Hale Fire Pump Co.

National Labor Relations Board - Board Decisions

Aug 6, 1953

106 N.L.R.B. 603 (N.L.R.B. 1953)

HALE FIRE PUMP COMPANY 603
mend, in accordance with the Woolworth decision, that Respondent upon request makes
available to the Board and its agents all records pertinent to an analysis of amounts due as
back pay.
Since Respondent has restrained, coerced, and interfered with its employees in the exer-
cise of their rights under the Act, and has also committed acts of discrimination with regard
to the hire and tenure of employment of its employees--the latter a form of unfair labor
practice which has been held to "go to the heart of the Act," I am convinced that there is a
danger of a repetition by Respondent of unfair labor practices directed against its em-
ployees. In order, therefore, to make effective the interdependent guarantees of Section 7 of
the Act, to prevent a recurrence of unfair labor practices, and thereby minimize industrial
strife which burdens and obstructs commerce, and thus to effectuate the policies of the Act,
I will recommend that Respondent cease and desist from in any manner infringing upon the
rights guaranteed employees in Section 7 of the Act.16
Since the Dischargees indicated that they would not return to work as long as the picket
line was in existence, and since the record indicates that the picket line was maintained
until the first week in July, it follows that the earliest date that their services were available
to the Respondent was approximately July 1. However, it was not until July 17 that their
willingness and readiness to go back to work was officially communicated to Respondent's
officials by Dischargee Winland. Accordingly, it is found that back pay should run from July
17, 1952, the date of the Dischargees unconditional request for reinstatement in their jobs.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. The Respondent, Bruns Coal Company, Inc., is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. By discriminatorily discharging Philip Scanlan, Howard A. Milstead, William E.
Williams, Robert E. Richardson, Rega C. Lockhart, Ray Frye, Homer V. Anderson, Joshua
F. Richardson, Wayne E. Ray, and Frederick W. Dunn, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of 'the Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid labor practices in paragraphs 2 and 3 are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not violated Section 8 (a) (1) of the Act by engaging in surveillance
as alleged in the complaint.
[Recommendations omitted from publication.]
16 May Department Stores v. N. L R. B., 326 U. S. 376, affirming as modified 145 F. 2d
66 (C A. 8), enforcing 53 NLRB 1366.
HALE FIRE PUMP COMPANY and UNITED STEELWORKERS
OF AMERICA, G.I.O. Case No. 4-CA-818. August 6, 1953
DECISION AND ORDER
On June 9, 1953, Trial Examiner Lloyd Buchanan issued
his Intermediate Report in the above-entitled proceeding,
finding that the Respondent had engaged in and was engaging
in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report
attached hereto. He also found that the Respondent had not
engaged in other unfair labor practices alleged in the complaint
106 NLRB No 102.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and recommended dismissal of those allegations . Thereafter,
the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
The Board' has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the General Counsel's
exceptions and brief , and the entire record in this case, and
hereby adopts the findings , conclusions, and recommenda-
tions of the Trial Examiner with the following additions.
The complaint , as amended , alleged that the Respondent
violated: (a) Section 8 (a) (2) and (1) of the Act by dominating
and supporting the Shop Cooperative Committee, concededly
a labor organization , within the meaning of the Act; ( b) Section
8 (a) (3) and (1) of the Act by laying off and refusing to
reinstate three of its employees ; and (c ) Section 8 ( a) (1) of
the Act by questioning employees concerning their concerted
activities , threatening to discharge or discipline union ad-
herents, and urging employees to engage in surveillance
of union meetings.
After the General Counsel had adduced evidence at the
hearing in support of the allegation that the Respondent
unlawfully dominated and supported the Shop Cooperative
Committee, the Respondent amended its answer to the complaint
to admit this allegation . Accordingly , in his Intermediate
Report, the Trial Examiner found that the Respondent violated
Section 8 ( a) (2) of the Act , and, derivatively, Section 8 (a)
M.
At the close of the hearing, the Trial Examiner granted the
Respondent ' s motion to dismiss that portion of the complaint
which alleged that the Respondent violated Section 8 (a) (3)
of the Act by laying off and failing to reinstate three employees.
