Mose Cohen & Sons, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1968

172 N.L.R.B. 1412 (N.L.R.B. 1968)

1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mose Cohen & Sons, Inc. and International Brother-
hood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America . Case 9-CA-4386
July 31, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On May 7, 1968, Trial Examiner William Schar-
nikow issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affir-
mative action as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, Respondent filed ex-
ceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board 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
Trial Examiner's Decision, the exceptions, the
brief, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
Cohen & Sons , Inc., has engaged in , and is engag-
ing in , unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and ( 7) of the National Labor Rela-
tions Act , as amended , 29 U.S . C. Sec . 151, et. seq.,
herein called the Act. With respect to the unfair
labor practices , the complaint asserts, but the
Respondent 's answer denies, ( 1) that the Respon-
dent committed unfair labor practices within the
meaning of Section 8(a)(1) of the Act on August
10, 1967, by Vice President Harvey Cohen 's inter-
rogating an employee about said employee's and
other employees ' union activities and by threaten-
ing to lay off several employees and to cut down on
overtime work for its other employees should the
employees select the Union as their bargaining
representative ; and (2) that the Respondent com-
mitted unfair labor practices within the meaning of
Section 8(a)(3) and ( 1) of the Act by discharging
employees Cecil Crone and Larry Crone on August
11, 1967, because of their sympathy for, member-
ship in , or activities on behalf of the Union and in
order to discourage membership in the Union.'
Pursuant to notice, a hearing was held before me
at Cincinnati , Ohio, on January 11 and 12, 1968.
The General Counsel and the Respondent appeared
by counsel, and were afforded full opportunity to
be heard , to examine and cross -examine witnesses,
and to introduce evidence upon the issues in the
case . Since the hearing , briefs have been received
from the General Counsel and the Respondent and
have been duly considered.
Upon the entire record in the case and from my
observation of the witnesses . I make the following;
FINDINGS OF FACT
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Mose Cohen & Sons, Inc.,
Cincinnati, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM F. SCHARNIKOW, Trial Examiner: The
complaint alleges that the Respondent, Mose
' The Respondent excepted to certain of the credibility findings made by
the Trial Examiner It is the Board 's established policy, however, not to
overrule a Trial Examiner 's resolutions with respect to credibility unless, as
is not the case here , a clear preponderance of all the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
I. THE BUSINESS OF THE RESPONDENT
Respondent , Mose Cohen & Sons, Inc., an Ohio
corporation , is engaged in the purchase and sale, at
wholesale , of scrap materials at its place of business
in Cincinnati , Ohio, where it maintains two yards,
known as the Fifth Street Yard and the Sixth Street
Yard . During the last calendar year , a representa-
tive period , the Respondent had a direct outflow of
materials in interstate commerce , of a value ex-
ceeding $50 ,000 which it sold and caused to be
shipped directly from Cincinnati, Ohio, to points
outside the State of Ohio.
I find that the Respondent is, and has been, en-
gaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to
entertain jurisdiction of the present case.
' The unfair labor practice charges were filed by the Union on August
14, 1967 , and served on the Respondent on August 16, 1967 The Regional
Director issued the complaint on October 23. 1967, and served it on the
Respondent and the Union on October 24, 1967 The Respondent filed its
answer on November 1,1967
172 NLRB No. 150
MOSE COHEN & SONS, INC. 1413
11. THE LABOR ORGANIZATION INVOLVED In April 1966, having worked elsewhere as an ap-
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Joint Council No. 26 (herein called the Union), is a
labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. General History of the Crones' Employment and
Union Activity
Three members of the Crone family have been
intermittently employed by the Respondent and, in
June, July, and August 1967, all three were work-
ing in the Respondent's Sixth Street Yard, under
Yard Foreman John Corcoran. Two of them, Cecil
Crone and his 20-year-old son, Larry, were
discharged or laid off on August 11, 1967, by
Joseph McKennon (the Respondent's general su-
perintendent of production for both yards), but
Mike Crone (Cecil's other son) continued to work
and was still employed by the Respondent at the
time of the hearing on January 1 1 and 12, 1968.
