Hercules-Campbell Body Co., Inc.

National Labor Relations Board - Board Decisions

May 25, 1938

7 N.L.R.B. 431 (N.L.R.B. 1938)

In the Matter Of HERCULES-CAMPBELL BODY Co., INC. and UNITED
AUTOMOBILE WORKERS OF AMERICA, LOCAL #118
Case No. C-382.-Decided May 05, 1938
Automobile and Bus Body Manufacturing Industry-Interference , Restraint,
and Coercion : expressed opposition to labor organization ; threat to transfer
operations to other plants-Discrimination : discharge : for union activity ; to
discourage membership in union-Reinstatement Ordered: discharged employee-
Back Pay: awarded.
Mr. Mark Lauter, for the Board.
Bertch,er & Gottlieb, by Mr. Louis Bertcher, of New York City, for
the respondent.
Emil Schlesinger & Abraham Schlesinger, by Mr. Alfred Berman,
of New York City, for the Union.
Mr. Victor A. Pascal, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by United Automobile Workers of Amer-
ica, Local #118, herein called the Union, the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for the
Second Region (New York City), issued a complaint, dated December
8, 1937, against Hercules-Campbell Body Company, Inc., a New
Jersey corporation, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1) and
(3), and Section 2 (6) and (7), of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint, accom-
panied by notice of hearing thereon, were duly served upon the
respondent and the Union.
The complaint alleged in substance that the respondent had dis-
charged one of its employees, John Foy, because of his Union affilia-
tion and organizational activity, thereby discriminating in regard to
his tenure of employment; and that by this discharge and other acts
and conduct the respondent had interfered with, restrained, and
431
432 NATIONAL LABOR RELATIONS BOARD
coerced its employees in the exercise of their rights guaranteed in
Section 7 of the Act. On December 15, 1937, the respondent filed
its answer denying the alleged unfair labor practices and setting forth
certain affirmative matter.
Pursuant to the notice, a hearing was held at New York City on
December 18 and 21, 1937, before H. R. Korey, the Trial Examiner
duly designated by the Board. The Board, the respondent, and the
Union were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to produce evidence bearing on the issues was afforded all parties;
During the course of the hearing the Trial Examiner made several
rulings on motions and on objections to the admission of evidence.
The Board has reviewed these rulings and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
On January 24, 1938, the Trial Examiner filed an Intermediate
Report, copies of which were duly served upon all parties, finding that
the respondent had committed unfair labor practices affecting com-
merce, within the meaning of Section 8 (1) and (3), and Section 2
(6) and (7), of the Act, and recommending that the respondent cease
and desist therefrom and, affirmatively, offer full reinstatement with
back pay to John Foy. On February 3, 1938, exceptions to the In-
termediate Report were filed with the Board by the respondent. The
Board has considered the exceptions to the Intermediate Report and
finds them to be without merit. Neither the Union nor the respond-
ent availed themselves of the opportunity given them to present oral
argument before the Board.
Upon the entire record in the. case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Hercules-Campbell Body Company, Inc., is a New
Jersey corporation with its principal office in South Kearney, New
Jersey. It is engaged in the business of manufacturing, assembling,
servicing, selling, and distributing commercial and special bodies for
automobiles, busses, and related products. The respondent maintains
plants at South Kearney, New Jersey, at Tarrytown, Albany, and
Waterloo, New York, at Cambridge, Massachusetts, and at Portland,
Maine. This proceeding involves only the respondent's plant at
Tarrytown, New York. All reference herein to the respondent, unless
otherwise indicated, is confined to its Tarrytown plant.
During the period from June 1, 1937, to December 1, 1937, the
respondent's purchases of materials amounted to approximately $90,-
000 in value. Approximately $70,000 of this amount represented mate-
rials shipped to it from points outside the State of New York. Dur-
DECISIONS AND ORDERS 433
ing the same period, the approximate value of its sale of finished
products amounted to $120,000. Thirty per cent of this amount was
shipped by the respondent out of the State of New York.
The number of the respondent's employees depends upon the amount
of its business, which is not stable throughout the year. In April
1937, there were approximately 22 employees engaged in production
work at the respondent's plant.
IL THE UNION
United Automobile `Yorkers of America, Local #118, is a labor
organization affiliated with the Committee for Industrial Organiza-
tion. It admits to membership the respondent's production employees.
III. TIIE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; and the discharge
There does not appear to have been any labor organization among
the respondent's production employees prior to April 16, 1937. Be-
tween that time and April 23, 1937, 14 of the respondent's 22 produc-
tion employees became members of the Union through the efforts of
John Foy, who is alleged in the complaint to have been discrimina-
torily discharged on April 23, 1937.
