Louisville Title Agency

National Labor Relations Board - Board Decisions

Sep 19, 1949

85 N.L.R.B. 1344 (N.L.R.B. 1949)

In the Matter of M. S. HEWGLEY , W. P. NEWTON, AND ETHEL P.
HEWGLEY, D/B/A LOUISVILLE TITLE AGENCY and TITLE EXAMINERS
UNION No . 19496 (AFL)
Case No. 8-CA-59.-Decided September 19,1919
DECISION
AND
ORDER
On February 16, 1949, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in unfair labor practices as alleged
in the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, counsel for the Union filed exceptions and
a supporting brief and the Respondents filed exceptions and a reply
brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record in
this case and hereby adopts the findings, conclusions, and recommen-
dations, with the following modifications : 2
1. We agree with the Trial Examiner that the Respondents have
not violated Section 8 (a) (1) of the Act.
Mansell and Gilmore, president and vice president, respectively, of
the Union, testified that in November 1941, Hewgley stated that he
would regard his employees' affiliating with the Union as an indica-
tion of failure on his part as manager of the Respondents' business,
and dissatisfaction on the part of his employees, and "there was no
room in a successful organization for anyone who was dissatisfied."
This was reported to the members of the Union. Hewgley denied that
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
amended, the Board has delegated its powers in connection with this case to a three -member
panel [Chairman Herzog and Members Houston and Gray].
The requests for oral argument by the Union and the Respondents are hereby denied
inasmuch as the record , in our opinion, adequately presents the issues and positions of the
parties.
85 N. L. R. B., No. 223.
1344
LOUISVILLE TITLE AGENCY 1345
he had made such statements. Without resolving this conflict the
Trial Examiner found that Hewgley did not intend to convey any
coercive threats to employees and that the statements, even if made,
were therefore not violative of the Act.
It has been held uniformly by the Board and the courts that the test
of interference, restraint, and coercion does not turn on the employer's
motive or whether the coercion succeeded or failed.3 The test in con-
text with Section 8 (c) of the Act, is whether the employer engaged
in conduct which, it may reasonably be said, tended to coerce employees
in the free exercise of their rights under the Act.4 However, even if
made, this isolated statement, standing alone, is insufficient to warrant
a finding of interference, restraint, and coercion in violation of the
Act.
2. Like the Trial Examiner we are of the opinion that the prepon-
derance of the testimony does not warrant a finding that Webb, Wargo,
and Homenuk were discriminatorily discharged within the meaning
of the Act. We shall accordingly dismiss the complaint.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against the Respond-
ents, M. S. Hewgley, W. P. Newton, and Ethel P. Hewgley, doing busi-
ness as Louisville Title Agency, Cleveland, Ohio, be, and it hereby
is, dismissed.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Bernard Ness, Esq., Cleveland, Ohio, for the General Counsel.
Messrs, Smoot and Riemer, by Mortimer Riemer, Esq., Cleveland, Ohio, for the
Union.
Messrs. M. S. Hewgley and W. P. Newton, Cleveland, Ohio, for Respondent.
STATEMENT OF THE CASE
Upon an amended charge duly filed by Title Examiners Union No. 19496 (AFL),
herein called the Union, the General Counsel of the National Labor Relations
Board, called respectively the General Counsel and the Board, by the Regional
Director of the Eighth Region (Cleveland, Ohio), issued his complaint dated
September 28, 1948, against M. S. Hewgley, W. P. Newton, and Ethel P. Hewgley,
d/b/a Louisville Title Agency, Cleveland, Ohio, herein called Respondent, alleging
S N. L. It. B. v. Burry Biscuit Corp ., 123 F. 2d 540 (C. A. 7) ; Western Cartridge Co. v.
N. L. R. B., 134 F . 2d 240 (C. A. 7).
4 N. L. It. B. v. Gate City Cotton Mills , 167 F. 2d 647, 649 (C. A. 5) ; N. L. It. B. v.
Illinois Tool Works, 153 F. 2d 811 ( C. A. 7). See also N. L. It. B. v . Peterson, 157 F. 2d
514 (C. A. 6).
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent had engaged in, and was engaging in, unfair labor practices
affecting commerce within the meaning of Section S (a), subsections (1) and
(3), and Section 2 (6) and (7) of the Labor Management Relations Act, 1947,
61 Stat. 136, herein called the Act. Copies of the complaint and both the original
and the amended charge were duly served on Respondent and the Union.
With respect to unfair labor practices, the complaint alleged in substance that
Respondent interrogated its employees concerning their union affiliation, and
threatened and warned them to refrain from joining and assisting the Union
and in engaging in concerted activities; and that on or about May 6, 1948,
Respondent discharged three named employees because of their union affiliation
and activities.