During the last 7-1/2 years, Cecil Crone, the
father, worked at three different times for the
Respondent, first as a laborer separating metals in
the "metal house," at times also driving a truck,
and finally, after April 1966 and until his discharge,
as the principal operator of the overhead crane
which feeds the power shears with scrap metal from
piles which have been deposited in the Sixth Street
Yard by a "railroad crane," ordinarilly operated by
either Roy Osborn or Earl Osborn, two of the ol-
dest and highest paid of the Respondent's em-
ployees. Cecil Crone's overall employment by the
Respondent was punctuated by two "quits" and by
a threat to quit again in June 1967. During his em-
ployment he received a number of wage increases
from an original $1.50 an hour to a weekly salary of
$125 plus time-and-a-half overtime for work in ex-
cess of 45 hours a week.2
Cecil Crone 's original job was in the "metal
house " at the Fifth Sreet Yard with later occasional
jobs driving a truck, from approximately the end of
1959 or the beginning of 1960 until December
1964 when he quit because, as he told the yard
foreman, he thought the trailer brakes were "un-
road worthy." At the end of the first year of this
original 4-year period of employment, he had
received a raise from $1.50 an hour to a straight
weekly salary of $100 for 45 hours, which he
received until he quit in December 1964. A week
after he quit, he was rehired by the Fifth Street
Yard foreman at $2 an hour and again worked in
the "metal house" and occasionally drove a truck
until in December 1965, he again quit because he
refused to drive a dinosaur type of truck.
2 These figures were submitted by Cecil Crone in his testimony and, as
arithmetical computation will show , would indicate an hourly rate of $2.66
for the first 45 hours in a week. However , his paycheck vouchers which
prentice welder during the intervening 4 months, he
returned to work for the Respondent at its Sixth
Street Yard at Vice President Harvey Cohen's
request and promised to pay him $2 an hour for the
first 30 days while he learned to operate the over-
head crane and then, if he qualified as a crane
operator, to pay him $120 for a 45-hour week. Two
months later, in June 1966, the Respondent offered
him a 5-cent-per-hour increase, but he insisted
upon and received, the promised weekly salary of
$120 plus time and a half for overtime after 45
hours. Thereafter, he was the principal operator of
the overhead crane, as has been noted, and before
going on a week's vacation in June also trained
several employees in the operation of the crane, in-
cluding his son Mike, who also had been hired to
work in the Sixth Street Yard.
Before leaving on his week's vacation on June 17
or 18, 1967, Cecil Crone told John Corcoran (his
Sixth Street Yard foreman) and also Vice President
Harvey Cohen, that "he had no intention of coming
back to the job," because (as he explained to
Cohen) Roy Osborn, in his operation of the rail-
road crane, was "putting more work on me than I
can do." And he told Foreman Corcoran plainly
that, "I wouldn't go back running the crane unless
he either straightened Roy out or put someone else
on [the railroad] crane." As a result, Foreman Cor-
coran told Cecil Crone "he would keep [him] off
the crane, and put [him] on the ground ... until
they got it straightened out" and Cecil Crone not
only returned to work after his vacation, but within
a short time, resumed operating the overhead crane
and was given a 10-cent-an-hour raise by Foreman
Corcoran, without the latter's consulting his superi-
or, Superintendent McKennon. His son Mike Crone
had substituted for him during his vacation and also
continued to operate the crane at times even after
Cecil returned to work. As we shall see, the record
is not clear as to whether there was one or two
other employees at the yard who also operated the
overhead crane at times.
Like his father, Larry Crone worked for the
Respondent at three different times, quitting after
two brief periods of employment and threatening to
quit a third time in July 1967. He was hired as a
truckdriver at the Fifth Street Yard at $1.25 an
hour in May 1966 but quit after 26 weeks . His last
hire was in June 1967 at the Sixth Street Yard as a
laborer on the day shift with his father (the only
shift at the time) and starting at $1.40 an hour he
was given raises, in each case by Foreman Cor-
coran, to $1.60 an hour after 2 weeks, and then to
$1.75 an hour after 6 weeks. While Yard Foreman
Corcoran was on vacation during the week
beginning July 10, 1967, and while General Su-
perintendent McKennon was directly supervising
were introduced as General Counsel 's exhibits show that his ultimate
hourly rate was actually $2 60 with time and a half for hours in excess of 40
per week
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the yard in Corcoran 's absence , Larry Crone and
his brother , Mike , told McKennon they were going
to quit because they could not get along in the
yard . But McKennon persuaded them not to quit by
transferring them to a night shift which he was
starting . Thereafter , both Larry and Mike Crone
worked the night shift at the Sixth Street Yard from
3:30 p.m. to midnight , with Larry Crone working
the shaker or shear table and Mike operating the
overhead crane on the night shift . There was some
overlapping of their working hours with those of
their father , since the father (Cecil Crone) regu-
larly worked an hour and a half of overtime after
his work on the day shift was finished at 3:30 p.m.
