D-N-X Engine Corp.

National Labor Relations Board - Board Decisions

Jul 28, 1944

57 N.L.R.B. 740 (N.L.R.B. 1944)

In the Matter" of, D-N-X' ENGIxE^`CA RPbRATION 'and ieHITED Au'ro-
MOBILE, -- AIRCRAFT AND AGRICIIUrUBAL' IMPLEMENT WORKERS OF
AMERICA , C. I. O.
Case No. 3-C-673.-Decided, July 28, 194
DECISION
AND
ORDER '
Upon a complaint issued pursuant to charges filed by United Auto-
mobile, Aircraft and Agricultural Implement Workers of America,
affiliated with.the Congress-of-Industrial Organizations', -herein called:.
the Union, against D-N-X Engine Corporation, Buffalo , New York,,
herein called the respondent, a hearing was held before a Trial Exam-
iner in Buffalo, New York; from December 29, 1943, to January 4; 1944,
in which the Board and the respondent participated by their repre-
sentatives. The Board has reviewed the Trial Examiner 's rulings on
motions and on,objections to the admission of evidence and finds that
no prejudicial error was committed. The rulings are hereby, affirmed.
On March 9,1194:41 the Trial- Examiner issued his Intermediate
Report, a copy of which is attached hereto, in-which he found that
the respondent had not engaged in the unfair labor practices alleged
in the complaint. Thereafter, the Union and counsel for the Board
filed exceptions to the Intermediate Report, counsel for the Board
filed a brief in support of his exceptions, and the respondent filed a
reply brief.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner.
While the circumstances surrounding the transfers and discharges
of the'employees involved herein, particularly the discharge of Cislo,
are suspicious, we feel constrained to agree with the Trial Examiner
that the record falls short of establishing that such transfers and
discharges were discriminatory.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
57 N. L. R. B., No. 125. -
740
N
D-N-X ENGINE 'CORPORATION
. 741
Board, hereby orders that the complaint herein against D-N-X En-
gine Corporation, Buffalo , New York, be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr. Milton A. Ninon, for the Board.
Mr. D. W: Raley, 'of Canton, Ohio, for, the respondent.
STATEMENT OF THE CASE
J
Upon an amended charge duly filed on November 26, 1943, by United Auto-
mobile, Aircraft, and Agricultural Implement Workers of America, affiliated
with the Congress of Industrial Organizations , herein called the Union, the
National Labor Relations Board, herein called the Board , by its Regional
Director for the Third Region (Buffalo, New York ), issued its complaint, dated
November 26, 1943 against D-N-X Engine Corporation , herein called the re-
spondent , alleging that the respondent had engaged in and was engaging in
unfair labor practices within the meaning of,Section 8 (1) and (3) and Sec-
tion 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat . 449, herein
called the Act.
With respect to the alleged unfair labor practices the complaint as amended
at the - hearing s - in'. substance states .-' tliat . the.,respondent : ( 1) discriminated
against five named persons; in regard to the hire, tenure , terms, and conditions
of their employment, thereby discouraging membership in the Union; (2)
through certain [named '] officers, 'agents, and servants , on or about July 19,
1943, and thereafter , ( a), caused or permitted the issuance of warnings , repri-
mands, and threats to its emp , oyees because of their concerted activities, and
.(b) caused and permitted its foremen ; supervisory employees , and guards to
engage in constant surveillance over its employees because of their concerted
activities ; and (3 ) by the foregoing acts has discouraged membership in the
Union and interfered with, restrained , and coerced its employees in the exer-
cise of the rights guaranteed them in Section 7 of the Act. The respondent
in its amended answer dated December 30, 1943, admits certain facts concerning
commerce but denies that it has engaged in any unfair labor practices.
Pursuant to notice a hearing was held at Buffalo, New York, on December
29, 30, and 31, 1943, and January 1 , 3, and 4, 1944 , before the undersigned Trial
Examiner,, James C., Batten, duly-designated by the Chief Trial Examiner.. The
Board and the .respondent were represented by counsel and participated in the
hearing. All parties were afforded full opportunity to be heard , to examine,
and cross-examine witnesses , and to introduce evidence bearing on 'the issues.
At the opening of the hearing, the undersigned denied the motions 3f the
respondent to strike and withdraw from the consideration of the Board the
amended complaint and in the alternative certain portions thereof. At the close
of the Board 's direct testimony , the undersigned reserved decision upon its
motion to conform the pleadings to the proof and requested that the motion be
renewed at the close of the hearing. Also , at this time , the respondent moved to
dismiss the amended complaint and in the event that this motion was denied,
I At the opening of the hearing the undersigned , without objection , granted the Board's
motion to amend its complaint and thereafter granted the motion of the respondent for
leave to file an amended answer.
I The details of the respondent 's alleged discriminatory treatment of the five named
persons are set forth in Section III C hereof.
8 At the commencement of the hearing Board 's counsel at the request of the undersigned,
furnished to the respondent the names of these ofcers , agents and servants.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that certain paragraphs thereof be dismissed. The undersigned denied the
motions. At the close' of the hearing,, the undersigned reserved decision upon
the respondent's renewal of these motions. - The motions are hereinafter- disposed
of by the undersigned's recommendation that the complaint be dismissed. Also
at the close of the hearing the undersigned, without objection, granted the Board's
motion to conform the pleadings to the proof as to minor details.
The Board and the respondent participated in oral argument at the conclusion
of the taking of testimony. Briefs were filed by the Board and the respondent.