Respondent 'in its duly filed answer denied the jurisdiction of the Board and
denied that it had engaged in any.of the alleged unfair labor practices.
Pursuant to notice, a hearing was held November 21, 22, and 23, 1948, at Cleve-
land, Ohio, before the undersigned Trial Examiner duly designated by the Chief
Trial Examiner. All parties were represented by counsel, participated in the hear-
ing, and were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. After the taking
of evidence, a motion to conform the pleadings to the proof was granted without
objection. Ruling was reserved on Respondent's motion to dismiss the com-
plaint, made at the close of General Counsel's case-in-chief and renewed after
all evidence had been taken. This motion is disposed of in the findings herein-
after made. After the evidence had been taken, there was a discussion of issues
on the record. Respondent and the Union filed briefs with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned Trial Examiner makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent is a partnership with its principal office in Cleveland, Ohio, where
it is engaged in the business of examining and searching real property titles
as licensed agents of the Louisville Title Insurance Company, a Kentucky cor-
poration which transacts business in 13 States, including Ohio. Policies of title
insurance are issued by Respondent as agent for Louisville Title Insurance
Company. In 1947, Respondent processed approximately 11 percent of all mort-
gages filed in Cuyahoga County, Ohio, in which Cleveland is situated. In the
same year, Respondent processed mortgages valued at approximately $1,560,000,
the mortgagees being incorporated in and doing business in States other than
Ohio, and on which policies of insurance and guarantee were underwritten by
Louisville Title Insurance Company through Respondent, its agent. Approxi-
mately 80 percent of Respondent's title insurance business is for financial
institutions such as the National City Bank of Cleveland, Society for Savings
in Cleveland, and other lending institutions. Respondent remits all premiums
collected, less commissions, to its principal, Louisville Title Insurance Company.
Respondent uses the Mutual Network to advertise its services in Ohio.
Respondent in its answer denied that it was engaged in commerce within
the meaning of the Act, though in its brief submitted to the undersigned it
states that it is "making no particular issue of this question."
There appears to be no distinction in principle, insofar as the issue of juris-
diction is concerned, in Respondent's business and the business of various life
LOUISVILLE TITLE AGENCY 1347
insurance companies and banking institutions which the Board and the Courts
have found to be engaged in commerce within the meaning of the Act. Here there
is that same "continuous and indivisible stream of intercourse among the states
composed of collections of premiums, payments of policy obligations, and the
countless documents and communications which are essential to the negotiation
and execution of policy contracts," which the Supreme Court found to constitute
interstate commere in United States v. South-Eastern Underwriters Association,
et at., 322 U. S. 533, 539, 540. See also, N. L. R. B. v. Phoenix Mutual Life Insur-
ance Co., 167 F. 2d 983; Home Beneficial Life Ins. Co. v. N. L. R. B., 159 F. 2d 280;
N. L. R. B. v. Northern Trust, 148 F. 2d 24; Polish National Alliance v. N. L. R. B.,
322 U. S. 643.
It is found that Respondent is engaged in commerce within the meaning of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Title Examiners Union No. 19496 (AFL), which admits to membership em-
ployees of Respondent , is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
1. Preliminary statement
These proceedings involve principally the discharge on May 6, 1948, of three
employees : George Homenuk, John J. Wargo, and Kenneth C. Webb, Jr. In
viewing the matters set forth below it should be borne in mind that Respondent
is engaged in the highly competitive business of examining and insuring real
property titles and that its employees are engaged in work of a technical nature
which requires a considerable degree of skill and application. Some, and per-
haps most, of them, are lawyers or law students. The conditions of employment
and the professional standard of performance required are therefore not com-
parable generally to those existing among rank-and-file employees in the ordinary
factory or industrial enterprise.
Homenuk was employed by Respondent in the summer of 1945 and at the time
of his discharge was one of Respondent's oldest employees in point of seniority.
He does not appear to have had a legal education and was first assigned to the
simpler steps in the progressive stages of abstracting and title examination.
From an initial salary of $40 a week he progressed to $60 a week. He received
his last salary increase in the summer or fall of 1946.
Wargo was employed by Respondent in March 1946, as a part-time employee,
at a wage of 75 cents an hour. In September 1947, he became a full-time em-
ployee, and during his employment received wage increases which brought his
salary up to $1.50 an hour. He received his last wage increase in the summer,
of 1947.
Webb was employed by Respondent in March 1946, as a part-time employee at
75 cents an hour. In August 1947, he became a full-time employee, at a salary
of $1.50 an hour, having received two wage increases prior to this date. He
received no wage increases thereafter.
