indicating the number of finished pieces he had produced . As noted by the Trial
Examiner, there was considerable confusion in the minds of employees as to what the
work reporting requirements were . Several employees testified that they did not know
they were expected to report more than 100 percent of their production quota. What
was done with the unreported finished work apparently varied among the employees It is
undisputed that those who held over the finished work covered it up or hid it between
boxes, when two shifts were working but when only one shift operated the work was left
beside the machine for the next day Apparently, rather than hold the work over, some
employees turned it in but only reported as completed an amount corresponding to their
quota on that job. Indeed , one employee testified that on an occasion when he had run a
substantial amount over the quota and did not want to place that much work on the side,
he went to Spicer and said he was going to send it all in but was not going to put it all
on his card , and Spicer said , "All right." This appears to be what Spence had done on
the occasion of his discharge , for Spicer testified that he had received the 800 pieces of the
job and Spence had obtained from him a new jot) but the records,for the department showed
that Spence had completed only 300 or 350 pieces so he checked Spence's report and dis-
covered that the completed work had not been recorded.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his work," but that they could not have anyone in the department
restricting production, and again Fogle offered Spence as the alter-
native to his discharge, disclosure of the leaders. Spence repeated
that he did not know, adding that, in any event, he would not in-
form, whereupon he was discharged.
Fogle accused Maynard of telling other employees to hold produc-
tion to 100 percent of quota, but Maynard denied this and cited his
own production in excess of that amount.5 Maynard's request to con-
front his accuser was refused. When asked to disclose who the de-
partment ringleaders were, Maynard asserted he did not know. Spicer
retorted with the argument that if Maynard himself was not one of
the ringleaders, why did the employees push him forward to talk dur-
ing the strike. Maynard stated that if they meant the union leaders,
he knew there was plenty of union activity going on and who the
leaders of that activity were and this he could tell them, adding ex-
pression of a hope that the Union came in. He was told that if this
was his attitude they were going to discharge him, whereupon they
gave him his separation slip and checks and told him to leave.
Spicer escorted Box to Fogle's office where Fogle told Box he was
going to have to let Box go. Box asked why and Fogle stated that
every time something happened Box's and Maynard's names always
appeared and that he, Fogle, was tired of it; that now he had proof
that they were holding down production. When Box asked Fogle
to explain what he meant by this, Fogle refused to do so and gave
Box no opportunity to deny complicity. Box asked whether his work
was all right and Spicer said that he had found nothing wrong with
Box's work. As he was leaving Box stated that he could not under-
stand their position and was going to take the matter up with the
Board whereupon Spicer walked out the door with him stating he,
Spicer, hated to see Box go but there was nothing he could do to help.
Both Spicer and Fogle testified concerning the discharges but neither
contradicted the testimony of the dischargees as to what occurred at
the exit interviews related above. In fact Fogle corroborated that
testimony in important respects. As to Spence, Fogle explained that
he gave Spence a chance to inform in order to develop extenuating
circumstances which would justify not discharging him for breach
of a rule which called for discharge. Fogle also indicated that the
decision to discharge Maynard and Box was made before the exit
interviews: Spicer had talked with him that morning; they had dis-
cussed the whole matter with the plant superintendent and then with
4 As noted by the Trial Examiner, Spence was a fast worker . The record indicates that
when the department average was well below 100 percent , Spence , as a rule , far exceeded
the quota producing as high as 200 percent despite his tendency to visit other departments
for which he had received a written reprimand but which was admittedly not a factor in
his discharge.
5 It appears that both Maynard and Box were efficient producers consistently producing
and reporting in excess of quota and among the highest in the department.
CRANE COMPANY 591
the plant manager who approved the discharge action; he and Spicer
had arranged with the accounting office to prepare the checks; and he
had told Spicer what time to bring the individuals to the office for
discharge. Fogle admitted that they had no proof of the charges of
holding down production but held a suspicion that Box and Maynard
were the leaders based on the fact that their names were mentioned in
connection with other problems Spicer had in his department.
That Spicer's so-called information was, at most, ao more than
suspicion based upon the previously displayed leadership of Maynard
and Box as indicated by Fogle is further supported by Spicer's testi-
mony. He claims he recommended the discharge of Maynard and
Box when he felt that he had proof they were responsible for the
slowdown. He also testified that shortly before these three men were
discharged Bobby Neal was called into Fogle's office where they un-
successfully tried to get him to tell who was holding down produc-
tion. Spicer specifically stated that at that time they did not know
who was responsible; that they only thought certain persons were the
leaders but had no confirmation; and that they also "vaguely" sus-
pected as possible leaders Mangrum and Johnston, "mainly because
of association with one another. They seemed to be together all of
the time. That's the only reason . . . they ate lunch together."'
Spicer claimed that during the pressure for increased efficiency he
suspected there was a deliberate campaign to hold down production.