From the entire record thus made and from the undersigned's observation of
the witnesses, the undersigned makes in addition to the above the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
D-N-X' Engine Corporation is an Ohio corporation, with its plant located in
Buffalo, New -York, where it is engaged exclusively in the manufacture of Diesel
engines for the United States Navy. Raw materials to the value of approxi-
mately $135,948.47 were purchased during the period April 15, to- November 30,
1943, of which approximately 100 percent represents shipments to the respond-
ent's Buffalo plant from points without the State of New York. The sale of
'manufactured products during the same period amounted in value to approxi-
mately $3,424,330.70, of which approximately 42 percent represents shipments
to points outside the State of New York.
For the purpose of this proceeding the,respondeht admits that it is engaged in
interstate commerce within the meaning of Section, 2 (6) of the Act.4
II. THE ORGANIZATION. INVOLVED
United Automobile, Aircraft, and Agricultural' Implement Workers of America,,
affiliated with the Congress of Industrial Organizations, is a labor organization
admitting to membership employees of the respondent.
IH. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introductory statement
The respondent was licensed to do business in the State of New. York on -April
25, 1942. It was formed for the purpose of manufacturing Diesel engines for
the United States Navy. The Navy Department has supplied the plant equip-
ment with which to do the work and the funds with which to operate the business:
The respondent is not engaged in a commercial business,bilt acts in the capacity
of a manager for,the Navy Department;under-the,termsof--a`,'restricted contract."
Under its contract with the Navy Department, the respondent must manufac-
ture engines solely for the Navy Department. The contract also provides for
the building of engines of the "landing craft" type. This type of work has for
several months carried an "over-riding" priority.
The plant in Buffalo, New York, occupies 406,000 square feet of floor space,
this being a substantial part of the former Ford Motor Company plant. The
respondent and the Navy are joint lessees and under the terms of the lease they
are required to protect and maintain the entire property. The respondent took
possession of the property on or about May 1, 1942, and the production of engines
started in April 1943.
4 The Endings in this section are based upon a stipulation of counsel.
D-,N-X ENGINE CORPORATION 743
The normal operations of the respondent's plant required the recruiting' of a'
working force-foremen, production andmaintenance employees, and guards-of
approximately 300 employees. Od April 4,' 1943, when production started, the
respondent had 97 employees and not until August was the required complement
of employees secured. The increase of the number of women employees from 14,
for the week 'ending July 5, to 64 for the week ending August 12, was an im-
portant factor in meeting the manpower requirements of the plant. Buffalo, for
some time prior 'to the commencement of production in the respondent's plant,
had been a critical manpower area, with a shortage of skilled employees, -even
before the respondent started operations. Under such conditions it became neces-
sary for the „ respondent, to, recruit. a,working force from those who were either
employed in non-essential industries or had never before been employed as indus-
trial workers.' In addition to the difficulty of obtaining employees, was the
equally important problem of. training that,personnel and establishing a co-
ordinated organization, while at the same time operating as a going concern.
In this instance there is no history of collective bargaining by the parties or
concerted activity on the part of the employees, before the events at issue in
these proceedings, and consequently no background evidence to support either
the Board's allegations of unfair labor practices or the respondent's denial
thereof. The first indication of the employees' interest in concerted activities
occurred on or about the first week in July 1943, when the employees in the
snagging (grinding) department became dissatisfied with their rate of pay and
the lack,of a, proper blower, system to ,remove ,the, dust, paused. by. the, grinding
operations. At the request of Friend, foreman of that department; Personnel
Manager Malone assembled the employees of the snagging-department and told
them that the respondent was paying more than the prevailing rate for that
type of work and that the respondent had ordered the necessary equipment to
remove the dust from the department. On Monday, July 19, the Union, with the
assistance of several of the respondent's employees started a membership cam-
paign among the employees in the plant. On October 12, 1943, the Board, after
an election, certified the Union as the representative of the respondent's em-
ployees for the purposes of collective bargaining. Subsequent to the, certification
the respondent and the Union have had several bargaining conferences. The
record does not disclose the progress which has been made on these negotiations.
B. The alleged discriminatory transfers and discharges ; other alleged acts of
interference, restraint, and coercion
1. The issues ; contentions of parties -
The amended complaint alleges that the respondent, in the operation pf,itsjplant
in Buffalo;°New='York; discriminated `against certain" of, its employees, through
transfer and discharge, when it: (a) on July 20 terminated the employment of
Leonard Cislo; (b) on July 23, 1943, transferred Albert Nappo and thereafter on
July 27, terminated his employment; (c) on October 30, 1943, terminated the em-
ployment of Daniel Maulucci; (d) on October 26, 1943, transferred Lillian Ortel
and thereafter on November 20, terminated her employment and (e) on October
12, 1943, terminated the employment of William Friend, a foreman, for the reason
that he refused to participate in a pattern of anti-union activities carried on by
the respondent. The amended complaint also alleges that the respondent has
issued warnings, reprimands, and threats to its employees and maintained con-
stant surveillance over them; because of their union activities.
1744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board contends that the respondent , from on or about July 1, 1943," when
the snagging department employees concertedly made demands for wage ad-
justments and improved working conditions ; engaged in a pattern of anti-union
activity through surveillance of the employees and interference with their
rights to self-organization , particularly in the snagging department , where the
Union activities originated . As a part of this pattern, the Board contends, the
discharges of five named employees between . July 20 and November 28, includ-
ing a foreman who refused to assist the respondent in carrying out its pattern,
were all designed to interfere with the employees ' rights to self-organization and
collective bargaining . The respondent asserts that there was no plan or pattern
to interfere with the union activity of its employees or their efforts to promote
self-organization . Further the respondent , asserts that this is evident from its
indifferent attitude toward the Union's activities and from the transfer and
discharge of certain employees for reasons wholly unrelated to their'concerted
or Union efforts.