The work of Respondent's employees in its Cleveland office is performed chiefly
in Room 35 of the County Courthouse where the various records essential to a
title examination are kept. Some 90 or more local examiners and abstractors,
including the 10 to 12 employees of Respondent, use the facilities of this room-a
room approximately 60 feet in length and 16 to 18 feet in width. The room,
857829-50-vol. 85-86
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which is in the basement of the Courthouse, is subdivided into sections, and
some of the sections have racks of indexes ; others have alcoves between rows of
books and records, and tables or desks for the use of title examiners are set in
these alcoves. Occupying one of these desks is Frank J. Blazek, Respondent's
supervisor of work done by its employees at the Courthouse.
On or about April 13, 1948, Respondent changed its system of title examina-
tion. Prior to that date, it appears that different individuals were assigned to
various phases of a single job of title examination, so that no single individual
was responsible for the entire job. After April 13, assignments, for the most
part, were made on a basis of a single individual completing an entire operation.
The assignments were graded according to their difficulty and daily reports were
required which would furnish Respondent with an indication of the productivity
of each of its examiners. M. S. Hewgley, one of the Respondent partners and
active manager of Respondent's business, gave the following explanation of the
change:
We had had rather unsatisfactory production and I had been making a
study of our production to try to find ways of eliminating the riders, and by
"riders" I mean people who were letting the other fellow do their work as
much as they could get away with. In order to eliminate this condition I
felt that the best way to check up on them would be to make it necessary for
each man to do a complete operation, so that by having daily production
records I could tell what: they were doing.
On the morning of May d, acting on Hewgley's instructions, Blazek, without
explanation, handed Homenuk, Wargo, and Webb envelopes containing their
separation pay and discharge notices.
It is Respondent's contention that the discharges were prompted solely by
business considerations ; that an examination by Hewgley of the production rec-
ords of Wargo and Webb under the new system of daily reports convinced him
that their production was unsatisfactory ; that Homenuk lacked aptitude for the
work and was careless and lacking in diligence. The complaint alleges that the
three employees were discharged because on May 4 they had affiliated with the
Union.
The General Counsel's position is supported chiefly by Respondent's admitted
desire that its employees should remain unorganized and by the juxtaposition
in time of union affiliation and discharge.
2. Anti-union statements
On or about September 1945, when labor difficulties had caused a virtual shut-
down of operations among certain Cleveland firms engaged in title examination,
Jerald Mansell, president of the Union, together with a committee of three per-
sons, called on Hewgley in an effort to negotiate a union contract. An agreement
on the contract was reached, and it was understood that the union representa-
tives would present the contract thus agreed upon to its membership, presuma-
bly for ratification, and would report back to Hewgley on the following day.
Hewgley testified credibly concerning the matter : "Up to this day I have never
had a report from the union as to the outcome of the meeting, and the first com-
munication I had regarding that, if it can be called such, was Dir. Mansell's testi-
mony in this case." I agree, however, with Union's counsel that this incident
does not reflect any desire on the part of Respondent for a bargaining relationship
with the Union as such, since admittedly it was to Respondent's advantage to
LOUISVILLE TITLE AGENCY 1349
have the assistance of the Union in recruiting new employees for its expanded
business at a time when the operations of certain of its competitors were at a
standstill.
The next meeting between Respondent and union officials occurred in the latter
part of November 1947. Mansell and John J. Gilmore, president and vice-presi-
dent respectively of the Union , conferred with Hewgley on this date relative to
signing a union contract . It does not appear that the Union represented a
majority of Respondent 's employees at this time . Hewgley replied to the Union's
proposals that he saw "no advantage" in contracting with the Union. Gilmore
testified that Hewgley further stated that it "wouldn ' t be quite fair for him to
sign a contract and impose unionism on these people who were part time em-
ployees, and future attorneys . . ."; that he would regard his employees ' affiliat-
ing with the Union as an indication of failure on his part as manager of Respond-
ent's business , and dissatisfaction on the part of the employees ; and "that there
was no room in a successful organization for anyone who was dissatisfied." Man-
sell 's testimony on the conference was substantially the same. Hewgley testified
that the versions of the conference given in Gilmore's and Mansell 's testimony
were correct with one exception : "I am sure that I did not make any statement
that men joining the Union would be regarded as dissatisfied or unsatisfactory."
None of the three witnesses appeared to be testifying falsely, though , as is fre-
quently the case where several persons observe the same incident , their separate
versions of the conversation , recalled after a lapse of time, are not identical in all
respects . I am convinced that whatever Hewgley may have said about dissatis-
faction among the employees , he did not intend to convey either an express or
implied threat that he would resort to punitive measures to prevent their unioniza-
tion . His rejection of a union contract , coupled with expressions of the impro-
priety of organization among his employees , might very well have led the Union
representatives to conclusions more sinister in their implications than anything
Hewgley actually said or intended to say, and I believe this to be the case.. As
will be seen, Respondent on occasion has hired persons with full knowledge of
their union affiliation and has retained such persons in its employ, without
discrimination,
Another incident relied on by the General Counsel as establishing a violation of
Section 8 (1) (a) of the Act, is Blazek's statement to Wargo on or about February
1948:
Don't you have anything to do with the Union.