Robert Campbell, the respondent's president, and Karl Bernhardi,
the respondent's foreman, maintained at the hearing that they had
no knowledge of the Union's activity among the respondent's em-
ployees prior to Foy's discharge on April 23, 1937. Nevertheless,
when Campbell returned to the plant on April 19, after an absence
of about 10 days, he was perturbed by what he termed "what was
going on" in the plant. Therefore, according to Campbell's testi-
mony, he called five employees, selected at random, into his office
and spoke to them. According to the testimony of Harry Krapser,
one of the five employees, Campbell informed them that "he was
willing to meet with the boys at any time . . . and try to straighten
matters out with them . . . but he said he could tell us that he
would not have anything to do with an outside union or any outside
agency." A Union meeting was held the same night, April 19. A
committee of three employees was appointed to confer with Campbell
respecting an increase in wages. The committee held a conference
with Campbell the following day, April 20, at which time he again
expressed his determination not to deal with a union. According,
to his own testimony, Campbell informed the committee that he
would not confer with an outside union or with anyone not connected
with the respondent. Although Campbell made no direct threats
of discharge or other reprisals, a member of the committee testified
434 NATIONAL LABOR RELATIONS BOARD
that Campbell informed them that he could eliminate the major part
of the respondent's business at Tarrytown by transferring it else-
where. The committee was unsuccessful in its effort to secure aiz
increase in wages.
On April 23, 1937, Foy was discharged under circumstances set
forth below. On April 26, 1937, the Union filed charges against the
respondent with the Regional Director. The following day the re-
spondent gathered its employees together in a room in the plant.
Campbell addressed them, announcing a general increase in wages
and holding forth the promise of an additional increase in the future,
According to the testimony of Charles Mechling, one of the employees
present, Campbell stated that "he had no right to tell us what to
do, whether to join any organization, but he figured that it was like
throwing money away and he brought us all up there and he was
going to give us an increase in wages." Mechling's testimony is
corroborated to some extent by the respondent's foreman, who ad-
mitted that Campbell told the employees that it was not necessary
for "the boys to join anything." It is clear that, after the failure
of the Union committee to secure an increase in wages, Campbell's
announcement of a general wage increase, coupled with his statements
concerning the futility of unions, was intended, at least in part, as
striking proof of these and his previous statements regarding the
positive benefits of not having a union at the respondent's plant.
The discharge of John Foy. The complaint alleged that on April
23, 1987, the respondent discharged and thereafter refused to rein-
state John Foy because of his union activities. The respondent's
answer avers that Foy was not discharged on April 23, but was laid
off in accordance with its usual practice because of lack of work,
and that he was not reinstated subsequently because of certain abusive
and improper remarks which, it is asserted, he made to the respondent's
foreman at the time of the lay-off.
Foy entered the respondent's employ as a production worker about
August 12, 1934. During slack periods it was the respondent's prac-
tice to lay off a number of its employees who would return to work
when business improved. During his term of employment with the
respondent, Foy, along with other employees, had been laid off on
several occasions when business was dull and taken back when
production increased.
Foy had been a member of the Union before he entered the respond-
ent's employ, but his membership had lapsed. On February 12, 1937,
Foy rejoined the Union. He i-as the chief proponent of the Union
at the respondent's plant, and, as previously stated, his efforts resulted
in 14 of the respondent's 22 production workers becoming members
of the Union. Foy persuaded 11 employees to join the Union on April
16, 1937, two on April 19, 1937, and one more on April 23, 1937.
DECISIONS AND ORDERS 435
At the close of work on April 23, 1937, Bernhardi informed Foy,
that he was being laid off because of lack of work. An argument,
which was carried on in loud tones, ensued between the two men in
the presence of several employees. According to Bernhardi's version
of the incident, Foy was impertinent and used obscene expressions in
reference to him and to Campbell. On the other hand, Foy denied
that be had used improper language and testified that, when he asked
Bernhardi why he was "drawing lines" between him and William
Thachuk in disregard of Foy's seniority rights, Bernhardi became
enraged and declared that he "didn't care for the C. I. 0." Bernhardi
not only denied that he had mentioned the, C. -I.,°O. in the course of
the argument, but also asserted-that he, was unaware, at the time of
the argument, that Foy or any other employees were members of the
Union. Later in his testimony, however, Bernhardi admitted that for
about a week prior to the discharge he had suspected that Foy was
a member of the Union.
Two other employees who were laid off at the same time as Foy
subsequently returned to work. Foy applied for reinstatement on
April 26, 1937, but Bernhardi refused to speak to him. Campbell
testified that when he learned of the incident of Foy's lay-off from
Bernhardi, he instructed Bernhardi not to reemploy Foy. Bernhardi
testified that he would have reemployed Foy, when business so war-
ranted, if he had not been impertinent, used obscene language, and
conducted himself as he- did.
In -view of the conflicting versions by Foy and Bernhardi respect
ing their altercation on April 23, especial weight attaches to the
testimony of third persons who were present and heard the argument.
As previously stated, several employees witnessed the incident. At
the hearing one such employee, Mechling, substantially corroborated
Foy's testimony. On the other hand, the respondent failed to pro-
duce any witnesses to corroborate Bernhardi's version of the incident.
We find that the evidence adduced at the hearing does not sustain
the affirmative allegation of the respondent's.answer as to its reasons
for -laying off Foy -and refusing- to reinstate him.