2. The alleged discriminatory transfers and discharges
The cases of the employees alleged to have received discriminatory treatment
from the respondent will be considered by taking up those of the non-super-
.visory employees in the following order: Leonard Cislo, Albert Nappo, Daniel
Maulucci and Lillian Ortel, and then the discharge of William Friend, although
his termination of employment preceded that of Daniel Maulucci. Before so
proceeding however, the undersigned will consider certain evidence' which, al-
though general in character, has a bearing upon the disposition of the issues
and contentions set forth above. -
The respondent in the establishment of a new plant of the type here-involved
was in the peculiar position of attempting to 'organize and produce at the same
time. There were no definite rules of conduct for the control and discipline of
the'employees, making it necessary froth time to titre to change rules and es-
tablish new ones as production progressed. There is no evidence to Indicate
that the treatment 'accorded the respondent's employees, before and after the
,organizational efforts of the Union, was different in any respect. - It is clear
from the record that since' the start of productive operations in April to the time
of the hearing herein, the respondent was, presented with problems such as
employees' roaming about the, plant, undue loafing in the wash rooms and irregu-
.1ar attendance, which retarded materially the production of Diesel engines.
This condition existed before and' after the employees evidenced any inter-
est in concerted or union activities and justified the respondent in using reason-
able and non-discriminatory methods to control these irresponsible practices on
the 'part of the employees. However, there is no evidence to show that 'any
steps taken by the respondent to correct this situation were either In the !first
instance designed to deny to the employees their right to self organization, or
thereafter were discriminatorily applied.' There is no, credible evidence in the
record of any supervisory employee, foreman or representative of 'the manage-
ment questioning the employees concerning their union membership or their
,'activities, or warning them in any way that such activities might result in
adverse action by the respondent. There is totally lacking any background upon
which to base a finding of a design to thwart the desire of the employees. On
the contrary, employees were hired without regard to their previous union affilia=
'The events and incidents , hereinafter referred to occurred in 1943; unless otherwise
indicated.
'-- 'D 'X ENGINE , CORPORATION 745
tion, in some instances with knowledge on the part of the respondent that they
had been active in the Union here involved.
It is contended by counsel for the Board that the respondent issued warnings,
reprimands And threats to its employees and maintained constant surveillance
over them , and thereby violated Section 8 (1) of the Act. The record is barren
of any facts to support this contention. The testimony offeredito support this
,contention was directed principally to the activities of the plant protective
force. The plant protective force at all times material herein was not increased,
nor were the assignments or stations of the guards in any way changed. Fur-
thermore it is undisputed that at no time were the guards given any instruc-
tions by any representative of the management that they were to spy upon or
in any way interest themselves in the concerted or Union activities of the em-
ployees. The guards were at all times in uniform and were known to be a
part of the plant protective force wherever they might 1 appear in the plant.
The only incident testified to by the Board 's witnesses to support an allega-
tion of surveillance was when a new guard stood in the doorway leading into
the snagging department for a short period of time. When -this was called to
the attention of the sergeant then on duty , he immediately instructed the guard
that it was not proper to stand in any one place in the plant but to walk his
station regularly . There is some further testimony that on a few occasions
guards have cautioned employees about spending too' much time in the wash
room or loitering in parts of the plant where their duties did not require. them
to be. , It is clear, however, that none of these activities were in any' way con-
-nected with the organizational activities of the employees . Furthermore the
guards made no reports to the respondent even in those instances where they
cautioned or warned employees about roaming or loitering in the plant., There
is no evidence in the record to support an independent 8 (1) allegation that
the respondent issued warnings , reprimands and threats to its employees unless
it is the , testimony of Albert Nappo,' one' of the alleged discriminatory dis-
chargees , when he testified that both the superintendent of the maintenance de-
partment and a set-up man in that department advised him that Union activities
in the maintenance department were taboo . For reasons later discussed in
connection with the discharge of Nappo, the undersigned does not credit his
testimony with respect to these warnings . The undersigned is particularly im-
pressed by the fact that the testimony concerning these incidents is the only
evidence offered by the Board of any statements by the respondent 's representa-
tives that might be construed as interference with the rights of the employees
to self-organization.
The sequence of events and the methods used by the respondent to improve
production in the plant have none of the usual , earmarks of anti-union activity.
On the -other hand, the evidence clearly establishes that the respondent 's course
of conduct after the advent of the Union was not designed or calculated to
circumvent the Act by discouraging organizational activities in any way.
It is the opinion of the undersigned that the evidence fails to support the Board's
contention that the respondent engaged in a pattern of anti -union activities
designed for the purpose of denying to, its employees their rights under the Act.
Further, the undersigned is convinced that a consideration of the circumstances
surrounding the unrelated and non-discriminatory transfer and discharge of the
above named employees , the details of which are hereinafter related , furnishes
additional proof that the respondent did not follow a pattern designed to deny
to its employees the benefits of the Act.
t
746, DECISIONS, OF NATIONAL LABOR.-RELATIONS BOARD -
3. The'alleged discriminatory discharge of Leonard Cislo
Cislo was employed by the respondent on June 7, 1943, and from then until
July 20, served as an inspector in the receiving department. Cislo, prior" to his
employment with the respondent, had worked for several years in the Buffalo
plant,of the Ford Motor Company, a part of which time Malone, the respondent's
personnel manager was employed by that Company, as its personnel manager.