Mr. Hewgley is death on the subject.
Blazek testified that he did not recall having made the statement but Wargo's
testimony , quoted above, was convincing and is credited . Wargo testified that
Blazek made the statement during a discussion of union contract negotiations
with other title companies and the possibility of the Union calling a strike. The
discussion occurred at Blazek's desk one evening and a third employee was present
and participated in it. There is no indication that Blazek precipitated this
discussion although he was obviously brought into it. His remark was doubtless
prompted by Hewgley 's well-known desire that Respondent 's employees should
remain unorganized and was injudiciously phrased, but I am unable to agree with
Union 's counsel that it was "a warning , clear and precise as a command." And
inasmuch as it, together with Hewgley 's alleged statements made to union repre-
sentatives at the conference in 1947, are the sole verbal expressions contained in
the entire record of these proceedings which are capable of being construed as
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
containing a coercive element, I do not conclude that they independently consti-
tute a violation of Section 8 (a) (1).
An incident involving an alleged questioning by Hewgley of a prospective
employee concerning his union affiliation is disposed of briefly. I do not credit
the testimony of James L. Werner to the effect that when he applied for employ-
ment with Respondent on or about May 11, 1948, Hewgley asked him if he
belonged to a union. I do credit Hewgley's testimony that on this occasion
Werner raised the question of unions by asking if he would be required to join a
union upon being employed by Respondent, and that Hewgley replied that he
would not and that it was preferred that he not join a union.
While the matters related above do not, in my opinion, amount to a violation
of Section 8 (a) (1) of the Act, they unquestionably do establish what Hewgley
freely admitted, namely, that Respondent was strongly opposed to its employees
becoming affiliated with a labor organization.
3. Union activities of the dischargees; Respondent's knowledge
Webb, Wargo, and Homenuk testified that they became interested in affiliating
with the Union in February 1948, when one of Respondent's employees, Gail
Halley, was discharged. It is not alleged that union activities had anything to
do with Halley's discharge and there is no evidence from which such an inference
could be drawn, but apparently the discharge aroused resentment among some
of the employees. The three dischargees herein involved did not, however, sign
application cards for membership in the Union until the latter part of April, after
the new system of title examination had been instituted, and did not actually
become members until May 4. At about the time he signed an application card, and
prior to actual affiliation with the Union, Homenuk called Eichenberg, supervisor
of Respondent's Elyria, Ohio, office-where he had worked for a substantial period
of time-and told him that he was applying for union membership and perhaps
"sticking his neck out," inasmuch as he might get fired. According to Homenuk,
Eichenberg replied, "You can't get fired because under the Taft-Hartley Bill you
can't get fired for joining a Union." This constitutes the sole direct evidence
that Respondent had knowledge of the union affiliation of any one of the three
dischargees prior to the date of their discharges. And there is no evidence
whatever to associate knowledge by Eichenberg with the actual discharges.
On May 4, at a regular monthly meeting of! the Union attended by some 60 to 80
of its members, most or all of whom were title examiners who made use of the
facilities of the County Courthouse in connection with their work, Wargo,
Homenuk, and two other employees of Respondent, Miller and Fair, were
accepted as members of the Union and introduced to those present at the meeting.
Webb did not attend this meeting, but on the same date paid his initiation fees
or dues to Dean T. Lemley, a former employee of Respondent and representative
of the Union, in Room 35 at the Courthouse.
Webb testified that payment was made in one of the alcoves and that Blazek
came up during the transaction and saw Lerhley hand him a receipt. A close
reading of Webb's entire testimony on the matter convinces me that there is no
showing that Blazek overheard or had opportunity to overhear any conversation
on this occasion which would disclose to him the nature of Webb's transaction
with Lemley, and since he was standing some 5 feet away from Lemley and
Webb at the time Lemley handed the latter his receipt, it is unlikely that he
could have identified the paper as a receipt for union dues. Aside from this
incident, the main other support for establishing company knowledge is the fact
LOUISVILLE TITLE AGENCY 1351
that on the day following their affiliation with the Union, Webb, Wargo, Homenuk,
and presumably Fair-Miller was in the Elyria office on that day-received the
congratulations of other abstractors and title examiners, most of whom were
members of the Union, in and about Room 35 at the Courthouse.