He was importuned by several employees to discontinue the practice
of posting individual figures of finished production on the bulletin
board.' Spicer stated that in addition to several insinuations he also
was informed that Maynard and Box each had told another employee
to limit his output."
6In this connection , Neal testified that he was called in and interrogated by Fogle and
Spicer as to whether he had any knowledge of who in the department was holding down
production . Showing him a paper with the names of Maynard , Box, Johnston , Mangrum,
and Reynolds ( individuals who had been active in both the IAM and the Steelworkers
campaigns ) listed thereon , Fogle stated that other people had informed him these men had
told employees to slow down production Neal replied this might be true but be had
never heard these men tell anybody to slow down Neal was released upon his promise
to let them know if he heard anything.
It is not clear whether the purpose of this alleged request was to prevent anyone from
pressuring employees to produce less, or to report less as indicated by the Trial Examiner
within a day or two , according to Spicer, employee Green , who shared a ride with him,
reluctantly told Spicer that Pete Box was doing the pressuring and Sam Maynard was
rumored "word of mouth " as doing the same . In his pretrial affidavit Spicer had stated
that Maynard was not mentioned by Green. He explained that what he meant was
Green "could not point his finger directly at Sam Maynard . . . " In any event Spicer
discontinued posting the individual production in mid -November, a month before the
discharges.
8 Spicer placed the incident concerning Box vaguely at "about a year before this," at
which time he called Box and talked with both employees It was mid-July when Maynard
was reported to have told another employee he was running too many parts Spicer said
he spoke to Maynard who denied it and he was left with one man 's word against another.
With respect to these incidents , Spicer also testified that had he felt the charges were true
lie would have discharged the men at the time.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spicer was confronted with the affidavit given the Board agent in
which he stated :
I decided to discharge the men. The decision to discharge them
was based on the background of trouble with the men, Box and
Maynard. Maynard was mentioned by Green as having told
him to slow down production. Maynard and Box were involved
in the sit down strike they had in the department and Maynard
and Box called a meeting of the men where they discussed work-
ing conditions and had a strike vote. This meeting was some-
time in September on the Saturday after we laid off the second
shift. The only reason that I would consider this a factor in dis-
charging them was because they seemed to be the leaders of the
group.
On cross-examination he, in effect, reiterated that their demonstrated
leadership in union activity was the basis for his selection of Maynard
and Box in this situation by explaining the above statement as fol-
lows : ". . . if Sam and Pete could sway the men one way or another
in any given thing that they could sway the men in the production
hold down."
With respect to the alleged slowdown which Maynard and Box
were accused of leading, the record reveals the following situation :
apparently because the plant was not operating up to its production
capacity, Respondent on August 1, 1962, employed a new general
manager. Various types of surveys and studies were immediately
instituted to determine the relative efficiency of each department and
each operation therein as well as means to improve productivity.
Such studies disclosed that the plant , and in particular the polishing
and buffing department in which the three dischargees worked, was
operating at about 50 percent of efficiency , and a program to improve
this situation was commenced immediately . It appears that as a
result of the efforts made, efficiency for the polishing and buffing de-
partment improved to about 75 percent within a week, 97 percent at
the time of the discharges, and 125 percent at the time of the hearing.
After the discharges, the individual employee standards were raised
from 100 percent to 125 percent quota. The existence of any slow-
down is, therefore, strongly controverted by the facts presented, for,
as noted, production and efficiency increased phenomenally during the
period the slowdown supposedly was in effect.
Apparently intended interchangeably, the Respondent's witnesses
used with the label "slowdown" the words production "hold-down"
and "hold-back." The evidence produced with respect to Spence's
discharge indicates that the holding back of production was the fail-
ure to either report or to turn in completed work, and that this was
due to a general misunderstanding of the required procedure, not a
failure to produce the work. Further, the evidence establishes that
CRANE COMPANY 593
the procedures used were not unknown to the foreman and, in fact,
in some instances had his specific approval. As to holding down
production at a time when Respondent was attempting to increase it,
although there is some indication that some employees were not en-
thusiastic about a production push,' there is no evidence that a counter-
endeavor of the type alleged existed, much less that Respondent had
evidence that Maynard and Box were the leaders of such a scheme.
As disclosed by the foregoing evidence, the situation pointed to as
implicating Maynard and Box in any production holddown were, ac-
cording to Spicers own admission, insufficient to establish their com-
plicity and, therefore, did not warrant their discharge at the time
the incidents occurred. The remaining basis of "proof" consisting
solely of "insinuations" by two unidentified men at an unspecified
time, which Maynard denied and which Box was not even given an
opportunity to deny, demonstrates the pretextual nature of their dis-
charges. Thus, it is clear that Maynard and Box were not discharged
for the reasons asserted by the Respondent but were selected be-
cause of the leadership qualities demonstrated in the course of their
union and concerted activity.
