Marlin-Rockwell Corp.

National Labor Relations Board - Board Decisions

Jan 19, 1940

19 N.L.R.B. 648 (N.L.R.B. 1940)

In the Matter of MARLIN-R OCKWELL CORPORATION and INTERNATIONAL
UNION, UNITED AIITOMOBILE WORKERS OF AMERICA, LOCAL #338
Case No. C-967.-Decided January 19, 1940
Ball Bearing Manufacturing Industry-Interference , Restraint , and Coercion:
threats that plant would be closed if union should win impending election ;
inquiries into union activities of employees-Collective Bargaining : refusal to
bargain following certification of the union by the Board ; contentions that
refusal was justified on grounds that the majority contemplated by the Act is a
majority of those eligible to vote, and that employees laid off after the eligibility
date and before the election date participated in the election , held to be without
merit ; respondent ordered , upon request , to bargain with union-Discrimination:
lay-offs for union membership and activitly during a general plant reduction ;
charges of, sustained as to two employees , dismissed as to seven-Reinstatement
Ordered: as to employees laid off for union membership and activities-Back
Pay: awarded employees discriminatorily laid off-Complaint: dismissed as to
seven employees found not to have been discriminated against.
Mr. Peter. A. Crotty, for. the Board.
Slee, O'Brian, Hellings & Ulsh,, by Mr. Dana B. Hellings and Mr.
John Van Siclcel; of Buffalo, N. Y., for.,the respondent.
Mr. Daniel B. Shortal, of Buffalo , N. Y., for the U. A. W.
Mr. Roscoe L. Barrow, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Union, United Automobile Workers of America, Local #338, herein
called the U. A. W., the National Labor Relations Board, herein called
the Board, by Henry J. Winters, Regional Director for the Third
Region (Buffalo, New York), issued its complaint dated August 10,
1938, against Marlin-Rockwell Corporation, Jamestown, New York,
herein called the respondent, alleging that the respondent had engaged
in and was engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (1), (3), and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint, accompanied by notice of
hearing, were duly served on the respondent and the U. A. W.
19 N. L. R. B., No. 71.
648
MARLIN-ROCKWELL CORPORATION 649
With respect to the unfair labor practices, the complaint alleged in
substance : (1) that on or about June 16, 1938, and at all times there-
after, the respondent refused to bargain collectively with the U. A.W.
as the representative of its employees in an appropriate unit, although
the U. A. W. was the designated representative of a majority of such
employees; (2) that the respondent laid off Bernard J. Polinski,
Harry W. Rapp, Gunnard Nelson, Frances Stead, Elmer E. Melene,1
Francis B. Winans, Herbert S. Anderson, Junius Brown, Edward
Lane, and Carl G. Carlson,2 and at all times thereafter refused to em-
ploy them, because of their membership in and their activities in be-
half of the U. A. W.; and (3) that by the foregoing acts, by warning
its employees to refrain from entering into union activities, and by
other acts, the respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed by Section 7 of
the Act.
By its answer, dated August 19, 1938, the respondent denied that it
was engaged in interstate commerce within the meaning of the Act and"
that it had engaged in the alleged unfair labor practices.
Pursuant to notice and amended notice duly served on the parties,
a hearing was held on August 25, 26, 29, and 30, 1938, at Jamestown,
New York, before William M. Hepburn, the Trial Examiner duly
designated by the Board. The Board, the respondent, and the U. A. W.
were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
During the course of the hearing counsel for the Board moved to dis-
miss the complaint in so far as it alleged that the respondent dis-
criminatorily laid off Edward Lane. The motion was granted. The
Trial Examiner also made several rulings on motions and on objec-
tions to the admission of evidence. The Board has reviewed the Trial
Examiner's rulings and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
On October 10, 1938, the Trial Examiner filed his Intermediate Re-
port, copies of which were duly served upon the respondent and the
U. A. W., finding that the respondent had engaged in and was engag-
ing in unfair labor practices, within the meaning of Section 8 (1),
(3), and (5) and Section 2 (6) and (7) of the Act. He recommended
that the respondent cease and desist from its unfair labor practices;
bargain collectively with the U. A. W. as the exclusive representative
of the employees in the appropriate unit; and reinstate with back
' In the charge and complaint the surname is spelled Meleen. In the transcript of
the hearing the above spelling is used.