When Malone hired Cislo for employnieiit^in the respdndent's plant, lie was aware
of the fact that he had been an active member of the Union Cislo, while work-
ing for the respondent, retained his membership in his local. He was an ef-
ficient and competent employee.
The respondent contends that Cislo was discharged for the falsification of his
employment application. The facts as testified to by Personnel Manager Malone
and Superintendent Foss are not in dispute and are here briefly summarized :
The form and content of the employment application form used by the respondent
was prepared in accordance with requirements of the Second Service Command
of the Army. The form contained a question "Have you ever been arrested for
-other than traffic violations?" Sometime prior to the time Cislo started work
in the respondent's plant he filed with its 'employment office the required ap-
plication form, but when he reported for work on June 7, the. form had. been mis-
placeWan&he-tlien fil'e'd anather'form. In both `instaiSces Cislo's answer to the
question, "Have you ever been arrested for other than traffic violations ," was in
the negative.
The respondent was required by the Second Service Command to investigate all
applicants for employment, but in many instances the investigations were not
-completed until after the applicant had been employed. In the case of Cislp it
was not until about July 19 that Malone became aware of the fact that Cislo
bad several years prior to his employment with the respondent been found guilty -
of petty larceny in a juvenile court proceeding. This being the first instance that
had come to.the attention of the respondent, where an applicant had falsified an
application for employment, Malone phoned the office of the Second Service Com-
mand and discussed the problem with that office. Malone was advised by that
office that falsification of an employment application had been the basis for dis-
charge in other,plants in that area, but that it was a problem to be disposed of by
the respondent. Malone then talked with Superintendent Foss concerning -what
if any action should be taken with ,re§pect"to `Cisl`o;`and they decided that his
employment should be terminated.
On July 20„ Cislo, when he was called in the office, in the presence of Malone -
and Foss, admitted that his answers on the applications were not true and that he
bad been arrested for other than a traffic violation. During the conversation
'Cislo asked that the incorrect employment application forms be destroyed and that
he be permitted to make out another one reflecting the true facts. Malone refused
this'request of Cislo. Cislo was then discharged and received a check for his
wages e
The following morning, July 21, Miller, an -International Representative of the
C. I. O. phoned Malone and inquired about the discharge of Cislo. Malone re-
fused to consider Miller's request that Cislo be reinstated. In the course of the
conversation Malone told Miller that Cislo had been discharged because of falsi-
fication of an employment application. Miller then sdggested that the applica-
tion on file be torn up and Cislo be permitted to make out a new one. Malone'
replied that this could not be done. Miller, during this conversation, told Malone,
6 The respondent's "Pay Off Slip" dated July 20, and signed by Foss, discloses that Cislo
''as discharged because of "misrepresentation on application."
D-N-X ENGINE CORPORATION 747
}You know that we are putting on an organizational drive at your plant." This
was,the,first knowledge which Malone had that any union was organizing in the
plant.
The undersigned now turns to a consideration of the Board's contention that
Cislo was discharged because of his Union activities. Cislo testified that he was
not active in the organizational campaign of the Union which started a few days
before his discharge,on,July 20. He did, however, at the request of Maulucci, an
employee in the snagging department, take a number of Union application cards
and within two days, obtained the signatures of approximately 30 employees.
Cislo further testified that his foreman, Kehr, knew a union card when he saw
one, but that he (Cislo) could not say that Kehr saw the cards either in-his pocket
or on his work bench or observed him passing out the cards to the employees. He
also testified that up to the time of his discharge he did not wear a union button
nor did.he participate in any union activities during working hours.
While the discharge of Cislo. an employee with a good work record, for the
falsification of his employment records, in the opinion of the undersigned seems
to be, under these circumstances, a rather harsh method of punishment, the choice
of the punishment is a prerogative of the respondent and such harsh treatment
does not establish that the discharge was induced by a discriminatory motive.
The evidence is clear that Cislo falsified, his employment application in a matter
that to the respondent appeared to be important. Moreover, Cislo was known to
be"a Union member when lie was employed by the respondent and his Union ac-
tivities do not appear to have been so conspicuous as to justify an inference that
respondent had knowledge of such activities.
From the foregoing, it is found that Cislo was discharged for cause as a result
of the falsification of his employment application and that his membership in or
activities on behalf of the Union had no relation to or in any manner affected his
discharge.
4. The alleged discriminatory transfer and discharge of Albert Nappo
Nappo was employed by the respondent on April 22, and worked in the
snagging department as a-grinder until July 22, when he was transferred to the
maintenance department. Prior to his employment with the respondent Nappo
drove a taxi in Buffalo and he continued- to do so after starting work for the
respondent, several evenings each week, especially during' the week ends. On
July 28, after an absenceof 2 days,Nappo, was discharged. With 'respect- to
Nappo two issues - are- presented;; whether or not his transfer on July 22 and
thereafter his discharge on July 28, were induced by his Union activities, or by
reasons unrelated thereto. - -
The testimony of Nappo as to his Union activities, if credited, provides a
foundation which possibly would support an inference that the respondent in
transferring and thereafter discharging him was motivated by such reasons.