The Union had attempted to organize the
Respondent 's employees several years ago without
any interference from the Respondent , but had lost
a Board-conducted representation election . In July
1967, Union Representative James Felder began
fresh organizational efforts in which none of the
three Crones was at first involved . Thus , on July 7,
Felder talked to four or five of the other employees
at the Sixth Street Yard gate and then held a meet-
ing for the employees at the union office on July
25, which none of the Crones attended . But on Fel-
der's invitation , Cecil Crone and another employee
did meet with Felder at the Union 's office on Au-
gust 1 . With union authorization cards then sup-
plied by Felder , Cecil Crone thereupon solicited
the signatures of other day shift employees in front
of the Sixth Street Yard at the end of their shift,
and Larry Crone did the same with the night shift
employees when they were washing up at the end of
the night shift in the boxcar which served as the
yard 's "office." None of the Respondent's
representatives was present during this solicitation
and, in all , Cecil and Larry Crone secured signa-
tures on seven cards which Cecil delivered to
Felder.
There is no reason to believe that Vice President
Harvey Cohen or any of the supervisors actually
saw the Crones engage in this or in any other union
activity . But they frankly testified concerning their
awareness that there was union activity going on
and that they heard Cecil and Larry Crone were in-
volved .3 Thus, according to his testimony, Vice
President Cohen saw Felder (whom he knew) talk-
ing to employees at the Sixth Street Yard , and em-
ployee Roy Osborn told him that there was union
activity afoot . Yard Foreman Corcoran , too, ac-
cording to his testimony , heard rumors from em-
ployee Roy Osborn ( which he reported to Superin-
tendent McKennon ) that a union might be forming
and that Cecil Crone might be active. And Superin-
tendent McKennon testified that while he was sub-
stituting for Yard Foreman Corcoran at the Sixth
Street Yard during Corcoran 's vacation from July
10 to July 16, he heard rumors of the Union's ac-
tivity and that employee Earl Osborn told him
someone was passing out union literature at the
Fifth Street Yard but that , as Roy Osborn as well as
Earl Osborn added , "The Union will never get in
here , in the [ Sixth Street ] Yard, [ because] out of
the whole crew there 's only four people that would
ever go Union ," i.e., the three Crones and em-
ployee James Allen. Finally , according to the
testimony of both men , Superintendent McKennon
reported the substance of these rumors to Vice
President Cohen, including the likely involvement
of the three Crones in the Union's activity.
B. Superintendent McKennon's Limited Contacts
With the Crones Before He Discharged Them on
August 11, 1967
Cecil Crone worked under Foreman Corcoran at
the Sixth Street Yard since April 1966 and has
been known by Vice President Cohen from the
beginning of his employment by the Respondent.
Both Corcoran, who spent his full time at the Sixth
Street Yard, and Cohen, who spent most of his time
at the Fifth Street Yard and only an average of
from 3 to 5 hours a week at the Sixth Street Yard,
regarded Cecil Crone as a satisfactory crane opera-
tor.
Superintendent McKennon did not know Cecil
Crone until apparently mid-June 1967 . Although
McKennon had once been the yard supervisor at
Fifth Street, from the time the Respondent opened
its Sixth Street Yard 2-1/2 or 3 years ago, he had
served not only as the Respondent 's general su-
perintendent for production at both yards (and
therefore Corcoran 's superior with general ac-
countability for both yards to Vice President
Cohen), but had also been one of the Respondent's
two "salesmen " and, as such , was accountable for
the contract-purchase of metal scrap from industri-
al plants in Indiana and for the Respondent's ser-
vice of such accounts . As the Respondent 's general
production superintendent , McKennon , was Cor-
coran's superior and ordinarily spent an average of
from 5 to 8 hours at the Sixth Street Yard. But
when Corcoran went on vacation, as he did for the
week from July 10 to 17, 1967, McKennon took
over full time direction of the Sixth Street Yard.
Although Foreman Corcoran was free to hire and
grant wage increases to the rank -and-file yard per-
sonnel , he was required to consult McKennon be-
fore giving raises to key personnel such as Cecil
Crone as the crane operator in the Sixth Street
Yard. Nevertheless, as I have noted, Corcoran did
give Cecil Crone a 10-cent-per-hour raise without
consulting McKennon in late June 1967, after
Crone had threatened to quit because of his dif-
' Cohen , Yard Foreman Corcoran , and Superintendent McKennon all
believed that the activity began in May or June , although according to
Union Representative Felder it actually began in July
MOSE COHEN & SONS, INC. 1415
ficulties with Roy Osborn, the operator of the rail-
road crane. Moreover, Corcoran promised to keep
Cecil "on the ground" until the matter with Roy
Osborn could be straightened out. It seems clear,
however, that Cecil Crone had begun operating the
overhead crane again before Corcoran went on his
July vacation and McKennon substituted for him at
the Sixth Street Yard.