' In the complaint this employee was designated Carl G. Anderson . In the charge, the
respondent's answer, and the transcript of the hearing, he is designated Carl G. Carisom.
leaving no doubt that Carlson was the name intended.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay Harry W. Rapp, Charles Gunnard Nelson, Frances Stead, Elmer
Melene, Francis B. Winans, and Herbert S. Anderson. He recom-
mended, further, that the complaint be dismissed in so far as it
alleged that the respondent discriminatorily laid off Bernard J.
Polinski, Junius Brown, and Carl G. Carlson.
On November 10, 1938, the respondent filed exceptions to the In-
termediate Report. Pursuant to notice, a hearing was held before
the Board at Washington, D. C., on October 17, 1939, for the purpose
of oral argument. The respondent was represented by counsel and
participated in the argument.
The Board has considered the exceptions to the Intermediate Re-
port and, in so far as they are inconsistent with the findings, conclu-
sions, and order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT 3
Marlin -Rockwell Corporation is a Delaware corporation having
its office and principal place of business in Jamestown , New York. It
has plants located in Jamestown , New York, and Plainville , Connecti-
cut. Only the Jamestown plant is involved in these proceedings.
The respondent is engaged at that plant in the manufacture and sale
of ball bearings . The principal raw materials used in its operations
are steel tube, bar stock , forgings , strip steel , steel balls, and ball stock.
From July 1, 1937, to June 30, 1938, raw materials costing $426,000
were imported to the respondent 's Jamestown plant. Approximately
90 per cent of the raw materials were shipped to the respondent from
points outside New York State . During the same period the respond-
ent manufactured bearings valued at over $2,000,000. Approximately
75 per cent of the respondent 's finished products are shipped to cus-
tomers outside New York - State.
The respondent employs 17 salesmen who solicit orders throughout
the United States. It advertises in magazines having a Nation-wide
circulation. The respondent owns and controls the M . R. C. Bearings
Service Company , a sales and service organization maintaining offices
in cities throughout the United States.
II. THE ORGANIZATION INVOLVED
United Automobile Workers of America is a labor organization
affiliated with the Congress of Industrial Organizations. On June 10,
1938, the Board certified it as the representative for the purposes of
8 These findings as to the business of the respondent are based on a stipulation of
facts.
MARLIN-ROCKWELL CORPORATION 651
collective bargaining of all the employees in the respondent's James-
town, New York, plant, excluding clerical, supervisory, executive and
sales employees, engineers, draftsmen, and apprentices.'
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
The complaint alleges that on or about June 16, 1938, and at all
times thereafter, the respondent refused to bargain with the U. A. W.
as the exclusive representative of the employees in a unit appropriate
for the purposes of collective bargaining, although the U. A. W. was
the designated representative of a majority of such employees. The
respondent's answer admits that the respondent refused to bargain
collectively with the U. A. W., but denies that the U. A. W. has been
designated in accordance with law by a majority of the employees in
the appropriate unit as their agent for the purposes of collective bar-
gaining.
1. The appropriate unit
In a prior representation case,5 discussed more fully below, in-
volving these same parties, the Board found that all employees of the
respondent at its Jamestown, New York, plant, excluding supervisory,
clerical, executive, and sales employees, engineers, draftsmen, and
apprentices, constitute a unit appropriate for the purposes of col-
lective bargaining and that said unit will insure to the employees of
the respondent the-full benefit of their right to self-organization and
to collective bargaining and otherwise will effectuate the policies of
the Act.
While it does not contest the propriety of the above unit in general,
the respondent now objects to the exclusion of apprentices from the
unit found to be appropriate.° The apprentices, who numbered five
or six at the time of the hearing in the representation case, on October
18 and 19, 1937, are employed under a contract between the respondent,
the State Department of Education, the Jamestown Board of Educa-
tion, and the guardian of the particular apprentice. Under the con-
tract the respondent agrees to employ the apprentice for a maximum
*Matter of Marlin-Rockwell Corporation and Local No . 338, United Automobile Workers
of America, 7 N. L. R. B. 836.
S Matter of Marlin -Rockwell Corporation and Local No. 338, United Automobile Workers
of America, 5 N. L. R. B. 206.