With respect to the reasons given for discharging Spence, it is clear
that because there was confusion as to what Respondent wished to have
reported, other employees had accorded the same and similar treat-
ment to Respondent's records; that Respondent had knowledge of
several specific instances thereof; that through Foreman Spicer, Re-
spondent had specifically acquiesced therein; and that other employees
were not even reprimanded for the same so-called breach of Re-
spondent's rules. Instead, after Spence was discharged, Respondent
changed and explained to them the revised reporting procedure.'°
9 Employee Emerson testified he overheard Box ask employee Wilson how many pieces he
was running and comment that this was too much ; that he, Box, was not aiming to run
over 100 percent ; and that "the more you would run the more they would expect you to
run." Employee Wilson testified that neither Maynard nor Box had asked him to hold
down production ; that Box had told him to do what he wanted but Box personally was
not going to try for over 100 percent because "the more we run the more they want," He
denied that there had been any criticism among employees in the department for producing
too much This may establish that Box personally was withholding his best effort from
his job , but he was not discharged for his own work performance.
10 That what Spence did was not inconsistent with the existing practice in the depart-
ment is indicated by testimony of what occurred with respect to the reporting procedure
after Spence ' s discharge. Thus, It appears that Spicer spoke to the employees in the
department and stated that he was not going into the details of why the men were fired
but there might be some confusion over reporting finished and unfinished parts. He was
reported as saying , "Most of you have been carrying work over ," but this would have to
stop He then outlined the new proedure to be followed which included the change to
reporting the time spent on each step of the process and indicating the status of uncom-
pleted work at the end of each day . He also spoke to one employee who had 'been reporting
an even 100 percent quota and commented that this looked like they were just doing
100 percent and then quitting The employee replied this was not the fact, when he
reached the 100 percent for the day he started some for the next day. Spicer said that
"until then they did not say to run on the standard , but from now on we should turn in all
of our parts as we finished on the day that we finished."
734-070-64-vol. 145-39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This disparate treatment accorded Spence vis-a-vis other employees
similarly situated, requires the conclusion that the reason given for
his discharge was not the real reason, and necessitates inquiry into
the motivating force behind the discharge. As noted above, Respond-
ent had knowledge of Spence's views and his supporting role in the
organizing campaign through two of its supervisors. In our view,
Respondent seized upon what at most was a technical violation of a
plant rule, honored by common practice primarily in its breach, as
a cover for its antiunion motive of ridding itself of this union adherent.
However, Respondent apparently also had another more immediate
objective. As demonstrated with respect to Maynard and Box, Re-
spondent was diligently seeking out the leaders of the Steelworkers'
organizing campaign under the guise of investigating a purported
slowdown. The purpose of this search was twofold : to eliminate
such active union adherents from its employ and to interfere with the
exercise by employees of their Section 7 rights by depriving them of
effective leadership.
As was made clear at the exit interview, Respondent was willing to
retain Spence if he would assist it in establishing the pretextual basis
for the discharge of Maynard and Box. It therefore offered to with-
draw Spence's discharge in exchange for evidence to support its false
and pretextual charge against those union leaders. When Spence
refused to be a party to that scheme as threatened he was summarily
discharged for his union activities.
In view of the foregoing, we find, contrary to the Trial Examiner,
that the discharges of Maynard, Box, and Spence on December 14,
1962, were discriminatorily motivated by Respondent's desire to inter-
fere with, restrain, and coerce employees because of their union ac-
tivities, and thus violated Section 8 (a) (3) and (1) of the Act.ll
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.
Having found that the Respondent discriminatorily discharged Sam
Maynard, Jr., P. W. Box, and John Spence, we shall order that it
offer them immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
or other rights and privileges previously enjoyed, and make them
whole for any loss of earnings they may have suffered because of
n See, e.g., N L R.B. v. Great Eastern Color Lithographic Corp., 309 F . 2d 352 (C.A. 2) ;
N.L.R.B. v. Jamestown Sterling Corp, 211 F . 2d 725, 726 (C.A. 2) ; DuBois Chemicals,
Inc., 140 NLRB 103; and Julius Corn and Sheldon Corn, d /b/a Julius Corn and Co., 129
NLRB 1264.
CRANE COMPANY 595
the discrimination against them, by payment to each of them of a
sum of money equal to that which he would normally have earned
as wages from the date of the discharge to the date of the offer of
reinstatement, less net earnings during said period, with backpay
computed on a quarterly basis in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289. Interest at the rate
of 6 percent per annum shall be added to backpay to be computed in
the manner set forth in Isis Plumbing cf Heating Co., 138 NLRB 716.