When it is recalled that Room 35 is some 60 feet in length and that a consider
able portion of it is subdivided into alcoves separated by racks of the various
records used by all the local title examiners in their work, it does not seem
reasonable to conclude that merely because Webb, Wargo, and Homenuk received
the congratulations of certain individuals in this room, Blazek, who occupied
a desk in one of the alcoves, was necessarily made aware of this activity or had
any knowledge of its significance. Wargo and Homenuk having already been
presented to the membership of the Union at the meeting on the previous evening,
it is unlikely that they would again be approached and congratulated during
working hours by large numbers of persons.' Evidence that any of these felicita-
tions occurred in the presence of Blazek in such manner that it should be inferred
that he observed them and understood their significance, is meagre.
Wargo, when asked on direct examination if at any time while receiving
congratulations on his union affiliation he saw Blazek, testified :
Yes. One particular instance I recall, Emmett Nolan, an examiner from
one of the other companies came up and congratulated me. At the time
we were standing at the front of the rack of boxes that separated Mr.
Blazek, the alcove Mr. Blazek was sitting in from the next alcove, and
when be congratulated me on "glad to have you with us," I made it a point
to look to see if Blazek had heard the remark. He showed no sign of it
but he was sitting there at the table.
As a matter of fact, as Wargo admitted, Blazek had his back turned at the time.
Homenuk testified that on the morning of May 5, while he was sitting at the
same table with Blazek, engaged in abstracting a deed, he was addressed by
another abstractor who hollered quite loudly, "Hello, brother," or "Hi, brother,"
and he, Homenuk, replied, "Hello."
This is the sole evidence that Webb, Wargo, and Homenuk received congratula-
tions on acquiring union membership in the presence of Supervisor Blazek.
Bernard C. Robinson, a title examiner not employed by Respondent, told
Blazek on May 5 that he understood "some of your boys joined the Union."
Blazek asked for the names of those who had joined but Robinson replied that
he did not know them. This incident at most seems to have no significance
further than to establish knowledge of union activities generally, and to indicate
a curiosity on Blazek's part as to the identity of those affiliating with the Union-
a curiosity which Robinson did not satisfy.
Finally, as evidence of company knowledge, there is the testimony of Webb
and Wargo that in handing them their separation pay and discharge notices on
May 6, Blazek said, "That's all, brother," and walked away. It is argued that
Blazek's use of the term "brother," a form of salutation which he did not normally
use, was a deliberate and sarcastic reminder of their union affiliation, inasmuch
as their fellow union members had used this term frequently in congratulating
them on the previous day. However, except for the one incident referred to in
the testimony of Homenuk, there is no showing that this form of salutation was
used in Blazek's presence on May 5. Blazek's denial that he used this term in
i Webb, when asked how many persons congratulated him on this occasion, testified,
"Oh, possibly a half dozen downstairs [Room 35] and throughout the building, wherever i
would meet one who would recognize me."
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
addressing Webb and Wargo , a denial which I do not credit , tends to support
the General Counsel's contention , but this form of address is by no means unique
in its associations , and the fact that Blazek used it on this occasion seems a
slender thread upon which to hang a finding of company knowledge . Blazek
impressed the undersigned as a somewhat dour and brusque individual, and,.
bearing in mind that he was not on very friendly terms with the dischargees,
because of matters not pertaining to union activities , his manner of addressing
them on the occasion of their discharge does not appear out of character.
Despite the meagre and inconclusive character of the evidence set forth above,.
in view of the timing of the discharges and Respondent's antiunion attitude,
company knowledge of the union affiliation of the dischargees still might properly
be inferred had Respondent failed to give a plausible explanation for its action.
in discharging them.
4. Circumstances of the discharges ; Respondent 's defense
It seems clear that when Respondent changed its system of operations on or
about April 13, its abstractors and title examiners were put on notice that their
work would thereafter be subjected to close scrutiny and that if their production
failed to be maintained at the required level their job tenure would be imperiled.
There is no reason to doubt Hewgley's testimony that the change was made to,
determine whether or not there were "riders " among the employees which would
account for low production . Wargo testified that at the time of the changeover,
Hewgley told him that under the new system each man "would be responsible.
for the entire examination" ; that there had been some "free riders " ; and that
"those who didn't produce wouldn't be around very long." If he was less specific-
in his comment on the changeover addressed to other employees , nevertheless
the implications of the change must have been clear to all the employees, and it
does not appear very material that prior to the changeover neither Webb nor
Wargo had been specifically warned nor singled out for adverse criticism, but
on the contrary had received some reassurances as to job tenure from Blazek-
and, perhaps , Hewgley. Presumably , if Hewgley already had in his possession,
tangible proof that there were "free riders," and the identity of those not pro-
ducing satisfactorily , he would not have instituted the new system of individuar
responsibility.