In doing so , the Trial Examiner discredited the testimony of
witnesses called on behalf of the General Counsel which
related to the Respondent ' s knowledge as to the union activities
of the three individuals whose layoff was alleged to be dis-
criminatory. The Trial Examiner set forth his credibility
findings on the record, and then concluded that the Respondent
did not violate Section 8 (a) (3) of the Act with respect to the
three dischargees . a In his exceptions and brief , the General
Counsel urged that the Trial Examiner erred in his credibility
resolutions.
The Board has frequently stated that it will not overrule a
Trial Examiner's resolutions as to credibility unless it is
iPursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three- member panel [ Members Houston . Styles, and Peter-
son]
2 The Trial Examiner reserved decision at the hearing on the allegations respecting inde-
pendent violations of Section 8 (a) (1) of the Act. In his Intermediate Report , he dismissed all
these allegations on the basis of his credibility resolutions made at the hearing , except that
he found that the Respondent interrogated and threatened employee Sturgis and initiated
attempts by Sturgis , one of the alleged discriminatees , to withdraw his name from the charge
HALE FIRE PUMP COMPANY 605
convinced, on a clear preponderance of all the relevant
evidence, that the Trial Examiner's resolutions are patently
erroneous.' While our review of the record in the instant
case establishes considerable doubt as to the soundness of
the Trial Examiner's credibility findings, and while we might
not in the first instance have resolved the issues as to
credibility in the same way, we are reluctant to disturb his
credibility findings in the absence of a clear showing in the
record that they are erroneous. Accordingly, because of the
Trial Examiner's credibility resolutions, which under the
circumstances we accept, we are constrained to adopt his
findings , conclusions , and recommendations set forth in
the Intermediate Report.
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 Re-
spondent, Hale Fire Pump Company, Conshohocken, Pennsyl-
vania, its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Dominating, interfering with the administration of, and
contributing support to the Shop Cooperative Committee, or
any labor organization, and from otherwise interfering with
the representation of its employees through a labor organiza-
tion of their own choosing.
(b) Recognizing or in any other manner dealing with the
Shop Cooperative Committee, or any successor thereto, as
the collective-bargaining representative of any of its em-
ployees for the purposes of dealing with the Respondent
concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or any other conditions of employment.
(c) Interrogating, threatening, and initiating attempts of
employees to withdraw from concerted activities.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations, to join or assist
United Steelworkers of America, C.I.O., or any other labor
organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8
(a) (3) of the Act.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
3 See Photoswitch, Inc., 99 NLRB 1366.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Withdraw all recognition from the Shop Cooperative
Committee as the representative of its employees for the
purpose of dealing with the Respondent concerning grievances,
labor disputes , wages, rates of pay, hours of employment,
or any other conditions of employment , and completely dis-
establish said organization as said representative.
(b) Post at its plant in Conshohocken , Pennsylvania , copies
of the notice attached to the Intermediate Report and marked
"Appendix A."' Copies of said notice, to be furnished by the
Regional Director for the Fourth Region , shall, after being
duly signed by the Respondent ' s representative , be posted by
the Respondent immediately upon receipt thereof, and be
maintained by it for sixty ( 60) consecutive days thereafter,
in conspicuous places, including all places where notices
to its employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices
are not altered , defaced, or covered by any other material.
(c) Notify the Regional Director , in writing , within ten (10)
days from the date of this Order , that steps have been taken
to comply herewith.
4 This notice, however, shall be and it hereby is amended by striking from the first para-
graph thereof the words "Recommendations of a Trial Examiner " and substituting in lieu
thereof the words "A Decision and Order." 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 "Pursu-
ant to a Decision and Order " the words " Pursuant to a Decree of the United States Court of
Appeals, Enforcing an Order."
Intermediate Report and Recommended Order
The complaint herein , as amended at the hearing, alleges that the Respondent has violated
Section 8 (a) (2) of the National Labor Relations Act, as amended, 61 Stat. 136, by dominating
and supporting the Shop Cooperative Committee ; Section 8 (a) (3) by laying off and refusing
to reinstate Harry Sturges , Ignatius Wodarski , and Henry McCormick ; and Section 8 (a) (1)
by said alleged acts and by questioning employees concerning their concerted activities,
threatening to discharge or discipline union adherents, and urging employees to engage in
surveillance of union meetings.
The answer as filed denied the allegations of unfair labor practices . During the course of
the hearing and after a great deal of evidence was received on the issue , the Respondent
amended its answer to admit the allegations of violations of Section 8 (a) (2) and of Section 8
(a) (1) to the extent that it is derivative therefrom.