Superintendent McKennon's first knowing en-
counter with Cecil Crone was in mid-June 1967,
before Crone's vacation, when Crone was
dispatched by Foreman Corcoran to "spot" one of
three of Respondent's trailers at an Avco ordinance
plant in Richmond, Indiana . McKennon had ar-
ranged a trial contract with Avco to purchase its
scrap which Avco would load on the Respondent's
trailer as it accumulated at various convenient load-
ing docks at the plant . Avco had for 20 years dealt
with a local Indiana scrap dealer and the Respon-
dent 's prospect of a continuin* contract with Avco
was important not only for its estimated annual
gross of from $400,000 to $500,000 and its profit
to the Respondent of an estimated $40,000 to
$50,000, but because it was a "lead contract"
which might enable the Respondent to secure con-
tracts from other industrial plants in the area from
whom it had not thus far been able to get business.
When Corcoran sent Crone out with the Respon-
dent's truck and trailer to Avco on this first occa-
sion , he told Crone of the importance of the assign-
ment to the Respondent , and instructed him to re-
port to Avco's production man (Vogelsang) and its
shipping clerk ( Brusher), whose names had been
given to Corcoran by McKennon . While this much
is- clear and undisputed , Crone's and McKennon's
testimony conflicts as to what actually happened
after Crone arrived at Avco.
Crone's testimony on the point was brief. He
testified that Corcoran had said he was to weigh the
tractor and trailer , then to deposit the trailer at an
Avco dock in accordance with Avco's instructions,
and finally to reweigh the tractor alone ; that he fol-
lowed these instructions but, since he had made a
mistake in weighing the truck and trailer , Brusher
had him take them back and reweigh them before
he eventually "spotted" the trailer where Brusher
said he should ; and that Brusher did not ask him to
move the trailer from one spot to another nor did
he have to get McKennon to tell him to move it.
But McKennon testified to a quite different effect
and, crediting and relying upon his testimony, I
make the following f ndings concerning the in-
cident . Avco had given McKennon three critical
loading areas at its plant and had informed Cor-
coran of them . After Crone had left the Respon-
dent 's yard, Vogelsang telephoned McKennon that
Avco wanted to change the "spotting" of one of the
trailers to another more critical area . McKennon
drove down to the Avco plant where Vogelsang
told him that one of the Respondent 's drivers had
refused to move a trailer from one dock to another
when asked to do so by Shipping Clerk Brusher.
McKennon went out with Vogelsang into the plant
area where they met with Brusher and Crone.
McKennon asked Crone why he had not moved the
trailer and Crone said that McKennon had told him
to put it at the other dock. McKennon then asked
Crone to move the trailer and, after a pause which
was embarrassing to McKennon in the presence of
the other men, said " I guess I have to" or
something to that effect. The Avco men made some
remark about its "being a hot day" and McKennon
replied, "He's not the regular driver , and he will
not be your regular driver, and you're right, it is
warm day."
McKennon 's next contact with Cecil Crone oc-
curred on July 10, 1967, the beginning of the week
that McKennon took charge of the Sixth Street
Yard while Foreman Corcoran was on vacation. On
that morning, McKennon noticed that the overhead
crane was not being operated and that, as a result,
production in the yard was being cut in half since
the shear which was normally fed by the crane was
also idle. McKennon asked Crone why the crane
was not in operation and it was only after some con-
versation between the two men that Cecil Crone
complied with McKennon's request that he began
operating the crane . According to Cecil Crone's
testimony , he at first told McKennon merely that he
"wasn't supposed to run " the crane because "Mr.
Corcoran put me on the ground helping him out"-
a statement which appears to be somewhat at vari-
ance with Cecil's testimony at another point in the
transcript, to the effect that on June 21 Corcoran
had told him only that Cecil would no longer be
operating " the overhead crane on a regular basis"
and that , coincident with the 10-cent raise he
received , he might actually have again operated the
crane that same week. In any event, McKennon
testified, and I credit his testimony, that Cecil Crone
had said to him on July 10, "I am not going to
operate " the crane because " [ I am not] going to
work with ... certain people in the Yard," and
specifically referred to the Osborn brothers.
Furthermore , McKennon testified, and I also credit
his testimony to this effect, that Cecil Crone began
operating the crane for McKennon that morning
only after McKennon asked him "to do me a favor
and get up there until I could make some other ar-
rangements " and that , either in this conversation or
at about the same time , Cecil Crone told McKen-
non he had trained his son, Mike Crone, to operate
the crane and that another employee named Arnold
had also operated the crane at times.