I3ewgley testified that on the Saturday preceding the discharges of May 6,.
he returned to Cleveland after having been away from his office and began a,
survey of production under the new system, and that as a result of his survey
he concluded that certain of his employees, including Wargo, Webb, and Homenuk,_
were not giving satisfactory service. On May 5 he summoned Blazek to his office,.
advised him of the result of his study , and asked him if he could "explain the
unsatisfactory production records of the men whose records were not satisfactory,.
if he had ameliorating circumstances that would entitle us to keep those men,
on the job ." Hewgley further testified that "He [Blazek ] did not have any for
Webb, Wargo, and Homenuk, and it was determined at that conference that we
would discharge these three men." Blazek testified to similar effect. That same
evening, after having visited the Courthouse earlier, Hewgley called Blazek at
the latter's home and instructed Blazek to come by his office the following morning
and pick up the discharge notices. There is no explanation why he chose this
particular time to make the call, other than his testimony that when he visited
the Courthouse earlier he had discovered some new evidence of Homenuk's
alleged carelessness in the handling of assignments.
LOUISVILLE TITLE AGENCY 1353'
After they -had been served with their discharge notices on the following,
morning, May 6, Webb, Wargo, and Homenuk called first at the union office and
later met with Hewgley at the latter's office. One of the men asked Hewgley why
they had been discharged. Webb testified that Hewgley replied : "I warned
all of you about production when we started this system. You had full knowledge-
of it." Webb further testified that Hewgley "went on to explain the difference
in our production. He had a sheet in front of him in which he recited the differ-
ent jobs worked on by the different men and showing why we were discharged."
Wargo complained that he did not think that the 3 weeks since the changeover-
was sufficient time for proving low production, and all three of the dischargees
complained of a lack of cooperation on the part of Blazek. The conversation.
definitely established that friction had existed for some time between each of the,
three men and Blazek, and Webb and Wargo, at least, mentioned specific in-
stances where they felt they had been dealt with unfairly by Blazek. At one
point, according to Webb, Hewgley said, "Well, tell me frankly what can I do?
How can I replace Blazek?" 2 Hewgley told Webb and Wargo that he would
consider the matter of their production ; that they should try and find work with
one of the other title companies ; and if they failed to find other employment
within a few weeks, to come back and see hin a He told Homenuk that he did,
not consider Homenuk suited to the business of title examination and advised.
him to seek employment in other fields. He denied to the men that he was aware
of their union affiliation.'
As regards Webb and Wargo, in support of Hewgley's testimony that they were-
discharged because of low production, Respondent produced and authenticated-
through the testimony of the dischargees themselves, all of their production rec-
ords from the date of the changeover in April to the date of the discharge.-
Respondent also produced the production records during the same period of two
others of its title examiners, for the purpose of showing a higher level of produc-
2 Following his conversation with the dischargees , Hewgley addressed a memorandum:
to Blazek urging a more tolerant and courteous attitude toward his subordinates.
8 Neither Webb nor Wargo made application for reinstatement. Webb testified that
be did not come back to see Hewgley because he became angry when he saw Blazek_
subsequent to his discharge and the latter " didn 't even want to speak or say hello ;"
and because when, later, he asked Hewgley for a recommendation , Hewgley said he had,
better not give him a reference "under conditions as they were then." Hewgley alluded:
to what seems to have been a new rule of closing the Courthouse at 4: 30 p. m., whereas-
previously his employees had frequently worked evenings , a change which Hewgley at-
tributed to union pressure. Hewgley testified credibly that a further reason for his
refusal was that the complaint in these proceedings had been filed prior to Webb's.
inquiry-Hewgley probably referred to the filing of the charge-and he informed Webb
"that regardless of how charitable I might be in what I might want to say for him,
that if I said anything good for him it could be used against me in this hearing, and-
that for that reason I would not give him a recommendation ." Webb informed Wargo
of his conversation with Hewgley.