As the discharge of employees because of their union activities goes
to the very heart of the Act, the commission of similar and other
unfair labor practices by the Respondent may reasonably be antici-
pated in the future. We shall therefore order the Respondent to cease
and desist from in any manner infringing upon the rights guaranteed
to employees in Section 7 of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Crane Company,
Jonesboro, Arkansas, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers of America,
AFL-CIO, or in any other labor organization of its employees, by
discharging employees or by discriminating in any other manner in
regard to hire or tenure of employment or any term or condition
thereof.
(b) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Steelworkers of America,
AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
or other rights and privileges, to employees Sam Maynard, Jr., P. W.
Box, and John Spence, and make each of them whole for any loss
of pay he may have suffered by reason of the Respondent's discrimi-
nation with respect to him, in the manner set forth in the section of
this Decision and Order entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, 'all payroll records, social
security payment records, timecards, personnel records and reports,
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and all other records necessary to analyze the amounts of backpay
due and the rights of employment under the terms of this Decision
and Order.
(c) Post at its plant at Jonesboro, Arkansas, copies of the attached
notice marked "Appendix." 12 Copies of said notice, to be furnished
by the Regional Director for the Twenty-sixth Region, shall, after
being duly signed by an authorized representative of Respondent, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-sixth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein, insofar as it alleges
violations of the Act not found in this Decision and Order, be, and
it hereby is, dismissed.
CHAIRMAN MCCULLOCH, concurring in part and dissenting in part:
I agree with the majority's finding that Respondent unlawfully dis-
charged Maynard and Box, but not with the further finding that Re-
spondent also unlawfully terminated Spence. The majority gives
two reasons for concluding that the discharge of Spence was discrim-
inatorily motivated : (1) Respondent desired to rid itself of a union
adherent and seized on a pretext to justify the discharge; and (2)
Spence refused to cooperate in supporting the false and pretextual
charge against Maynard and Box. As to the first reason, the General
Counsel has not urged this theory before the Board. Moreover,
the evidence fails to show that Spence was a leader in union activities
or in any way comparable in importance to Maynard and Box. His
participation in union activities was at most minimal. No reason is
suggested why Respondent should have discriminatorily singled him
out for discharge. As to the second reason, there is absolutely no
evidence nor proper basis for an inference that in urging Spence
to reveal the names of the leaders in the alleged slowdown movement,
Respondent was guided by a desire to have Spence "finger" Maynard
or Box. In 'the absence of such evidence, the conclusion of the
majority is simply not warranted. Because I believe that the Gen-
eral Counsel has not proved by a preponderance of evidence that Re-
spondent discharged Spence for discriminatory reasons, I would adopt
the Trial Examiner's recommendation that this allegation of the
complaint be dismissed.
12 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order " the words "A
Decree of the United States Court of Appeals , Enforcing an Order."
CRANE COMPANY
APPENDIX
NOTICE TO ALL EMPLOYEES
597
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in United Steelworkers
of America, AFL-CIO, or in any other labor organization of
our employees, by discharging employees or by discriminating in
any other manner in regard to hire or tenure of employment or
any term or condition thereof.
WE WILL OFFER immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, to Sam Maynard,
Jr., P. W. Box, and John Spence, and make each of them whole
for any loss of pay he may have suffered by reason of our dis-
crimination against him.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist United
Steelworkers of America, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
All our employees are free to become or remain or refrain from
becoming or remaining members of the above-named or any other
labor organization.
CRANE COMPANY,
F, mplo yer.
Dated--- ------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify the above-named employees 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.
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, 746 Federal Office Building, 167 North Main Street , Memphis,
Tennessee , Telephone No. 534-3161, if they have any questions con-
cerning this notice or compliance with its provisions.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed by United Steelworkers of America AFL-CIO (herein
called the Union), the General Counsel of the National Labor Relations Board, by
the Regional Director for the Twenty-sixth Region (Memphis, Tennessee), issued
his consolidated complaint dated February 7, 1963, against Crane Company (herein
called the Respondent). In substance the complaint alleged that Respondent had
engaged in conduct proscribed by Section 8(a) (1) and (3) of the National Labor
Relations Act (herein called the Act), and that such conduct affected commerce as
set forth in Section 2(6) and (7) of the Act. Respondent's answer admits some
of the facts pleaded in the complaint, but denies the commission of any unfair
labor practices by Crane Company. Pursuant to appropriate notice, a hearing was
held before Trial Examiner John C. Fischer at Jonesboro, Arkansas, on March 12
and 13, 1963. All parties were represented at and participated in the hearing and
were afforded the right to present evidence, to examine and cross-examine witnesses,
to offer oral argument, and to file briefs.