('During the oral argument on October 17, 1939, counsel for the respondent stated
that set-up men and laboratory employees were excluded from the election conducted by
the Board. In its Decision and Direction of Election issued on February 11, 1938, the
Board included set-up men and laboratory employees in the appropriate unit. The record
does not show that non-supervisory set-up men and laboratory employees were refused
permission to vote in the election.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period of 4 years, or 8,000 hours of work, at a stipulated rate of pay,
which is altered each 6 months, and also agrees to instruct the appren-
tice in the mechanics of the particular trade. Because of the appren-
tices' peculiar relations under this contract with the respondent and
the State and municipal agencies mentioned above, there is basis for
the view that the apprentices do not have the same problems of collec-
tive bargaining which those employees included in the unit found to be
appropriate have. We therefore find that the apprentices should be
excluded from the bargaining unit.?
We find that all employees of the respondent at its Jamestown,
New York, plant, excluding supervisory, clerical, executive, and sales
employees, engineers, draftsmen, and apprentices, constitute a unit
appropriate for the purposes of collective bargaining, and that 'said
unit will insure to employees of the respondent the full benefit of their
right to self-organization and to collective bargaining and otherwise
will effectuate the policies of the Act.
2. Representation by the U. A. W. of a majority of the employees
in the appropriate unit
On August 5, and on September 24, 1937, the U. A. W. filed its
petition and amended petition, respectively, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of the respondent at its Jamestown plant. On August 21, 1937,
a consent election was held. Of 429 employees eligible to vote in the
consent election, 202 voted for and 129 voted against the U. A. W.;
3 ballots were void; 95 employees failed to vote. After the respondent
had refused to recognize the U. A. W. as the bargaining agent,'
the Board, on September 21, 1937, ordered an investigation and author-
ized the Regional Director to conduct it and to provide for an appro-
priate hearing upon due notice. Pursuant to notice, a hearing was
held on October 18 and 19, 1937. The Board, having found the appro-
priate unit to be slightly different from that prevailing in the consent
election, and it appearing that a large number of employees failed to
vote in the consent election because of an unavoidable delay in open-
7 Cf. Matter of Lightner Publishing Corporation of Illinois and Chicago Printing Press-
men's Union No. 3, Chicago Typographical Union No. 16, 12 N. L . R. B. 1255; H. E.
Fletcher Co. and Granite Cutters' International Association of America , 5 N. L. R. B. 729;
Matter of Bethlehem Shipbuilding Corporation , Limited and Industrial Union of Ship-
building Workers of America, Local No. 5, 11 N. L. R. B. 105, 151; Matter of Hyatt
Bearings Division, General Motors Corporation and Hyatt Employees Association, Inc.,
14 N. L. R. B. 441.
Y Although the reason for the respondent 's refusal to abide by the results of the consent
election is not clear from the record , the respondent later took the position that the
"majority" required by the Act is a majority of those eligible to vote in the election.
The U. A. W. in the consent election obtained a majority of those voting and not a
majority of those eligible to vote therein.
MARLIN-ROCKWELL CORPORATION 653
ing the polls, refused to certify the U. A. W. on the basis of its selec-
tion by a majority of those voting in the consent election, and directed
that an election by secret ballot be conducted.9
On February 28, 1938, the respondent filed its objections and excep-
tions to the balloting and the Intermediate Report. The objections
and exceptions were amended at a hearing hereinafter mentioned. The
exceptions, as amended, were in substance that (1) the number of votes
cast for the U. A. W. does not constitute a majority of those employees
eligible to vote in the election; (2) no representative of the respond-
ent was permitted to observe the balloting; (3) certain employees with-
in the unit who were laid off after the eligibility date, September 24,
1937, were permitted to vote in the election; and (4) the ballots of
certain employees, who, the respondent contends, were eligible to vote,
were challenged and were not counted in the final tally.
Pursuant to notice, a hearing was held on the objections and excep-
tions on April 8, 1938. On June 10, 1938, the Board issued its certifica-
tion of representatives. - As to the objections, the Board ruled : (1) that
a majority of those voting is the majority required by the Act; (2)
that there was no abuse of discretion in refusing to allow a representa-
tive of the respondent at the poll; (3) that the 174 employees laid off
after September 24, 1937, 119 of whom voted in the election, retained
their employee status and had an interest in the election since the
business of the respondent is seasonal and the policy of the respondent
is to reemploy those employees laid off, as business warrants; and (4)
it was unnecessary to count the challenged ballots since the U. A. W.
would have had a majority of those voting even if all the challenged
ballots were counted against the U. A. W. Having overruled the
obejctions, the Board certified the U. A. W. as the exclusive representa-
tive of all the employees in the appropriate unit.19
The respondent offered no new evidence at the hearing held during
August 1938 to support the above objections. We, therefore, affirm our
rulings in the certification of representatives mentioned above.