The respondent maintained that Foy. was not, discharged on. April
23, but was temporarily laid off because of lack of work. The evi-
dence shows that the respondent's production was decreasing and that
it was necessary to lay off some employees. Thus, the question that
confronts us is whether the respondent laid off Foy on April 23 be-
cause of his union activity or because of business reasons. When
Bernhardi informed Foy that he was being laid off, Foy did not
object on the ground that no lay-off was necessary, but on the ground
that William Thachuk, who performed work similar to his, was re-
tained in spite of Foy's seniority. Thachuk was about 19 years old
436 NATIONAL LABOR RELATIONS BOARD
and began his employment with the respondent in December 1936,
while Foy had entered the respondent's employ more than 2 years
earlier. There is some conflict in the testimony concerning the extent
to which the respondent observed seniority of employment in laying
off and taking back its employees, but this much is clear : according
to Bernhardi, seniority was considered between employees of equal
ability, and, according to Campbell, seniority was a factor in de-
termining the order in which employees were to be laid off. There-
fore, significance attaches to the manner in which the respondent had
previously laid off and rehired its employees. On January 29, 1937,
when both Foy and Thachuk were in the respondent's employ, the
respondent laid off a number of employees. When business increased,
the respondent took Foy back to work before Thachuk. Its failure
to follow this precedent, particularly in the light of Foy's seniority,
seems to us significant in view of its occurrence at a time when Foy
was very active in union affairs and had just been instrumental in
causing 14 of the respondent's employees to join the Union. We find
that the evidence does not sustain the respondent's contention that
Foy was laid off because of lack of work.
The evidence clearly reveals, that Foy was the chief proponent
of the Union, that for about a week prior to his discharge he had
been instrumental in causing 14 of the respondent's 22 employees to
join the Union, and that shortly prior to Foy's discharge, Campbell
had on 2 occasions made it clear to the employees that he was opposed
to the Union.
We find that the termination of Foy's employment was not a
temporary lay-off, but a discharge, and that the discharge, occurring
under these circumstances, coupled with the respondent's failure to
substantiate its reasons for the discharge and for its refusal to
reinstate him thereafter, was motivated by Foy's union activity.
Subsequent events. About June 1937, under circumstances which
do not fully appear in the record, the respondent posted a notice in
its plant, stating in effect that the respondent would abide by the
provisions of the Act, that it had no objection to its employees or-
ganizing, forming, or joining any union, and that it would not dis-
criminate against any employees because of his membership in, a
labor organization. About the latter part of August 1937, the
respondent's employees went out on strike. Subsequently the strike
was settled and the employees returned to work. The respondent
and the Union executed a contract, which expressly provided that
it was without prejudice to the Union's charges which had been filed
with the Board concerning the discharge of Foy.
Neither the respondent's posting of the notice in its plant nor
the execution of the contract with the Union affect the issues raised
by the complaint herein.
DECISIONS AND ORDERS 437
Concluding findings. We find that the respondent, in discharg-
ing, and thereafter refusing-to reinstate John Foy, discriminated in
regard to his tenure of employment, thereby discouraging member-
ship in the Union. We further find that the respondent, by dis-
discharging Foy and by its other acts and conduct described above,
has interfered with, restrained, and coerced its employees in the
exercise of their rights guaranteed in Section 7 of the Act.
IV. EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed 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.
Upon the basis of the foregoing findings of fact and upon the entire
record in the proceeding, the Board-makes the following:
CONCLUSIONS OF LAW
1. United Automobile Workers of America, Local #118, is a labor
organization within the meaning of Section 2 (5), of the Act.
2. The respondent, by discriminating in regard to the tenure of
employment of John Foy, and thereby discouraging membership in
United Automobile Workers of America, Local #118, has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8 (3), of the Act.
3. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of their rights, guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1), of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7), of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Hercules-Campbell Body Company, Inc., and its officers, agents,
successors, and assigns, shall:
1. Cease and desist :
(a) From discouraging membership in United Automobile Work-
ers of America, Local #118, or any other labor organization of its
438 NATIONAL LABOR RELATIONS BOARD
employees by discriminating in regard to hire or tenure of employ-
ment or any term or condition of employment ;
(b) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-organi-
zation, to form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of
the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer John Foy immediate and full reinstatement to his former
position, without prejudice to his seniority and other rights and
privileges ;
(b) Make whole said John Foy for any loss of pay he has suffered
by reason of his discharge, by the payment to him of a sum of
money equal to that which he would normally have earned as wages
during the period from the date of his discharge to the date of such
offer of reinstatement, less the amount, if any, which he has earned
during said period ;
(c) Post, immediately, and keep posted for a period of at least
thirty (30) consecutive days from the date of posting, notices in
conspicuous places throughout the plant stating that the respondent
will, cease-and desist in'the manner set forth in 1 (a) and '(b), and
that it will take the•,affirmative action set forth in 2 (a) and (b), of
this order;
(d) Notify the Regional Director for the Second Region in writ-
ing within ten (10) days from the date of this order what steps the
respondent has taken to comply herewith.