A hearing was held before me at Philadelphia, Pennsylvania , from March 18 to 24, 1953,
inclusive . At the close of the hearing Igranted the Respondent 's motion to dismiss the allega-
tions of violation of Section 8 (a) (3).
Upon the entire record in the case and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT (with reasons therefor)
L THE RESPONDENT' S BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED
It was admitted and I find that the Respondent , a Pennsylvania corporation with principal
place of business at Conshohocken , Pennsylvania , manufactures fire pumps and allied acces-
sories ; that during 1952 it purchased raw materials valued at more than $ 80,000 , of which
approximately 30 percent was shipped to its place of business from points outside the State
of Pennsylvania ; and that it annually manufactures products valued at more than $1,000,000,
HALE FIRE PUMP COMPANY 607
of which more than 50 percent is shipped to points outside the State of Pennsylvania. It was
admitted and I find that the Respondent is engaged in commerce within the meaning of the
Act.
It was admitted and I find that United Steelworkers of America , C.I.O., and Shop Cooperative
Committee are labor organizations within the meaning of the Act.
IL THE UNFAIR LABOR PRACTICES
Witnesses ' inconsistencies and occasional amnesic difficulties do not prohibit findings
based on substantial evidence offered by them and consideration of the whole record. As
will be noted , I have accepted as credible the testimony of some witnesses in part only;
rejecting portions , I have felt warranted in crediting other portions of given witnesses'
testimony.
A. The alleged violation of Section 8 (a) (2)
The evidence indicates, it was admitted , and I find , that the Respondent has since June 10,
1952 (the limit of the statutory 6 -month period ), dominated and interfered with the administra-
tion of the Shop Cooperative Committee and has contributed financial and other support
thereto.
( I have not overlooked the possibility or the existence of such discriminatory intent in
connection with the violation of Section 8 (a) (2) as would support a finding of violation of
Section 8 (a) (3). Support of the Committee started in August 1951 before a Board-conducted
election in which an AFL union was defeated . But there is no proof beyond that offered and
considered in connection with the 8 (a) (3) allegations that the Respondent 's sponsorship
of the Committee or its support at any time either prior to or after September 1952 involved
or suggested discrimination against any employees . The question of the Respondent 's anti-
union animus was considered on the record in connection with the layoffs of McCormick
and Wodarski , and it was there noted that no action had for a year been taken against
McCormick despite his known activities or against other employees despite their presumably
known activities which paralleled those of the alleged discriminatees . I would add at this time
a reference to the testimony of Christman , who was employed in the pump department until
the beginning of May 1952. His contention that he was "let go" with the explanation that there
wasn't enough work when in fact there was, as he told Palmer, the Respondent 's personnel
manager, is answered by the latter's testimony that the foreman had said that Christman
wasn't doing enough work. Again , this is noted in connection with the question of the Re-
spondent 's animus against the AFL; Christman 's discharge is not in issue . His vindictiveness
toward Palmer minimizes the effect of his testimony which , uncontradicted , suggests that
Palmer discharged him for AFL activities i and indicates that Palmer stated that his own
job was in danger because of the activities of Christman , who was then no longer employed
by the Respondent.)
B. The alleged independent violation of Section 8 (a) (1)
Beyond the question of the breadth of the order to be recommended , the remedy proposed
infra for violation of Section 8(a)(2)makes it unnecessary to consider the alleged independent
violations of Section 8 (a) (1). But the testimony concerning the latter casts light on the
credibility of witnesses and the 8 (a) (3) issues disposed of at the hearing.
Sturges testified that between the latter part of July and the end of August 1952 , Palmer
came to see him in the paint shop about every day, staying most of the time2 for an hour
or two . The nature of Sturges ' work required that he desist while he and Palmer talked.
(He also testified to other conversations with Palmer in the equipment office.) Palmer
testified that he went through the plant periodically and merely passed the time of day with
i The nature and extent of such activities while Christman was employed are not set forth.
2Sturges appears to have been the talkative one: In July he sent for Hoffer , superintendent
of the equipment department , and spoke of the Norristown union meeting , and later he called
Palmer and Hoffer to show them a union card in his lunchbox and denied that he was mixed
up in the union business.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sturges about once a week. Early one morning during the course of these conversations,
Palmer allegedly told Sturges that management had an idea that those who had organized
for the AFL in 1951 were now organizing for the CIO, and if it found out who they were.
they'd be thrown out. Palmer also asked whether McCormick or Sturges had anything to do
with the Union, and Sturges replied that he didn't and didn't think that McCormick did.