We find that on February 25, 1938, and thereafter, the U. A. W.
had been designated by a majority of the respondent's employees in
the appropriate unit as their representative for the purposes of col-
lective bargaining. Pursuant to Section 9 (a) of the Act, it was,
therefore, the exclusive representative of all the employees in such
unit for the purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other conditions of employment.
9 Matter of Marlin-Rockwell Corporation and Local No. 338, United Automobile Workers
of America, 5 N. L. R. B. 206.
10 Matter of Marlin-Rockwell Corporation and Local No. 338, United Automobile Workers
of America, 7 N. L. R. B. 836.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The negotiations
Following the Board's certification, a representative of the U. A. W.
wrote to the respondent on June 14, 1938, requesting an appointment
for the purposes of collective bargaining. The manager of the respond-
:ent on June 16, 1938, replied by letter as follows :
Answering your letter of June 14, 1938, there would seem to be
no point in meeting with you as we would only have to repeat
that we cannot recognize you as the sole bargaining agency for all
of our employees. In our counsel's opinion, the decision of the
Board is not consistent with Section 9 (a) of the law.
In its brief the respondent states that it refused to recognize the
U. A. W. as the bargaining representative on the following grounds :
(1) the Board erred in excluding apprentices from the appropriate
unit; (2) the ballots of four employees were challenged and were not
counted; (3) the agent conducting the election did not allow the
respondent to have a representative present at the election; (4) the
Board permitted the U. A. W. to offer proof of membership while
refusing the respondent a subpoena daces teceum for all the records of
the U. A. W.; (5) the majority contemplated by the Act is a majority
of those eligible to vote in the election and not a majority of those
voting therein; and (6) persons who were on the pay roll as of Septem-
ber 24, 1937, the eligibility date, who were laid off prior to the election,
were permitted to vote in the election.
The first three grounds were considered in our Certification of
Representatives, mentioned above; they merit no further discussion
here since no new evidence in support of them has been offered.
As to the fourth ground, our Certification of Representatives was
based on the results of an election held by the Board and not upon
any other proof of membership offered by the U. A. W. Therefore
the respondent is prejudiced neither by the Board's refusal to issue
the subpoena daces tecum nor by the Board's receiving evidence of
membership in the U. A. W. The U. A. W. was not compelled to
disclose its membership lists and other records because the. Board
recognizes that the release of such information might expose the
members of a union to possible discrimination by an employer."
The membership rolls would have to be produced for examination,
however, if.they were to serve as a basis for a certification of repre-
sentatives without an election being held.
The fifth ground has been considered by the Board in numerous
other cases. The Board has decided that a majority of those voting
"Matter of Samson Tire and Rubber Corporation and United Rubber Workers of
America, Local No.44J, 2 N . L. R. B. 148.
MARLIN-ROCKWELL CORPORATION 655
in the election , though less than a majority of those eligible to vote
therein, determines the bargaining representative . This view accords
with the principle universally applied in ordinary elections under
our democratic form of government . Practical operation of the
Act requires that such a principle should be applied also in an election
among the employees of a company for the purpose of selecting
bargaining representatives.12
As to the sixth ground, namely , that persons who were not "em-
ployees" at the time of the election were allowed to vote, we disposed
of this matter in the Certification of Representatives in this case.
We will recapitulate the facts here , however. In the Decision and
Direction of Election , discussed above, we selected September 24,
1937, the date on which the U. A. W. filed its amended petition for
investigation and certification of representatives , as the date ap-
propriate for determining the eligibility of employees to vote in the
election . The election was held on February 25, 1938. During the
period from September 24, 1937, to February 25, 1938, 174 employees
were laid off. One hundred and nineteen of these employees par-
ticipated in the election . During the hearing which was held on
April 4, 1938,13 Stanley W. Brandel , the superintendent , testified
that while the respondent was not committed to recalling employees
laid off , it maintained a list of all employees laid off and recalled
them as business warranted ; that if business should return to its
condition prior to the lay-offs, most of those who had been laid off
would be recalled ; that after prior lay-offs a majority of those laid
off had been recalled; and that employees who were laid off reason-
ably expected to be recalled at some future date. In view of the
seasonal nature of the respondent 's business and the respondent's
policy of recalling employees who have been laid off , we are of the
opinion that the employees who were laid off retained their employee
status 14 and clearly had an interest in the election . They were
entitled to vote therein.