The undersigned, however; cannot give any credence to Nappo's testimony. It
was contradictory and in most respects unsupported by the testimony of his
fellow employees.` It 4s unnecessary here to particularize the testimony of
The facts stated herein concerning the transfer and discharge of Nappo are based
principally upon the credible testimony of Malone and Hart*,Nig, maintenance superin-
tendent. The undersigned is unimpressed by the testimony of Nappo or that of his father
Joseph Nappo. Appraising their testimony in the light of contradictions and implausibilities
found throughout especially in their recital of alleged notices given the respondent, during
Nappo's absences, the undersigned is fully persuaded of its untrustworthy character.
There is substantially more confusion as to details in their testimony than is common in
the stories of trustworthy and reliable witnesses. Nappo, when filling out an application
for employment with the respondent, answered in the negative to a question "Have you
ever-'been arrested-for Jother'than a traffic-regulation." The information- that Nappo-bad
748 DECISIONS' OF" NATIONAL' LABO13,' RELATIONS BOARD
Nappo, because assuming arguendo that the respondent knew that`he was, In
the early part of July,- a leader in the concerted, activities in -the snagging
department and later active in the organization of the Union, the fact remains
that he initiated the transfer' and then created the situation which resulted
in his discharge. - '
At the time Malone spoke to the employees of the snagging department in
the early part of July, Nappo requested Malone to transfer him to the green
assembly department. Malone replied that if an opportunity presented itself
the transfer would be considered. In the meantime, the respondent was mak-
ing an analysis of the operations in the plant for the purpose,of replacing as
many men-as possible with women workers and had determined' that certain
of the work being done in the snagging department could be done by women.
Nappo was working in that department on a light job that could be readily'
performed by a woman. Shortly prior to July 21, Malone had a request from
Hartwig, maintenance superintendent, for some additional help in the main-
tenance department. Malone advised Hartwig that Nappo, an employee in
the snagging department, had requested a transfer and that on the following
day, July 21, Nappo would be transferred to the maintenance department.'
July 21, Nappo did not report for work and, in accordance with respondent's
usual custom in the case of absence, Nappo's time card' was removed from the
time rack. On the morning- of July 22, when Nappo reported for work and
found that his time card was out, he reported to Malone. Malone inquired
of Nappo why he had taken off the day before. Nappo replied, "I had business
to take care of." Malone then pointed out to Nappo that it wasimost essential
that he notify the respondent when it was necessary to absent himself from
the plant. Nappo agreed that in the future he would do so: Malone then
transferred Nappo to the maintenance department as a millwright helper.
Nappo worked on Thursday, Friday and Saturday, July 22, 23, and 24, and
was absent again on July 26 and 27. Again Nappo's time card was pulled and
sent to Malone's office. When Nappo did not report for duty Monday morning,
July 26, he was classified as an absentee and Hartwig the maintenance- super-
intendent,-checked with Malone's office to determine whether Nappo would be
in that day. Malone advised Hartwig that he had not had-,a report concerning
Nappo's absence. ' On Tuesday morning, July 27, Nappo not having reported
the reason for his absence, Hartwig told Malone that he did not want Nappo
in his department and that the respondent would have to get some one in
Nappo's place because of-the amount of.emergeney work that had to be done in'
the department. Hartwig at that time also told Malone that Nappo had refused
to work over time. This was a rather serious situation because much of the
millwright work had to be done-after production-shut 'dowii"at' the' end of: the"
day. ' Late Tuesday afternoon, July 27, Nappo' called'Malone on the phone. In,
served two terms in the Erie County Penitentiary for larceny did not come to the attention
of the respondent until after Nappo's discharge. This evidence was offered by the
respondent to show that Nappo, under any circumstances , should not be reinstated. The
undersigned has given consideration to this incident in the determination of Nappo's
credibility. Their testimony is rejected in its entirety.
8 Counsel for the Board offered a substantial amount of testimony to indicate that
Nappo's transfer to the maintenance department was to a less desirable job than the work
which Nappo had done in the snagging department. Nappo had on several occasions com-
plained about the undesirability of working , in the snagging 'department because of the
dust-and dirt , and his transfer to the maintenance department was a much more desirable
job from the standpoint of wages, working conditions and future possibilities for increased
wages Also, the evidence is clear that not only was Nappo's former job in the snagging
department taken by a woman, but several other light grinding jobs in,that department
were taken by women employees.
P-N-X• ENGINE CORPORATION., ,749
the course, of the conversation ,Malone. inquired of Nappo why he had been
absent for; 2 days.. Nappo. replied that he. had. taken 2 days off to .attend to
some business but would report into the plant the following morning. 'Malone
then told Nappo that when he reported to the plant, his check would be ready
for him. The following _ morning when Nappo reported to Malone, Malone
;advised,him, that he was, discharged, and'.to, get a clearance from the tool crib,
return to, the employment office and get his check. . Nappo requested a• release
which was furnished to him by Malone. On July 27, the day prior to Nappo's
return to the plant,,, General, Superintendent, Foss made out a "Pay, Off Slip,"
stating that Nappo had been discharged for the reason "irregular worker-drives
taxicab nights. Unable to hold down both jobs."
The respondent from the time production started in the plant in April down
to' the time of the, hearing has been confronted by a serious problem of ab-
senteeism. During the,period from July 5 to October 25 approximately 26 em-
ployees had been discharged as "irregular workers" and an additional 7 for
loitering or roaming in the plant. Further, the record of absentees from the
period of July' 5 to October 25 discloses that an average of approximately, 20
production and maintenance employees were absent each day. . Such a record
of absenteeism- in a, plant engaged exclusively 'in the manufacture of, Diesel
engines for landing crafts is inexcusable and warranted the respondent in tak-
ing such steps as in its judgment were necessary to correct the situation.