While the Respondent 's attitude of noninterference may have changed during the intervening
year, I do not credit this testimony that it apparently had; I accept Palmer 's denials.
I also credit the denial that Palmer suggested and threatened that Sturges stay away from
union meetings , and that Palmer, indicating unlawful surveillance, pointed McCormick out
as the Union's chief committeeman. As for the so-called corroboration by McCormick on
the basis of Sturges ' repetition of Palmer 's alleged remarks , we need not now determine
whether such hearsay may be relied on as support for competent testimony; McCormick's
later testimony indicated no such accuracy or exceptional recollection either of events the
year before or even of his own earlier testimony as he claimed for his ability to recall
events and dates because he had "been thinking his mind over." In fact, his later uncertain
manner so contrasted with his earlier glibness as to suggest that his purported recollection
was at least fanciful.
Unlawful questioning and surveillance are suggested in Sturges ' testimony that Palmer
several times asked how many attended union meetings and, when Sturges mentioned numbers,
contradicted him and cited lower figures. Palmer denied making any such remarks, and
Hoffer denied that they occurred in his office. I find no violation here or in McCormick's
statement that Palmer asked him in August about the Union 's progress and its possibilities
for achievement. McCormick here appeared to anticipate the question asked him.
After Sturges was recalled to work on January 16, 1953, Palmer directed him to see
Wendell, the Respondent's president, who asked him whether he was a member of and had
paid dues to the Union. Such inquiries are violative of the Act.
On January 28, 1953, Sturges wrote a letter to the Board, requesting that the charge herein
be withdrawn and pointing out that he had been recalled to work and was firmly convinced
that the layoff had been due to lack of work. The circumstances surrounding the writing
of this letter are in dispute. According to Sturges. Palmer had said to him in the paint shop
a day or so before that he (Sturges) had gotten himself into a great deal of trouble (with
the Board and the Union), he was the key witness in the case, and it would be best to clear
things up; Sturges then declared that he would write a letter, and Palmer stated that he
would arrange things so that Sturges could write the letter (just what arrangements were
necessary does not appear); on the 28th, Palmer called him to the office, referred to "that
letter to Philadelphia," and spelled the words as Struges wrote them, the wording being
Palmer's.
According to Palmer, Sturges approached him in the office, said that he would like to do
something about the mess and get out of it, to which Palmer replied, "It's all in your hands";
Sturges then wrote the letter, asking Palmer what to say and the latter telling him to say
that he wanted to get out of it; Palmer agreed that the wording and spelling were his; at
Sturges ' request, the letter was mailed by the Respondent.
Sturges testified that he did not mean "I am firmly convinced that I was laid off for lack
of work," that he had not known what was going to be put into the letter, and that he had not
read it and did not yet know what was in it. What he thought he was signing does not appear;
he did not quite suggest that a fraud had been perpetrated upon him. In fact, he denied that
he understands the phrase "firmly convinced." I noted that such phrases as "isolated con-
versation" and "volunteered the information" were not beyond his comprehension. I noted
also that he can read; while he would not himself employ the language of the letter, he can
understand it. Further, he was exceptionally hesitant throughout this portion of his testimony,
and I do not believe that the idea conveyed in the letter , as distinguished from the phraseology
and spelling , was Palmer 's, even if the latter was not as passive as his testimony suggests.
On the related question of activity immediately prior to the letter, I credit Palmer's
testimony that Sturges approached him, said that he wanted to get out of the mess , and asked
what to say in the letter.
Previously , however, and approximately a week after his return. or about January 23, Sturges
had volunteered to Palmer the information that he had lost 3 or 4 days while employed else-
where during his layoff. Palmer replied that he had "a lot more to lose." Palmer did not
HALE FIRE PUMP COMPANY 609
deny this conversation. Despite Sturges ' attempt, which I have not credited , to bolster his
position with respect to the letter , the evidence indicates that the warning or threat implicit
in Paluier 's statement that he had a lot more to lose not only tended to interfere but actually
prompted the letter as an attempt to make his job more secure.