4 These findings are based principally on Webb 's testimony . Hewgley ' s own version
was not substantially different . He testified :
Mr. Webb and Mr. Wargo at the meeting in my office impressed me as being
rather sincere in feeling that they had been unjustly treated, and because of that
fact when they asked me if I would reconsider their cases , I suggested to them,
that under the circumstances , since they had expressed the idea that they couldn't,
get along with Mr. Blazek at the Courthouse , that it would be much better for
them if they would secure employment elsewhere , and I told both Webb and Wargo
that if they would go out and look for other employment and were unable to find
it and would come back and see me in ten days or two weeks , that I would at that
time go into the matter thoroughly and see if we could justify returning them to
their jobs.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion . These records are, on the whole, inconclusive because of the many vari-
ables in the nature and problems of title examination, but tend to support
Respondent's position. Also, Respondent's voluntary action in producing these
records, together with the oral testimony supporting them, and its apparent will-
ingness to make available to opposing counsel all of its production records for
the period in issue, is persuasive of Respondent's good faith. It is argued by
Union's counsel that "an unfavorable comparison can always be drawn if the
choice of means is left to the Respondent for determination on records that it
produces to prove its own contention." True, Respondent would be expected to
produce the records which would most strongly support its position, but if there
were title examiners whose production over the period in question was as low
or lower than that of Webb and Wargo, the General Counsel had at his disposal
means for obtaining those records. The "choice of means," therefore, did not
lie entirely with Respondent. There is the additional factor that with the excep-
tion of Halley, who was discharged in February, Webb, Wargo, and Homenuk,
of all Respondent's employees, were the only ones who did not receive a wage
increase in the period between January 1, 1948, and the date of discharge. On
the basis of the entire showing it must be conceded, I think, that Respondent
might reasonably have concluded that Webb and Wargo were not rendering
satisfactory service.
As regards Homenuk, Respondent's position is even more strongly supported.
While Homenuk was one of Respondent's oldest employees in point of seniority,
he admittedly was not .a qualified title examiner when he was employed by Re-
spondent in 1945, and was assigned to the simpler phases of title examination.
Hewgley testified that his services were satisfactory as an indexer but when, in
1947, Respondent no lgnger had need of him in this capacity and he was assigned
to what presumably was more difficult work, his performance was so unsatis-
factory that Blazek complained that he could not use him any more and he was
sent to Respondent's branch office in Elyria, Ohio. There, also, his work was
unsatisfactory to the degree that Eichenberger, supervisor of that office, requested
that he be transferred back to Cleveland. In the latter part of 1947 or early
1948, he was transferred back to the Cleveland office. At this time, according to
Hewgley, Blazek complained, "What did you bring him back here for? I can't
use him and you ought to assign him to something else.... Give him to some-
body else or figure out something else for him to do."
When the changeover was made in April, Hewgley assigned Homenuk to work
with Benjamin A. Branson, one of the more experienced title examiners. Home-
nuk admitted that Hewgley told him on this occasion, " You are going to work
with Mr. Branson now and try, to learn something, or you will get your ass out."
Homenuk also admitted that Hewgley, on an occasion in April, criticized him
for his failure to note on the chain sheet the lack of witnesses to a certain deed,
and warned him not to let it happen again.
Hewgley testified that some 2 weeks after Homenuk had been assigned to work
with Branson, he inquired of Branson concerning his opinion of Homenuk's
work and was told by Branson that Homenuk "worked very well in the fore-
noons, that he [Branson] couldn't find him in the afternoons, that he had tried to
get George interested in learning how to do the job and didn' t appear to be able
to do it." That Branson made such a report to Hewgley is corroborated in the
testimony of Branson, who was a member of the Union at the time lie was em-
ployed by Respondent in 1945 and has remained a member, apparently in good
standing , ever since.
LOUISVILLE TITLE AGENCY 1355
It is argued that had Homenuk's performance of his duties been as unsatisfac-
tory as contended by Respondent, Respondent would not have retained him as
long as it did. This is an argument frequently advanced in cases of this nature
where the time of the discharge is nearly coincident with union affiliation, but
in the case at bar it loses weight because of the specific warnings administered
to Homenuk as late as April 1948, at a time when his union activities could not
have been a motivating factor.
It is further argued with respect to all three of the dischargees, that their un-
disputed and credible testimony that in lay-offs which had occurred in the past,
they had retained their positions while employees of greater seniority were laid
off, attests to their competency. This argument also loses weight because there
is no showing of the circumstances of these earlier lay-offs nor of the identity of
those of greater seniority who were laid off, and therefore no basis exists for
determining what factors other than seniority were involved if any; nor is
there any showing that Respondent customarily follows a system of seniority in
determining the order of lay-offs.
Finally, it appears that the discharge slips originally had typed on them the
date May 7, and that the numeral 6 was interposed over the 7 before they were
delivered to the dischargees by Blazek on the morning of May 6. Assuming that
this was not merely a clerical error, as Hewgley indicated it was, I am still un-
able to see what support it lends to the General Counsel's case. If, as Hewgley
and Blazek testified, the decision to discharge the three men was made at
Hewgley's office on May 5, it being left in Hewgley's hands to decide when to make
the discharges effective, and Hewgley that same afternoon had the discharge
slips made out, as he testified he did, and intended to make the discharge
date May 7 instead of May 6, the most that could be inferred from the change
is that later on that same day he discovered the union affiliations of the three
men and accelerated their discharges by one day. And while the abrupt manner
in which the discharges were made, and Hewgley's not altogether satisfactorily
explained action in calling Blazek at his home on the evening of May 5, after
having parted with him only a few hours earlier at the Courthouse, tend to
create suspicion of the bona fides of Respondent's position, Respondent does
not appear to have departed from its usual practice in not waiting to the end of
the workweek to make the discharges effective.