Upon the entire record in this case, including the admission in the answer and
the stipulations of the parties, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent Crane Company is now, and has been at all times material herein,
an Illinois corporation with a place of business at Jonesboro, Arkansas, where it
is engaged in the manufacture and sale of plumbing brass. During the past 12
months, Respondent , in the course and conduct of its business operations , purchased
and received at its Jonesboro, Arkansas, plant, materials and supplies valued in
excess of $50,000 directly from points outside the State of Arkansas. During the
same period, Respondent manufactured, sold, and shipped from its Jonesboro,
Arkansas, plant, finished products valued in excess of $50,000 directly to points
outside the State of Arkansas. Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Steelworkers Union and International Association of Machinists, AFL-CIO,
are now, and have been at all times material herein, labor organizations within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
At the time of filing of the alleged unfair labor practice charges, December 31,
1962, Respondent Crane Company had been operating a new plant or factory,
known as the plumbing brass division, which manufactured bathroom fixtures and
brass fittings. About 500 workers were employed. The operation virtually started
from scratch with new and inexperienced employees in this field of manufacture.
After about a year and a half, the Jonesboro plant was not operating up to the
production standards prevailing in this competitive industry. Accordingly, a change
in management occurred. The then plant manager, Vitales, was relieved, and
A. C. Harrison supplanted him as general manager about August 1, 1962.
General Manager Harrison testified that the Jonesboro Crane plant was in serious
trouble financially and he was brought here because the incumbent management
was not able to get to the bottom of the problem. Harrison traced the financial
losses, in large part, to employee inefficiencies . Although the inefficiencies were
distributed throughout the plant, his studies and investigations revealed that the
"polishing and buffing" department operated at the lowest level of efficiency. In
terms of productivity, this department Harrison found to be operating at only 50
percent efficiency. At the time of the hearing, however, it was operating at approxi-
mately 125 percent efficiency. (It was in this department that the three alleged
discriminatorily discharged employees, P. W. Box, Sam Maynard, Jr., and John F.
Spence, were working until fired on December 14, 1962.)
CRANE COMPANY 599
Harrison's Survey
Harrison promptly began a plantwide investigation. He described conditions in
the polishing and buffing department as follows:
Well, the polishing and buffing department was actually the department with
the lowest level of efficiency from what I could determine upon coming to the
plant. I used a practice which I had used in industry for many, many years
of taking work samplings to determine what the difficulty was, why the efficiency
was so low and the work samplings that I took indicated just a lack of appli-
cation. People were not doing their work. They were standing around talking
in groups, or two or three individuals together. They were not working, in
some cases, or even at their work station. I found them in various places in
the shop, in the men's room; in fact, out of their department on occasions.
On several occasions I actually went up and asked the people individually if
they were on a break and I always got the answer in the negative and on
occasion I asked them if they thought it was being fair that they were taking
an extra break just as a means of trying to make people realize that they
had a responsibility to be producing . . . . I took this matter up with the
plant superintendent and with the foreman and Mr. Fogle and as the problem
became a little bit more difficult, we weren't making any progress; we weren't
making the progress we were making in the rest of the shop in correcting the
situation, I told them that we would have to get to the bottom of the problem,
if it needed very serious steps to correct it, because it was jeopardizing the jobs
of all of the people in the plant.
Q. (By Counsel FRIERSON.) Sometime in early December information was
brought to you, it has been testified that there was a deliberate effort to hold
down the production in that department. Did you give any instructions con-
cerning-or give any instructions to your foreman on that occasion?
A. I took action in two directions at that time. I asked my industrial
engineering department at that time to go into the department and make indi-
vidual studies of some of the lost time and I also told the foreman and Mr. Fogle
and the superintendent that if worst come to worst we were going to have to
let the entire buffing department go and start from scratch again.
Advent of I.A.M. Union
From the time of inception of the plant early in 1960, until the early summer of
1962 the operation followed the usual course of a new industry. It was necessary
to recruit, staff, and train new personnel. Even as late as the time of the hearing,
Respondent Counsel Frierson stated that the Company has not yet had its full trial
run or its full experience with training persons and getting everything in order to
produce most economically. However, in the late spring or early summer of 1962
the International Association of Machinists Union undertook to unionize the new
plant. Management resisted this effort and at a Board-conducted consent election
the Union was defeated on July 26. Charges were filed by I.A.M. in Case No.
26-CA-1290 but a settlement agreement was entered into between the parties and
signed on July 17 and 19. Pursuant to this settlement agreement, approved by the
Regional Director, the Company agreed not to maintain any rule prohibiting em-
ployees from soliciting on behalf of the Union on company premises during the
nonworking hours. It also agreed and posted a notice that it would not in any other
manner interfere with, restrain, or coerce its employees in the exercise of their
rights guaranteed by Section 7 of the Act. This notice bears the date of August 6,
1962. However, the complaint in the instant case (arising out of a preelection
speech) alleged that the Respondent, by its supervisor and agent, William A. Spicer,
on or about July 25, 1962, threatened its employees with the loss of benefits and
economic reprisals if they selected International Association of Machinists,
AFL-CIO, as their collective-bargaining representative-thus the 8 ( a) (1) allegation
herein.