The evidence fails to show that Nappo's concerted or Union activities induced
his discharge. The entire record herein convinces the undersigned that Nap-
po's transfer and' discharge were not' discriminatory. The undersigned con-
cludes and finds that the respondent's transfer and discharge of Nappo was
not motivated by. his concerted activities, his membership in or activities on
behalf of the Union.
5. The alleged discriminatory discharge of Daniel Maulucci
Maulucci started working at the respondent 's Buffalo plant on June 7 and was
discharged on October 30. During this period be'served as a grinder in the snag-
ging department . Maulucci was active in the Union , and after the certification ;
of the Union by the . Board on October 12 he was chairman of the negotiating
committee . According to the "Pay 'Off'Slip" issued on November 3 he was dis-
charged for "soliciting Union dues during working hours."
In addition to the immediate reason for Maulucci's discharge "soliciting union
dues during working hours" there is a substantial amount of testimony in the
record concerning his absences from the snagging department and his loitering
in various parts of the plant. That the respondent was confronted with a situa-
tion of a serious nature because of the employees loitering in various parts
of the plant is conceded . It is, however, unnecessary here to either detail or
review the testimony given by Maulucci and Malone concerning Maulucci's loi-
tering around the plant and the amount of time he spent away from the snag-
ging department . The evidence is clear that Maulucci and another employee,
Salvasao , were perhaps the worst violators in respect to absenting themselves
from their department , but the respondent does not contend that Maulucci was
discharged for that reason , although it undoubtedly to some extent influenced
Malone at the time of the discharge.
The respondent did not have an established or posted 'rule against Union"so-
licitation within the plant ; however, the evidence is ample, to support the con-
clusion that ;Maulucci and all of the other employees who were active in sup-
porting the Union were well aware of the fact that such activities should not
be 'carried on within the plant during working hours. Maulucci had been
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'warned by Malone on • at'le'ast one occasion prior to his discharge on October 30
that he, Maulucci , should not spend his time during working hours on the busi-
ness of the Union °-
On October 30, the day of Maulucci 's discharge , Beechan , a .guard, on mak-
ing his regular 'rOund --through the: plant; from a distance, of about : 200 feet
observed two men standing near a "stack" of'empty crates in a part of the plant
not occupied by the respondent 's operations.. Beechan proceeded toward -the
two men and' when he was close enough to notice that it was Maulucci and
another employee, Gable, the two employees walked away and entered -the
door leading into the snagging department . Beechan then proceeded on -his
rounds and when returning , as he passed the door of the snagging department;
looked in as was his custom and noticed ' Maulucci and Gable engaged in a con-
versation at Maulucci's bench.10 Beechan then proceeded into the snagging de-
partment and approached Maulucci and Gable, observing that Maulucci was
writing something on a piece of paper . Beechan approached Maulucci and in-
quired what'he was doing. Maulucci replied that he was writing a receipt for
Union dues that he had received from Gable. Beechan then took Maulucci and
Gable to the office of Malone, the employment manager. Beechan asked Ma-
lone what should be done about an employee who collected Union dues dur-
ing working hours. Beechan also advised Malone that Maulucci had been writ-
ing out- the Union receipts at, liis,t.bench'and That the rreceipt was in Maulucci's
pocket. After Maulucci admitted that he had been writing out the receipt,' Ma-
lone told him that he had been previously warned about carrying on Union
activities in the plant and that "you know better than this." Maulucci re-
plied, "So what?" Maulucci further stated-to Malone that he had been fol-
lowing such practice in the plant for a long time and turning to Beechan, the
guard, Maulucci said, "it took you a long time to catch up with me." Malone
then ordered the guard to take Maulucci down to the tool crib and get a clear-
ance slip . After the departure of Maulucci and the guard, Malone called
Foss, the general superintendent , and explained what had happened . Malone
recommended to Foss that Maulucci be discharged . Foss concurred in this
recommendation and Malone then ordered that Maulucci 's time be figured up
and he then received a check for the amount of wages due him.
The actual occasion for Maulucei's discharge was his violation of Malone's
special warning not to engage in Union activities on company time and his
insolence to Malone when this was called to his attention. While-the respondent-
did not attempt to justify the' discharge on-the basis of Maulucci's,general', dis-
regard of his work in loitering and roaming throughout the plant, such conduct
served to aggravate the situation when the collection of Union dues was brought
to Malone's attention. The sum of these circumstances constitutes ample and
just cause for the discharge.
The undersigned concludes and finds that Maulucci's membership in and activi-
ties in behalf of the Union in no way motivated the respondent in his discharge.
6. The alleged discriminatory transfer and discharge of Lillian Ortel
Mrs. Ortel was employed by the respondent on September-17 and was assigned
to the shipping department. After about 5 days her leg was injured while un-
9 Maulucci denied that Malone had ever warned him about his Union activities during
working hours, but admitted that he may, have approached some of the women, in the
parts department on Union business . The undersigned credits the testimony of Malone
that on at least one occasion prior to Maulucci's discharge he had been - warned to cease
Union activities in the plant.
10 Gable did not work near Maulucci 's bench and it was obvious ' to Beecban that Gable
was not engaged in any work required by the respondent.