On the same afternoon that Cecil Crone reluc-
tantly manned the crane for McKennon, his sons,
Larry and Mike, told McKennon they wanted to
quit because, according to Larry, they "couldn't get
along in the Yard." According to Larry Crone,
Mike "was mad because the [railroad ] crane opera-
tor was loading him up with work"and Larry "was
mad because ... something had happened up in the
shear." Although , according to Larry, they did not
specifically complain to McKennon about the
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operator of the railroad crane and the shear opera-
tor, it would appear that their displeasure was
based upon actions by the Osborns who were doing
this work. But I credit the testimony of McKennon
that Larry Crone was specific in his complaint and
that he complained that he could not "get along
with Earl Osborn, who was the shear operator at
that time." In any event, McKennon persuaded the
two young men not to quit and, deciding to start a
night shift the next day, he transferred them to the
new four-man night shift under Leadman Cole,
where from 3:30 p.m. until midnight Mike operated
the overhead crane and Larry worked as a laborer
and split the work on the shear table and platform
with Cole. Mike's operation of the overhead crane
on the night shift was unquestionably satisfactory.
Larry testified that there were no complaints about
his work, either. But I credit the testimony of
Foreman Corcoran that Larry was "below average"
in his work and not a "real hustler." I also credit
the testimony of both Foreman Corcoran and Su-
perintendent McKennon that Leadman Cole com-
plained to them that Larry was not staying on the
table where he was assigned, and that Corcoran had
to speak to him about it.
probably draw unemployment, he just got the or-
ders from the office and he had to carry them out."
But, although the matter is not free from doubt, I
credit McKennon's denials that he had made these
statements which were attributed to him by the
Crones.
D. Conflicting Evidence Relating to the Reasons for
the Discharge
Decision of whether the Respondent discharged
Cecil and Larry Crone because of their union ac-
tivity or because of Superintendent McKennon's
justifiable dissatisfaction with their work attitude
requires a consideration of conflicting evidence as
to conversations which Cohen, the Respondent's
vice president, had or may have had with the two
Crones in August just before their discharge by
McKennon, as well as an evaluation of McKennon's
and Cohen's testimony concerning the reasons for
the discharges on August 1 1 rather than earlier.
The following summary of the directly or in-
ferentially conflicting evidence on these various
matters presents the ultimate question to be de-
cided in the case.
C. McKennon's Discharge of Cecil and Larry Crone
on August 11, 1967
Superintendent McKennon terminated Cecil
Crone's and Larry Crone's employment late in the
afternoon of Friday, August 11, 1967, a regular
payday. Cecil had worked all day and would nor-
mally have worked until 5:30 p.m., although the
night shift came on at 3:30 p.m. When Larry Crone
reported for work on the night shift, Foreman Cor-
coran told him to see McKennon who was in the
boxcar that served as the Sixth Street Yard's office.
McKennon told Larry he was being "laid off," paid
him his wages, and had Larry bring Cecil to the
"office." McKennon then told Cecil that he, too,
was being "laid off" and paid him his wages.
Although McKennon and the Crones testified, and I
find, that the superintendent told both of the men
merely that they were being "laid off" and gave
them no reason," the Respondent subsequently re-
ported to the Ohio Bureau of Unemployment Com-
pensation that both men had been "discharged-
payroll cutback."
The Crones testified, but McKennon denied, that
there was more to their conversations with McKen-
non than has already been found. Thus, according
to Cecil Crone, McKennon had said that he did not
know what it was all about but he had the un-
pleasant task of letting Cecil go. And Larry Crone
testified that he asked McKennon "was I laid off
because my work was unsatisfactory, anything like
that, and [McKennon] said no, he said I could
' At one point McKennon testified that , although he might have told the
men he was " laying ( them I off for lack of work ,"hc did not think he said
1. Cohen's conversations with the Crones before
their discharge
Cecil Crone and Vice President Cohen each
testified as to a conversation between them con-
cerning the Union in the beginning of August. But
they differed not only as to the substance of the
conversation but also as to the approximate time it
took place. Cohen testified as to a conversation
which he said took place on or about August 1 and
specifically denied that there was any other conver-
sation such as that which Crone testified took place
on August 10. Crone, on the other hand, testified
only concerning his version of a conversation on
August 10 and was not called upon to admit or
deny Cohen's version of an August 1 conversation.
Thus, Cecil Crone testified that, on the afternoon
of August 10 (the day before his discharge), Cohen
asked him if he had heard anything about the
Union; that, upon Crone's affirmative answer,
Cohen asked him if he knew "who was behind the
Union"; that Crone said he knew but couldn't tell;
and that Cohen thereupon said "if they got a union
in there he would have to lay off half the men,
because they wasn't worth what they was getting
now ... [that] he would hire better men and pay
them more money, [that] he would also cut the
overtime [and that] the men was cutting their own
throats by getting a union in there."