Concentrating as did the General Counsel on the testimony concerning the conversations
more immediately preceding the letter , the Respondent conceded that had Palmer Initiated
the attempted withdrawal , such an act would constitute coercion because of the restraint
under which the employee would thus be put. It is unnecessary to decide whether, as the Gen-
eral Counsel maintains , it is interference to assist an employee, at his request, to "with-
draw " a charge. I find that Palmer , in the conversation on or about January 23 , prompted
the letter . The threat and the assistance in issuing the letter under such circumstances
restrained and interfered with organizational activities.
Thereafter , Sturges remarked to Palmer that he realized that he was in pretty deep in
connection with the pending proceeding. Palmer suggested that lie consult an attorney and,
when Sturges replied that he didn't know an attorney, offered to arrange for him to meet the
Respondent 's attorney. Later , and a few weeks before the hearing, Palmer told Sturges that
the Respondent 's attorney was in the plant and would see him, but Sturges then refused , saying
that he had been so advised . Palmer at no time threatened Sturges with respect to any such
interview, nor did he even order him to see the attorney. I find no interference here.
Several times Palmer claimed ignorance of what he might reasonably be expected to know,
and appeared confused . This might lead to different conclusions were the General Counsel's
case stronger . As it is, we have weakness on each side, and inconsistency . But the Respond-
ent's inconsistencies are no substitute for the proof which the General Counsel's case lacks.
UL THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section II, above, occurring in connection with
the operations described in section I, above, have a close, intimate , and substantial relation
to trade, traffic , and commerce among the several States , and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
IV. THE REMEDY
Since It has been found that the Respondent has engaged in and Is engaging in certain unfair
labor practices affecting commerce , I shall recommend that it cease and desist therefrom and
take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Respondent 's activities in connection with the Committee con-
stituted domination of that labor organization in violation of Section 8 (a) (2) of the Act. I shall
therefore recommend that the Respondent withhold all recognition from and disestablish s the
Committee as the representative of any of its employees for the purpose of dealing with it
concerning grievances , labor disputes , wages , rates of pay, hours of employment , or other
conditions of employment.
It has been further found that the Respondent , by interrogation, threat, and initiation of an
attempt to withdraw from concerted activities, interfered with , restrained, and coerced its
employees in violation of Section 8 (a) (1) of the Act. I shall therefore further recommend
that the Respondent cease and desist therefrom.
The unfair labor practices found herein indicate a purpose to limit the lawful concerted
activities of the Respondent 's employees . Such purpose is related to other unfair labor prac-
tices , and it is found that the danger of their commission is reasonably to be apprehended. I
shall therefore recommend a broad4 cease -and-desist order, prohibiting infringement in any
manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record in the case, I make
the following:
3 The Carpenter Steel Company, 76 NLRB 670.
4James R Kearney Corp., 81 NLRB 26, cited in C. Ray Randall Manufacturing Company,
88 NLRB 140
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. United Steelworkers of America, C.I.O., and Shop Cooperative Committee are labor
organizations within the meaning of Section 2 (5) of the Act.
2. By dominating, interfering with the administration of, and contributing support to the
Committee, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (2) of the Act.
3. By such domination, interference, and support, and by interrogation, threat, and initia-
tion of an attempt to withdraw from concerted activities, thereby interfering with, restrain-
ing, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act,
the Respondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce, within
the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner 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 dominate , interfere with the administration of, or support Shop Co-
operative Committee , or any other labor organization of our employees.
WE WILL NOT recognize or in any other manner deal with Shop Cooperative Com-
mittee or any successor thereto as the representative of any of our employees for the
purpose of collective bargaining.
WE WILL NOT interrogate , threaten , or initiate attempts of our employees to with-
draw from concerted activities.
WE WILL NOT in any other manner interfere with, restrain , or coerce our employees
in the exercise of the right to self-organization , to form labor organizations , to join or
assist United Steelworkers of America , C.LO., or any other labor organization, to bar-
gain collectively through representatives of their own choosing , and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or allof such activities , except to the extent that such right
may be affected by an agreement requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8 (a) (3) of the Act.
WE hereby disestablish Shop Cooperative Committee as the representative of any of
our employees for the purpose of dealing with us concerning grievances, labor disputes,
wages , rates of pay, hours of employment, or any other condition of employment.
HALE FIRE PUMP COMPANY,
Employer.
Dated ................ By.............................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.