D-N-X ENGINE CORPORATION
1
751
crating a motor . Mrs. Ortel , upon recommendation of the respondent 's doctor,
was. transferred to the packing department in order that she could sit while
working. On October 24 the packing- department , due to a shortage 'of parts,
was unable to keep the employees in that department busy. Under usual circum-
stances Mrs . Ortel would then have been transferred . back to ,her regular job in
the--shipping-departnient ,' but that department also was practically cl©sed°-down
due to - instructions from the Navy Department to cease the shipment , of Diesel
engines. At that time there was a demand for additional employees in the snag-
ging department , it being a department where a number of women had recently -
been transferred to grind light motor parts in order that the men employees could
be released for heavy duties in other parts of the plant . On October 24 Mrs. Ortel
was transferred to the snagging department and-assigned to work , that she was
capable of doing. Mrs Ortel protested her transfer to the snagging department
and demanded to see Malone . She advised Malone that the work was too heavy
in that department and also that it was rather dirty, and for these reasons she
did not care to'be transferred to the snagging department . Malone prevailed
upon Mrs. Ortel to accept the transfer and try out the work . She decided to do
so and continued in that department until her discharge on November 24 although
during the period from October 24 to November 24 she worked only intermittently
and not at all after November 9.
Mrs. Ortel joined ..the Union a, few .da,ys^after she started to work ,in.the shipping
department" She was not active in the Union and according to her testimony
did not solicit memberships , and at no time had any membership or application
cards in her possession to pass out to the employees. The only incident which
occurred during the time Mrs. Ortel was employed in the respondent 's plant that
might provide a basis for an inference that the Union was in any way connected
with either her transfer or discharge occurred shortly after October 12, the date
upon which the Board certified the Union as the representative of the respond-
ent's production and maintenance employees. Mrs. Ortel was instructed by her
foreman to report to the office of Malone. When she reported to that office
Malone told her that he had received complaints from at least three of the girls
in the packing department that she was interfering with their work by talking 'a
great deal about the Union . Malone went on to explain to Mrs. Ortel that she
was employed by the respondent to do certain work and that she should not take
up her time with Union activities or interfere with the work of the other em-
ployees. Malone at this time , further stated to Mrs. Ortel that it was imma-
terial to the respondent what activitieg she engaged,in on liehalf,of the Union,
if it was not done upon the respondent 's time. Mrs. Ortel denied that she had
interfered with the work of the girls by discussing the Union. Malone then in-
structed Mrs. Ortel to return to her department. The statement of Mrs. Ortel
concerning this conversation varies somewhat from that of Malone ; however,
the variance is not in substance but in the choice of words. Whether the version
of Malone or Mrs. Ortel is accepted, it is plain that Malone did nothing more
than to tell her that she should not engage in Union activities during working
hours or interfere with the work of other girls in the department. Mrs. Ortel
testified that Malone closed the conversation by stating, "I will give you another
chance." Aside from this incident there is no testimony in the record that Mrs:
Ortel engaged in any further activities on behalf of the Union.
As hereinbefore related Mrs. Ortel was transferred to the snagging department
on October 24. After working for about 6 days Mrs. Ortel remained at home for
4 days without reporting her absence to the, respondent. Mrs. Ortel testified
that she remained at home because of some trouble she had with her eyes
caused by the dust in the grinding department. She further testified that she
did not report the matter the respondent ' s nurse or doctor at the-plant, nor
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did she have any outside medical service. , Mrs. Ortel reported back ,to, the, plant
and' worked for 2 or 3 days and was- absent then - from November 9 until she
reported at the plant on November 24. The evidence indicates that on the morn-
ing of November 9, Mrs. Ortel 's mother-in ,law died and through Bob 'Rave,
another employee with whom she rode to work, her foreman was advised that
she.would be absent - for several days. Rave reported to Mrs. Ortel that Walter
,Root, her foreman , said that -it would . be 'all right . The. funeral was held on
November 11 and on November 12 there was a bad snow storm. Mrs. Ortel,
as.well as other employees who lived about 30 miles from the plapt ,, could not
get to work on that morning . Rave, in whose car Mrs. Ortel rode to work, at-
tempted to go to .the plant on that morning . While on the way to the plant his
car was "ditched ," but he was able to obtain a ride with another employee.
Upon arriving at the plant Rave was taken seriously ill and sent to the hospital.
When Mrs. Ortel , learned that Rave was in a Buffalo hospital she, phoned' to
Malone and' told him that as soon as . she found some one with whom she could
ride she would report back to work. Mrs. Ortel was carried on' the respondent's
records in an absentee status-until November 20 and then - her time card was
pulled from the rack and her employment terminated . On November 24, she
reported" at the plant , found her time card missing and went to see Malone '
about 7: 00 a. in at the beginning of the morning shift. Malone advised Mrs.
Ortel that her employment had been terminated as of November 20. On Novem-
ber 20, Foss , the General Superintendent , signed a "Pay-Off Slip" indicating that
Mrs. Ortel was laid - off for the reason ,that she was "absent from November 8."
. Under the circumstances related above , and in view of the fact that Mrs.
Ortel's Union activities were . not conspicuous in any way, warranting an infer-
'ence - that her discharge -was for that reason , the undersigned finds that Lillian
Ortel was not discriminatorily transferred and thereafter discharged ,, and further
that by discharging - her the respondent has not engaged in an unfair labor
practice within the meaning - of Section 8 (3) of the Act.
7. The alleged discriminatory discharge of William Friend
Friend was ,employed on October 20, 1942, as an electrician 's helper and after
working in the maintenance `department for about 4 months was placed in charge
of 4 or 5 employees who did grinding work. ' Shortly thereafter the respondent
decided to organize a snagging or grinding department and Friend was selected
as, the foreman . On October 9, 1943, he was discharged . During the time
that Friend was employed in the maintenance department as a helper , his work
was satisfactory and the respondent considered him to be a competent worker.