While much testimony was taken on the dischargees' propensity for coffee
drinking during working hours, little space will be given to the matter here. I
think there is no doubt that Hewgley frowned on this practice and the employees
knew it, but the rule against having coffee off the job during working hours was
honored more in the breach than in the observance, and the dischargees appear
to have been no worse offenders in this respect than some others of Respondent's
employees . It must be conceded, however, that whereas the practice of taking
time out for coffee might be condoned in the case of employees whose work was
satisfactory, it might well be regarded more critically in the case of employees
under the suspicion of not maintaining a satisfactory level of production.
5. Conclusions
As Respondent concedes in its brief, the very juxtaposition in time of the union
affiliation of the three employees and their discharges, serves to create a strong
inference of a causal relationship between these two incidents. The inference
is strengthened by Respondent's admitted and expressed desire that its employees
should remain unorganized, and the abrupt and not altogether satisfactorily
explained manner in which the discharges were effectuated.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Such inferences as are reasonably derived from these circumstances are,
however, in the opinion of the undersigned, more than offset by a combination of
factors supporting Respondent's position, among them the paucity of probative
evidence tending to show that Respondent had knowledge of the union affiliation
of the dischargees prior to the date the discharges were decided upon, met by a
positive and seemingly sincere denial of such knowledge (there was nothing in
Flewgley's demeanor as a witness to indicate that he was testifying falsely) ;
the explicit warning given Homenuk a few weeks prior to his discharge at a
time when antiunion bias could not have been a motivating factor ; the warning
of discharge both express and implicit in the changeover inaugurated by
Respondent in April, directed toward any employee who failed to maintain a
satisfactory level of performance ; the persuasive showing by Respondent that
after such warnings had been given, the work records of the dischargees were
such that Respondent might reasonably have concluded that they were not
satisfactory employees ; the reasoned and reasonable manner in which Hewgley
explained to the dischargees the basis upon which their discharges were predi-
cated, and his offer to re-evaluate the production records of two of them and
to give them further consideration if such further study justified it; the fact
that two employees, Miller and Fair, who affiliated with the Union at the same
time as Webb, Wargo, and Homenuk, were not discriminated against, coupled
with the fact that Branson, apparently one of Respondent's oldest and most
esteemed employees, had been affiliated with the Union to Respondent's knowledge
during the entire period of his employment ; and the failure of the dischargees
during the last year of their tenure of employment to obtain the wage increases
normally accruing to employees of like periods of employment whose services
were regarded as satisfactory. Not even these and other supporting factors
serve to erase completely suspicions arising out of the timing of the discharges,
but suspicions do not make a case and as I view the record in. its entirety, I am
not persuaded that the General Counsel has sustained his position by a
preponderance of the evidence.
Accordingly, I must recommend the dismissal of the complaint.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act.
2. The Respondent has not engaged in any of the alleged unfair labor practices
within the meaning of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that the complaint against the Respondent Company, M. S.
Flewgley, W. P. Newton, and Ethel P. Hewgley, d/b/a Louisville Title Agency,
Cleveland, Ohio, be dismissed in its entirety.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Rochambeau Building, Washington 25, D. C., an original
and six copies of a statement in writing setting forth such exceptions to the
LOUISVILLE TITLE AGENCY 1357
Intermediate Report and Recommended Order or to any other part of the record
or proceeding ( including rulings . upon all motions or objections) as he relies
upon, together with the original and six copies of a brief in support thereof;
and any party may, within the same period, file an original and six copies of a
brief in support of the Intermediate Report and Recommended Order . Immedi-
ately upon the filing of such statement of exceptions and/or briefs , the party filing
the same shall serve a copy thereof upon each of the other parties. Statements
of exceptions and briefs shall designate by precise citation the portions of the
record relied upon and shall be legibly printed or mimeographed , and if mime-
ographed shall be double spaced. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section
203.85. As further provided in said Section 203.46, should any party desire
permission to argue orally before the Board, request therefor must be made in
writing to the Board within ten ( 10) days from the date of service of the order
transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions , recommendations , and recom-
mended order herein contained, shall , as provided in Section 203.48 of said
Rules and Regulations , be adopted by the Board and become its findings, con-
clusions , and order, and all objections thereto shall be deemed waived for all
,purposes.
Dated at Washington , D. C., this 16th day of February 1949.
WILLIAM E . SPENCER,
Trial Examiner.