Foreman Spicer's Version
Supervisor Spicer testified that he spoke to the employees in his department the
morning before the machinists' election. Spicer's accepted testimony in this con-
nection reads:
The purpose of the talk was to inform them that we would be voting the
following day. I wanted to urge each one of them to vote. I told them that
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there would be a team of two men that would come to our department and
indicate it was time to vote at which time they would be given the signal to
shut their machines down and file out of the department and to vote. I told
them that I wanted to answer a question that had been asked me by several
of the employees concerning what would be done if and when the union was
brought in and I told them that up until this time I had no qualified answer
for them and this was the only way I could answer it: That when the union
was voted in and the negotiations were negotiated that they could end up
with more or they could end up with less or they could end up with the same
thing. I said, "Is there any questions?" There were no questions and I said,
"I want to urge you again to go up and vote and let your conscience be your
guide."
Spicer reaffirmed that the above-quoted testimony were the exact words that he
said at that time and that he used no other words. Further, he had been specifically
advised by Counselor Frierson as to the words he should use. He explained that at
a meeting in Fogle's office the afternoon before he talked to the employees, he was so
instructed and he followed with the statement the words spoken were the ones
checked and authorized by Respondent Counsel. Spicer impressed the Trial Ex-
aminer as a sincere, straightforward, and dependable witness. He was a man of
deep religious convictions and one who, in the estimation of the Trial Examiner,
would live up to his oath.
General Counsel's Witnesses
The General Counsel's witnesses attribute statements to Spicer to the effect that
when the Company negotiated with the Union, negotiations would not start from
the wages they were presently getting, but would start at the bottom. So testified
Bobby H. Neal. Witness Sam Maynard, one of the complainants, quoted Spicer as
saying: "If you vote the Union in, you automatically lose all the rights you now
have, all of your benefits you now have." He said, "You will lose them and start
negotiating from the minimum wage."
Witness John Spence, also a complainant, testified that Spicer said "he wanted
to make it clear to us that if we voted the Union in that our pay raises, and fringe
benefits and insurance would be done away with; that we would have to start out
with the base rate and chances were that we would have to pay for our own insur-
ance." However, employee Willis Green testified that Spicer called them together
and said, "'Now boys,' he said, `tomorrow is the day that you vote.' And he says,
`I want you to go vote the way you want to.' He said, `I cannot guarantee you
what you will draw.' He said, `You may draw more or you ,may draw less or you
may draw the same.' " He further testified that he neither heard nor understood
Spicer to say that if the Union was voted in everybody would start back at the mini-
mum wage without any benefits and might have to pay for their own hospitalization.
The Trial Examiner was favorably impressed with the objectivity of, and by the
demeanor of, Green and accepts his version of Spicer's statements anent contract
negotiations if the Union won the election. The Trial Examiner finds no threats
of loss of benefits or economic reprisals in Spicer's remarks, and accordingly will
recommend that the 8(a) (1) allegation involved be dismissed.
The 8(a)(3) Allegations
The complaint alleges discharge of, and refusal to reinstate, P. W. Box, Sam
Maynard, Jr., and John Spence because said employees joined or assisted the Union
or engaged in other protected concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection in violation of Section 8(a) (1) and (3) of
the Act. Respondent's defense was that these employees were discharged for cause
and without antiunion motivation. The burden of Respondent's plea was that
shortly before Box, Maynard, and Spence were discharged, management learned,
through fellow employees of Box and Maynard that there was a deliberate campaign
to hold down production in the polishing and buffing department. Box and Maynard
were leaders responsible for the slowdown. The reason assigned for Spence's dis-
charge was that of falsifying company production records-listed as a cause for
immediate discharge under the plant rules.
The Sitdown Strike
Shortly after the I.A.M. union effort failed, an organizational drive was com-
menced by United Steelworkers. Box and Maynard were the prime movers or
CRANE COMPANY 601
leaders in this drive. The record supports the fact that management had no knowl-
edge of the Steelworkers' campaign nor did it know that Box or Maynard were in-
volved. There are, however, two incidents, in the nature of concerted activity, for
which activities, if the Company had discharged Box, Maynard, and Spence, it may
have been liable under the Act.
The first incident involved a situation which occurred when the plant maintenance
department started to board up the windows and ventilators preparatory to the onset
of cold weather. It appears that the men had just returned from a "break" and
observed the maintenance carpenter in the act of nailing wooden coverings over the
ventilators. A petition, directed to Spicer, was drawn up forthwith and circulated
among the employees, and was signed by 25 or more. In the words of General
Counsel's witness Neal, the petition protested the closing of the ventilators and
recited "you men all know how important fresh air is to the polishers and buffers."