As a witness, Cohen not only categorically de-
nied that there had been any such conversation, or
for that matter any conversation between him and
this because "to the best of my recollection I've never given a man a reason
that I 've laid off "
MOSE COHEN & SONS , INC. 1417
Cecil Crone at all within a few days before the tat-
ter's discharge, but testified as follows concerning a
quite different conversation 10 days before Cecil's
discharge:
[A] round the first of August ... I was standing
in the center of the Yard ... and Cecil Crone
... walked over to me and said what are we
going to do about it? I said, what are you talk-
ing about? And he said, well, you know what I
mean, what are we going to do about it? I said,
well, why don't you come to the point? What
are you talking about? He said, what are we
going to do about this union, you know there's
union activity around here. He said, I sure
don't want it, so I would like to do something
about it. I said, well, go ahead and do it, what
do you want me to do about it, and he said
well, I want you to give me permission to talk
to the men against the union. I said, wait a
minute, I don't want to get involved in this, if
there's going to be a union in here, that's their
business, I'm just not interested in getting in-
volved.
Turning now to Larry Crone, the General Coun-
sel relies upon his testimony that Vice President
Cohen made a remark to Larry 2 days before Lar-
ry's discharge on August 11, which indicated
Cohen's satisfaction with Larry's work. Thus, Larry
testified that on August 9, Cohen was standing
looking at the scrap iron in the yard and said to
Larry who was then reporting for work, "that the
iron was going down pretty fast and that we were
doing a good job on the night shift, that we was
cutting a lot of iron." But Cohen denied that he had
any conversation with Larry on or about August 9
"concerning the manner he or anyone on the
second shift were performing their work," and
testified, furthermore, that Larry "was just a face to
me ... I would know he was a face I might have
seen, but as far as connecting him with the name
Crone I would never have known that."
2. McKennon's and Cohen's testimony in
explanation of the discharge
The Respondent's explanation of Crones'
discharge on August 11, 1967, was presented
through the testimony of Superintendent McKen-
non and Vice President Cohen. McKennon
testified that he discharged Larry Crone with-
out consulting Cohen because of Larry's unsat-
isfactory work performance on the night shift
as reported to McKennon by Leadman Cole.
As to Cecil Crone, Cohen and McKennon testi-
fied that McKennon had complained to Cohen
in June about Cecil Crone's uncooperative con-
duct in the Avco incident which McKennon
believed threatened acquisition of that lucrative
contract, and then again in July about Cecil's
objection to operating the overhead crane dur-
ing Foreman Corcoran's vacation; that on each
of these occasions, McKennon expressed strong
dissatisfaction with Cecil's attitude and recom-
mended that he be discharged; that in June, Cohen
refused to agree to the discharge, telling McKennon
that crane operators were at a premium and that
they should wait until after Cecil Crone had taken
his vacation; but that, in July (about July 20, ac-
cording to Cohen), Cohen approved McKennon's
proposal that Cecil be discharged, agreeing with
McKennon, however (and, indeed, insisting), that
the discharge be postponed until an adequate
replacement crane operator could be trained-a
step which McKennon informed Cohen he had al-
ready undertaken on the night shift with Mike
Crone as a possible replacement.
McKennon testified that he had previously com-
plained also to Foreman Corcoran on the two occa-
sions he had been annoyed by Cecil Crone's con-
duct and attitude, but without result. Thus, he
testified that after the Avco incident in June, he
told Corcoran he did not want to see Cecil Crone
again, that he recommended Crone be discharged,
that Corcoran said Crone was a satisfactory worker,
and the he (McKennon) pursued the matter no
further when Vice President Cohen refused to over-
rule Corcoran at that time. McKennon further
testified that following his experience with the
Crones during Corcoran's July vacation, he told
Corcoran that he "though Larry and Cecil were
poor workers, with poor attitudes and would have
to be replaced"; that Corcoran said, "Larry isn't
much of a worker, but his father is a good worker,
I've never had any trouble with him"; and that
McKennon then told him what had happened dur-
ing Corcoran's vacation, and that "I've had trouble
with him, and as soon as you can replace him,
replace him."