When the respondent started production in April 1943 , Friend, then being in
charge of the grinding. work, had two or three employees . For some time after
Aprilit was not the intention of the respondent to do any great amount of grinding
work in the plant, but after some negotiations with outside sub-contractors, the
respondent decided that it could better do the grinding work and then organized
the snagging department within its plant. After this decision was made the
respondent continued Friend in charge of the work. Some time in June 1943
the grinding work was moved from near the maintenance department to one
end of the plant. Friend organized the new department and continued as its
foreman until October 9, 1943.
The Board contends that the respondent discharged Foreman Friend "because
of his refusal to participate in a pattern of anti-union activity carried on by the
respondent ." Friend testified that no one representing the management ever
spoke to him concerning the concerted or Union activities of the employees in
the snagging department, or made any reference to the organizing efforts of the
D-N-X ENGINE CORPORATION 753
Union He further testified that he did not, although he knew that the employees
were active in organizing the Union, ever report to any one representing the
management that the Union was active in the plant. On one occasion, Friend
cautioned some of the employees in the snagging department that they should
"watch their step," but lie did not discuss this cautionary remark with any repre-,
sentative of the management The Board does not assert that any representative
of the management ever-suggested to Friend to watch the employees and report
upon their activities The Board bases its contention concerning Friend's dis-
charge upon the fact that Friend, in the early part of July, concurred in the
request of the employees of the snagging department for an increase in wages
and upon the furthei fact that on several occasions, Foss, the general super"
intendent, and Malone spoke to Friend about certain of his employees who were
spending a gi eat deal of time outside of the department However, there is no
testimony to indicate that these remarks by Foss and Malone had any reference
to concerted or Union activities There is no question but that loitering and
roaming in the plant was a serious problem to the respondent. Furthermore,
other fyienien had received similar instructions from Foss and Malone. Foss,-
in the presence of Malone, also on several occasions told Friend to assert himself
and that he should run his department, rather than have the employees run it
for loin Foss and Malone also advised Friend, that they had no complaint
about his work, but that as a foreman he was not employed to actually do the
work but to supervise the employees and direct their activities
If the respondent was engaging in a pattern of anti-union activities designed
to Interfere with the rights of the employees, Friend certainly would have re-
ceived some-suggestions or instructions intended to fit, into the respondent's
pattern. There is no such testimony in the record. The testimony is clear that
Walter'Root, who succeeded Friend as foreman of the snagging department, sub-
siantially increased the production in the department while decreasing the
working force The testimony of employee Salvasao discloses that after Friend
was discharged there was a coinsiderable improvement in the problem of loitering
and roaming about the plant and that he, since the new foreman was appointed,
has left the-department only three or four times There is no claim that Root
in his actions or course of conduct, is in any way hostile or adverse to the Union.
When Friend was called into a conference with Foss and Malone and told that
it appeared it was impossible for him"to properly supervise the snagging deg
partment, and that on more than one occasion, he, Friend, had been told to dis
continue actually performing the work in the department and organize it, Friend
replied by suggesting that under those conditions the respondent had better
"find some one else to take over his duties." When Friend made this statement
Foss replied, "Well, we will replace you tomorrow morning." On October fi',
Foss the general superintendent made 'out a "Pay-Off Slip," indicating that
Friend had been discharged for the reason : "does not fit into organization 'in a
supervisory capacity."
Upon the basis of the record and the foregoing the undersigned concludes and
finds that William Friend was discharged,as a foreman of the snagging de-
partment because of his inability to properly perform his supervisory functions.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
"Board's counsel in his brief makes a special point of the fact that Friend was not
discharged until October 12, the date upon which the Board certified the Union as the
bargaining representative of the employees. The date October 12 is clearly incur rect. The
records of the respondent disclose that Friend was discharged on October 9
601248-45-vol 57-49
754
1
DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The operations of the respondent occur in commerce within the meaning
of Section 2•(6) and (7) of-the Act. -
2. United Automobile, Aircraft, and Agricultural Implement Workers of
America, affiliated with the Congress of Industrial Organizations is a labor or
ganization within the meaning of Section 2 (5) of the Act. .
3. The respondent has not discriminated against Albert Nappo, Leonard Cislo,
Daniel Maulucci, Lillian Ortel and William Friend because of their Union
membership or activities or because of their concerted activites for the-purpose
of collective bargaining or other mutual aid or protection, within thee meaning
of Section 8 (3) of the Act.
,4. The respondent has not interfered with, restrained, or coerced its employ-
ees in the exercise of their rights guaranteed in Section 7 of the Act, within the
meaning of Section 8 (1) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusion of law, the
undersigned recommends that the confplaint against D-N-X Engine Corpora-
tion, Buffalo, New York, be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, any
party or counsel for the Board may'within fifteen (15) days from the date of
the entry of the order transferring' the case to the Board, pursuant to Sec-
tion 32 of Article II of said Rules and Regulations, file with the Board, Rocham-
beau Building, Washington, D. C., an original and four copies of a statement
in writing setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding (including rulings upon all motions or
oljections) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of, ex-
ceptions and/or brief, the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the other parties and shall file a copy with
the Regional Director. As further provided in said Section 33, should any
party desire permission to argue orally before the Board, request therefor must
be made in writing within ten (10) days from the date 'of the order trans-
ferring the case to the Board. - -
JAMES C. BATTEN
Trial Examiner
Dated March 9, 1944. -