Neal narrated: The men worked about an hour, went to lunch, and upon their
return, seeing three of the windows closed and a fourth window in the process of
being closed, all but two of the men failed to start their machines and return to
work-and "everyone just sat down until they could get the windows unbarricaded."
Neal testified that Foreman Spicer came down from upstairs and stopped in front
of the department asking who was the speaker for the bunch. He recited that no
one answered and finally Maynard said, "If no one else don't want to talk, I will."
After a short discussion with Maynard, Spicer called the fellows together in a group
and told them to go back to work and he would see that the windows would be
opened up.
Spicer's testimony in this connection is as follows:
The second shift supervisor in the assembly department had asked the plant
engineer if he would close the windows because it was beginning to get cool
in the plant and he started a man on the project and the following morning he
carried the project on through and he started putting windows in our depart-
ment, and three or four men came to me and asked me if they had to be closed
and I said I didn't think they did, but I would find out and as I recall, there
was a petition that came around to the effect that the men did not want the
windows closed. I told the men on the end of the line to pass the word around
that I would do all I could to get the windows open and I left the department
to look for Mr. Willers, who is sometimes hard to find. I called his office-
He is our plant engineer. He was not in his office and I took a tour around
the plant and did not find him and I came back to the department and told
the men on the head of the line again that I could not find Mr. Willers, that
I would continue to look for him and to tell the boys that I was working on it.
I didn't find him. I got word that he was out of the plant on business. So, I
went to the plant superintendent, Mr. Stromsoe, and I told him all the details
and he said for me to go back to the department and tell Dave Weathers, the
man who was putting the windows in.... And I told Dave that Clyde had
told me to leave the windows out and to take the windows out that he had
already put in and Dave's answer to me was that he worked for Mr. Willers
and he had been told to put the windows in and he would have to continue
to put them in until Mr Willers told him to take them out. So, I again
went to the man on the head of the line and said that there was a misunder-
standing, I am still working on it and I will get an answer for you as quick
as I can. I looked for Mr Willers again, hoping that I could find him and
I was 20 minutes late getting up to lunch It was 20 minutes until 12.00
when I finally got to lunch I ate my lunch in 15 minutes and hurried back
down to the department and when I walked into the department the machines
were all off and the men were sitting at the machines idle. I immediately
knew-thought that I knew why, and I walked to the head of the second line
and I just said loud enough for them to hear me, "Who is going to speak for
this group," and I took a step or two down the line and one or two men
pointed to Sam Maynard and Sam started toward me and as T started toward
him Gene Vincent walked out in front of me and I met them both at once
and they both said in effect that all of the boys had decided that they were
not going to work until the windows were taken out and I said-T called the
men to me then. I just motioned for them to come to me and I said. "T would
advise you to go back to work, because T am working on it and I will have
an answer for you in five or ten minutes." They all went back to work and
I again went up to Mr. Stromsoe, who was having lunch with Mr. Fogle and
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I told them that there was a very unpleasant situation that had happened and
that I had to have an answer and Mr. Stromsoe told me very emphatically to
go downstairs and take the windows out myself under his orders and I went
downstairs and started to tearing them out of the wall with my bare hands,
because I had no tools, at which time Dave Weathers came over with his
tools and said , "Bill, if I've caused you this much trouble, I will help you
take them out," which he did and they were taken out.
Q. (By Counsel FRIERSON.) Did the fact that fellow employees designated
Maynard or the fact that Maynard did talk to you at that time have any-
was that any reason for his later termination?
A. No, sir. No, sir.
Rationale on Sitdown and Grievance Activities
The Trial Examiner accepts, demonstrable as a fact, Spicer 's statement that
Maynard was not discharged because his fellow employees designated him as spokes-
man or because he was a leader in union activity . Nor was his subsequent participa-
tion as a member of grievance committee which a dozen of the workers met and
organized for the purpose of handling such situations as the ventilator incident.
The same is true with reference to the discharge of Box These two men were
discharged , as will be developed more fully hereinafter , because they engaged in
and were in a great measure responsible for a deliberate campaign to hold down
production . With reference to the "sitdown " of the crew of buffers and polishers,
the law is well settled that employees who walk off the job en masse because of
unpleasant working conditions are engaged in a concerted activity for mutual aid
and protection within the meaning of Section 7 of the Act. N.L.R.B. v. Washington
Aluminum Company, Inc., 370 U.S. 9. The law is equally well settled that the
formation of an employee grievance committee is a protected concerted activity.
As stated above, neither Maynard nor Box suffered discriminatory treatment or
discharge for engaging in such protected activities.