Corcoran testified as a witness for the Respon-
dent, although by the time of the hearing he had
voluntarily quit the Respondent's employ for
another job, with assurance from the Respondent
that he could return to work there whenever he
wanted. Corcoran did not testify as to whether he
had any complaint from McKennon about Crone in
June nor any recommendation of discharge at that
time, and McKennon's testimony is all that we have
as to this. Corcoran did deny McKennon's
testimony, however, that McKennon recommended
Crone's discharge in July, and at that time told Cor-
coran that he intended to discharge Crone. On this
point, he testified that McKennon told him he was
not satisfied with Cecil Crone, and "stated there
was a possibility of a discharge" but that McKen-
non did not recommend a discharge.
The day following Corcoran's testimony and
release as a witness, Respondent's counsel informed
me that Corcoran's testimony had varied from
statements made by him on this last point in an af-
fidavit he had furnished the Respondent before the
hearing. After some discussion, counsel for the
parties agreed on the record that Corcoran need
not be recalled as a witness and stipulated instead
(1) that his affidavit should be received in evidence
(as it was) showing that he had in fact therein
354-126 O-LT - 73 - pt 2 - 18
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that "on or about the week of July 17,
1967-July 22, 1967, Joe McKennon told me that
he was dissatisfied with the attitude and conduct of
Cecil Crone and Larry Crone, and that he had de-
termined that both should be discharged"; and (2)
that if Corcoran were recalled as a witness his
testimony would be that his previous day's
testimony, rather than his affidavit, was accurate.
From the Respondent's standpoint, the most
favorable view that can be taken of the foregoing
testimony and other testimony given by Cohen,
McKennon , and Corcoran is that it was McKennon
who pressed and was responsible for the Respon-
dent's decision to discharge the Crones and that,
although he overcame Cohen's initial opposition,
he never persuaded nor enlisted the support of
Foreman Corcoran whose tolerance for Cecil
Crone's troublesome attitude seems apparent from
the record. Thus, although on the present record it
is undisputed that McKennon complained to Cor-
coran in June about Cecil Crone in connection with
the Avco incident and told Corcoran, who was his
subordinate, that Crone should be discharged,
within a few weeks thereafter Corcoran not only
dissuaded Crone from quitting because of his dif-
ficulties with the Osborns, but promised Crone "to
keep him on the ground " as far as possible and thus
minimize contact with the Osborns . And then,
without consulting McKennon whose approval was
nominally required, he also gave Cecil a 10-cent-
an-hour raise . When McKennon 's second complaint
to Corcoran about Crone in July also failed to
move Corcoran but, according to McKennon and
Cohen, did persuade Cohen that Cecil Crone
should be discharged, both the discharge decision
and the timing of its execution apparently became
McKennon 's responsibility. And, as both Corcoran
and McKennon consistently testified, when McKen-
non told Corcoran on August 1 1 that the Crones
were to be discharged that day, Corcoran said, "It's
your decision ," with the result that McKennon and
not Corcoran thereupon informed the Crones of
their "layoffs."
The rest of the evidence concerns why, if the
Respondent 's superintendent and vice president
had decided to discharge Cecil Crone in July
because of his attitude toward his work , they waited
3 or 4 weeks before actually discharging him on
August 11. In substance , the answer proffered by
the Respondent through McKennon's testimony is
that Cecil Crone was at the time the only efficient
overhead crane operator in the yard and that
McKennon therefore did not discharge him until he
could have a replacement trained.
As to the apparent unavailability of another effi-
cient , reliable , substitute crane operator at the time
McKennon and Cohen decided in July that Cecil
Crone should eventually be discharged, McKennon
testified that upon his asking Cecil Crone, Crone
said that employee Eugene Arnold operated the
crane at times and that he had also trained his own
son, Mike Crone ; that McKennon asked Arnold but
Arnold refused to operate the crane, saying he was
afraid to do so; and that McKennon , not really
knowing of Mike Crone 's ability and being uncer-
tain as to whether Mike would quit if he were sub-
stituted for his father , decided to try Mike as a
crane operator on the newly arranged second shift
where the demands would not be so exacting and at
the same time to train other possible operators on
both shifts.
McKennon testified that he therefore assigned
Mike Crone as crane operator on the four-man
night shift under Leadman Cole with instructions to
Cole to train Mike and to have Mike also train the
other men on the shift ; that Cole , although a shear
operator and not a crane operator , was capable of
undertaking this training ; that McKennon himself
observed Mike's operation of the crane for an hour
on the first day he worked the night shift and
"determined that he was a qualified operator";
that from that time until August 11, McKennon
"dropped in" and watched the night shift operation
occasionally during the rest of Jack Corcoran's va-
cation which ended on July 17 and also "one night
after Jack 's vacation "; and that from Cole 's report
"about 2 days after Mr. Corcoran came back ...
that Mike was doing a good job, that he had
learned the fundamentals . . . [ and] could run [the
crane] in a pinch ," and also from his own check of
the night shift " had become proficient in the opera-
tion of the overhead crane."