11 This problem is thoroughly discussed in.Matter of R. C. A. Manufacturing Company,
Inc. and United Electrical & Radio Workers of America, 2 N. L. R. B . 159, 168. See also
Virginian By. Co . v. System Federation No. 40, 84 F. ( 2d) 641, affirmed , 300 U . S. 515,
where the Court had before it the similar language in the Railway Labor Act , 45 U. S. C.,
Section 131, et seq.
>s The record in this hearing was made a part of the record in the instant case by
stipulation of the parties.
14 See Matter of Flexo Products Corporation and International Brotherhood of Elec-
trical Workers, Local B-71S, 7 N. L. _R. B. 1163 ; Matter of Alaska Packers Association and
Alaska Cannery Workers Union, Local No. 5, Committee for Industrial Organization,
7 N. L. R . B. 141 ; Matter of National Distillers Products Co. and United Distillery
Workers of U. S., Local No . 484, affiliated with Committee for Industrial Organization,
5 N. L. R . B. 862. The old Railway Labor Board held in a number of decisions that
"employees" as used in the Transportation Act of 1920 included "laid off or furloughed
employees entitled to return to the service under the seniority rule when the force is
restored to what is generally recognized as constituting a normal force." See Nashville
C. & St. L. By. v. Railway Employees ' Department of American Federation of Labor,
93 F. (2d ) 340 (C. C. A. 6 ) and cases there cited.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that on and after June 14, 1938, the respondent refused
to bargain collectively with the exclusive representative of its •em-
ployees in the unit found to be appropriate. By such refusal the
respondent interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed to them by Section 7 of the
Act.
B. Interference, restraint, and coercion
Herbert S. Anderson, secretary of the U. A. W., testified that ini-
mediately preceding the consent election on August 21, 1937, Martin
Peterson, a foreman, told a number of employees in the shop that the
plant would be closed if the U. A. W. should win the election. He
testified that he reported this conduct to Stanley W. Brandel, su-
perintendent of the plant, and advised him that if it were not termi-
nated, he would consult the Board about it. Both Brandel and
Peterson testified at the hearing; neither testified concerning this
incident. We find that Peterson made the statements attributed to
him above.
Junius Brown testified that during February 1938 Peterson saw
him recovering some parts from the floor and asked him whether he
was looking for union buttons or union-card receipts. He further
testified that on the day before the election he had a conversation
with Peterson concerning the election and Peterson said to him, "I
wouldn't vote for that, Brown, if I was you. They will shut down
rather than recognize the Union." Although Peterson was called
to testify, he did not testify concerning this matter. We find that
Peterson made the statements attributed to him by Brown.
Louis F. Leonhart, assistant superintendent of the plant, admitted
that he talked to Anderson concerning Anderson's union activities
"once, or maybe twice," that Anderson told him how much he paid
in dues, and that he "might have asked him, `where does the money
go,' or something similar to that."
We find that the respondent, by the activities set forth above, in-
terfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
On April 5, 1937, the U. A. W. held a meeting at the Hotel
Samuels in Jamestown.. On the following day the chairman and
secretary, who were elected at the meeting, were discharged. Sub-
sequently, 22 additional employees who had attended the meeting
were discharged. The Board on July 2, 1937, secured the reinstate-
ment of these employees.
Four of the employees who were reinstated pursuant to the settle-
ment testified that Brandel told them at the time of their reinstate-
ment to forget about the union, to remember that they were being
MARLIN-ROCKWELL CORPORATION 657
constantly watched, that upon making their first mistake they would,
be discharged, and that by that time there would be no National
Labor Relations Act to protect them. Brandel and Leonhart testi-
fied that the substance of Brandel's talk to the reinstated employees
was that they should not engage in union activities on the respond-
ent's premises at any time, that the respondent would not violate
the Act, and that it would not be necessary for them to invoke the
protection afforded by the Act again. Brandel and several super-
visory employees further testified that in several meetings of the
supervisory employees, beginning shortly after July.2, 1937, the
supervisory employees were advised to "lean over backwards" in
their dealings with the employees and to refrain from discriminating
against the union members.