Cause of the Discharges
If the men were having difficulty in adjusting to plant conditions and production
requirements in this comparatively new industry , certainly the supervisory person-
nel encountered their share of problems upon the arrival of the new general manager,
Harrison . Particularly was this true with Spicer and Assistant Supervisor Amaul
Ring because of the obvious low production of their department . As heretofore
indicated , Harrison and his staff of technicians and accountants demonstrated that
something was radically wrong in production . Accordingly , in the vernacular, he
"put the heat on" the foreman . At this time information came to Spicer that there
was a deliberate campaign by some persons to hold down the amount of production-
Box and Maynard were the leaders . For some time Spicer had suspicioned Maynard
and Box as being responsible , but he felt that he did not have sufficient proof based
upon previous information to take action . Now, Spicer reported that fact to Plant
Superintendent Fogle. Fogle was in charge of labor relations . Spicer's credited testi-
mony in this connection is as follows:
I went to Mr. Fogle because I figured it was a labor relations problem. I
went directly to Mr. Fogle with tears in my eyes practically , because outside of
my department there is two things in this world that mean more to me than
my department and that's Jesus Christ and my family, and I went to Roy with
tears in my eyes and I said, "Roy, I've got the ultimatum. My department is
low. My hands are tied behind me because somebody is tying them and I can't
do any more than I am doing now and I 've got to have help from somebody
else." He went to Mr. Harrison with the problem and the answer came back
to me from Mr. Harrison, "You find out who it is and I don't give a damn
who it is, if it is the whole department they are going to all go," and that's
the answer that came back to me from Mr. Harrison. . . . I had questioned
several men trying to have them pinpoint or to name names. Several of the
men were reluctant to say exactly who it was. One man in particular said it
was Pete Box. One man said that he had been approached by a man that
had sent a message by Sam Maynard and several insinuations that that was who
it was. . . . They were reluctant because of the fact that they had to work
in the department with the men . They didn't want to put themselves on a spot
CRANE COMPANY 603
with the men in question or their fellow employees and they seemed a little
afraid.
Spicer, concluding that he had sufficient proof that Box and Maynard were re-
sponsible for causing the slowdown, reported the matter and recommended the dis-
charges. Spicer had previously confronted Maynard and Box and queried them as
to their connection with the slowdown. Both of them denied complicity.
Significantly, both Box and Maynard produced at the rate of 100 percent or better,
as did Spence who was discharged for "falsifying company records."
There is considerable testimony in the record with reference to the method of
reporting production by employees. There is evidence that there may have been
confusion in the minds of some of the employees. Suffice to say, everyone knew
that it was a company rule to make a written report of production of finished prod-
ucts. In the case of unfinished pieces it was only necessary to report the time spent
on a job, but this did not obtain in reporting finished pieces. Some of the employees
engaged in the practice of surreptitiously reporting only a given number of finished
pieces at the end of a shift, while they hid behind machines the remainder of the
finished fittings, or otherwise covered them up out of sight of the next shift. The
remaining parts were reported and counted as the following day's production. Some
of the employees reported their full production. Production of finished pieces was
regularly posted on the bulletin board where all might observe the production of
any individual. Box and Maynard took to task certain of the employees who were
factually reporting their finished production. Certain of these employees came to
Spicer and importuned him to discontinue the practice of posting figures of finished
production. Their assigned reason was that some of the fellows would "get on them"
for running too many pieces. The persons complained of were Maynard and Box.
Spicer confronted Maynard and Box with this charge, but they denied that they
had urged others to hold down production, and they cited their own production
records of 100 percent. However, management eventually found the charge to be
true and discharged both of them for violating the plant rule of deliberately restrict,
ing output by telling other employees to hold down production. In so doing,
management acted within its rights.
Spence was discharged for falsifying company records by reporting less produc-
tion than he had made. Spence admitted that he had not reported his full produc-
tion , but offered the excuse that he did not know that it was contrary to the company
rule and punishable by discharge for the first offense. Spence, a fast worker, had
been warned about being away from his machine and loafing in other departments.
His attitude was that as long as he completed 100 percent there was nothing the
Company could do about it. He was discharged because of holding back and not
reporting finished production as required by company rules-a proper exercise of
a prerogative of management.
Conclusion
In conclusion, the record clearly establishes that Maynard, Box, and Spence were
discharged for violation of posted company rules and not because of their union
activities. Accordingly, it is found that the General Counsel has not established
his burden of proof by the preponderance of the credible evidence, and it will be
recommended that the 8 (a) (3) and (1) counts in the complaint be dismissed.
CONCLUSIONS OF LAw
1. The operations of Respondent Crane Company affect commerce within the
meaning of Section 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO, and International Association of
Machinists, AFL-CIO, are labor organizations within the meaning of Section 5 of
the Act.
3. Respondent has not engaged in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) of the Act.
RECOMMENDATION
In view of the foregoing findings of fact and conclusions of law, it is recom-
mended that the complaint be dismissed in its entirety.