In view of the difficulty in resolving the conflict in the testimony
set forth above, we do not find that the respondent, by its supervisory
employees, made statements to the employees reinstated pursuant to
the Board's settlement, at the time of their reinstatement, which inter-
fered with, restrained, or coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
C. The lay-offs
The complaint alleges that the respondent laid off Bernard J.
Polinski, Harry W. Rapp, Gunnard Nelson, Frances Stead, Elmer E.
Melene, Francis B. Winans, Herbert S. Anderson, Junius Brown,
Edward Lane, and Carl G. Carlson, and refused to reemploy them,
because of their membership in and activities in behalf of the U. A. W.
The respondent in its answer denied these allegations of the complaint.
During the course of the. hearing counsel for the Board moved to
dismiss the complaint as to Edward Lane, and counsel for the respond-
ent joined in the motion. The motion was allowed.
The Trial Examiner in his Intermediate Report found that Bernard
J. Polinski, Junius Brown, and Carl G. Carlson were laid off for
reasons other than membership in and activities in behalf of the
U. A.. W. The U. A. W. did not file exceptions to these findings. We
have considered the entire record as to these employees, and agree with
the Trial Examiner's findings as to them.
Gunnard Nelson, Elmer E. Melene, Harry W. Rapp, and Frances
Stead were among 67 employees who were laid off on December 29,
1937. These lay-offs occurred during a slump in the respondent's
business. From September 1937 to July 1938 the respondent laid off
271 employees. Brandel, the superintendent, and other supervisory
officials testified that the procedure used in determining all the lay-offs
was as follows : When a foreman found that his production schedule
required a reduction in the number of employees working in his de-
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
partment, he reported this condition to Leonhart, the assistant super-
intendent. The foreman and assistant superintendent then went to the
superintendent. These three would then go over the list of employees,
considering their ability, efficiency, productiveness, willingness and
industry as a workman, the number and kinds of jobs each was trained
to do and, all other things being equal, seniority and the number
of their dependents. The employee who . by this test seemed of
least value to the respondent was then laid off. Brandel further testi-
fied that in order to retain in their employ some valuable employees,
it was sometimes necessary to transfer such employees from a depart-
ment where they were, not needed, to some, other department in which
less valuable employees were employed. Those employees in that de-
partment who were of least value to the respondent were then laid off.
When additional labor was needed, the same procedure was followed
in deciding who among the, employees who had been laid off should
be reinstated. We find that the respondent generally used some such
procedure as is outlined above in determining who among its em-
ployees should be laid off or reinstated.
Nelson and Melene were among those reinstated under the Board's
settlement of July 2, 1937; Rapp and Stead were not. Nelson was the
recording secretary of the U. A. W. and had conferred with the man-
agement in his official capacity several times. He was a skilled
employee. Nelson testified that he had greater seniority than most
of the employees doing the same type of work who were retained after
he was laid off. He mentioned specifically Casler, Mosher, Kolstee,
and Johnson. The superintendent, assistant superintendent, and fore-
man of these men testified that all of the employees retained were more
efficient than Nelson and that they were retained because of their
greater efficiency. Casler was later laid off when the force was further
reduced. It appears that he is a member of the U. A. W. On the
whole record we feel that the respondent applied its test set out above
and found that Nelson was not as efficient as those employees which it
retained. We find that Nelson was laid off for reasons other than
membership and activities in the U. A. W.
Melene was sergeant-at-arms of the U. A. W. He solicited member-
ship in the U. A. W. on the respondent's premises. Melene testified
that Connors, Bailey, and Swanson, employees engaged at similar work,
had less seniority than he and that they were retained after he was
laid off. Melene's foreman and the superintendent testified that Swan-
son and Bailey were more efficient workmen, while Connors was equally
as capable as Melene and was retained because of his ability to measure
rings. We believe that the respondent applied the test set forth above
in Melene's case and that it laid off Melene after deciding that he was
MARLIN-ROCKWELL CORPORATION 659
inferior to the workers retained. We find that Melene was laid off for
reasons other than membership and activities in behalf of the U. A. W.
Rapp was not an important figure in the U. A. W. At the time
he was laid off lie was the only employee engaged in inspecting rings
between the rough grinding operation and the grinding of the outer
diameter. His duties were assumed by Cecil Stankey. Rapp testified
that two set-up men, Anderson and Stuart, told him that Stankey
was not a capable inspector. Forty-two employees were let out of the
grinding department, in which Rapp worked, during December. 1937.
Leonhart, assist