Indeed , according to McKennon 's testimony, so
satisfied was he with the training of a replacement
crane operator for Cecil Crone, that when he in-
formed Forman Corcoran on August 1 1 that Larry
and Cecil Crone were to be discharged that day, he
also told Corcoran, "I felt he had sufficient back up
men to cover the crane, on both shifts, if Mike hap-
pened to quit, and if [Mike ] didn 't quit [to] keep
him because in my opinion he was a good man."
(Emphasis supplied ) Thus , it appears from McKen-
non's testimony that when he discharged Cecil
Crone he did not even then know whether Mike
would also quit and could therefore not have
replied upon Mike 's being the crane operator who
would substitute for his father . Furthermore, at no
point did McKennon testify that he had seen any-
one except Cecil and Mike operate the crane or
that he had any report that any of the other em-
ployees had actually received training on the crane.
Actually, not only is there no evidence that any of
the other employees had been trained, but McKen-
non himself testified that he had not checked with
Corcoran, the foreman of both shifts, to learn
whether any had been trained . Finally , it does not
appear from the evidence whom it was that McKen-
non relied upon to take Cecil Crone's place, nor
who in fact did take his place on the day shift after
his discharge on August 11.
E. Conclusions
The instant record makes it clear that before
Cecil and Larry Crone were discharged on August
MOSE COHEN & SONS, INC. 1419
11, 1967, the Respondent's vice president, its
general superintendent , and its yard foreman knew
or suspected that the two men were engaged in the
Union's organizational activities. But the Respon-
dent had not interfered with its employees during
previous organizational attempts by the Union, in
one of which the Union had been eventually unsuc-
cessful only because it lost a Board election.
Furthermore, by the time the Respondent began to
suspect the Crones' union activities in July 1967,
Larry's generally unsatisfactory performance during
his brief employment and Cecil's sullen and un-
cooperative conduct in the June and July 1967 in-
cidents which had understandably annoyed Su-
perintendent McKennon (especially when con-
sidered in the light of Cecil's earlier quits and
threats to quit when he did not get his way) had
provided the Respondent with plausible grounds for
discharge. Had the Respondent discharged the two
men at or about that time on these grounds and had
this been all there was to the evidence, the accusa-
tion that it discharged them because of their
suspected union activities would have been unsup-
ported.
But the Respondent did not discharge the two
men for another 3 or 4 weeks and the evidence of
what happened in the meantime has raised a
question as to the credibility of the Respondent's
explanation that, although McKennon and Cohen
decided in July that the men should be discharged
because of their unsatisfactory performances, they
postponed the discharges until August 11 by which
time McKennon was able to have a crane operator
trained to replace Cecil Crone.
To refute this explanation by the Respondent of
the discharges, and to show that the discharges on
August 1 I were actually motivated by the
suspected union activities of the Crones, the
General Counsel relies upon a number of factors in
the evidence. One is the testimony of Cecil Crone
(although denied by Cohen) that, on August 10,
the day before the discharges, Vice President
Cohen questioned him about the employees' union
activity and threatened to lay off half the crew if
the Union should succeed in organizing them.
Other factors relied upon by the General Counsel
are the undisputed facts that when McKennon
discharged the men on August I i , he gave no
reason for their discharges, and that , in its required
reports to the State Unemployment Commission
even after the filing and service upon it of the un-
fair labor practice charge in the present case, the
Respondent made no claim that the men had been
discharged for cause-much less for unsatisfactory
work performance or attitude as it now claims-but
merely reported a "payroll cutback" as the reason
why they were "discharged." But the most persua-
sive factor relied upon by the General Counsel
(which in my opinion ties the others together and
has convinced me that Cohen, in spite of his denial,
did question Cecil Crone about the union activity
and threatened a layoff in a conversation with
Crone the day before the discharges) is the failure
and apparent inability of a July decision to
discharge the men, with evidence that the interven-
ing time was in fact used for the purpose of training
a crane operator replacement for Cecil Crone and
that the August 1 1 execution of the discharges was
determined when such a specific replacement was
ready. As I have pointed out in discussing McKen-
non's testimony, such evidence is not to be found in
the record.
In agreement with the foregoing arguments of the
General Counsel and the bases pointed out by him
in the record, I cannot credit the Respondent's ex-
planation of its reasons for discharging Cecil and
Larry Crone on August 11, 1967, rather than in
July. Furthermore, in the absence of such a credi-
ble explanation by the Respondent that the August
1 1 discharges were in fact postponed discharges for
cause, I find that the only credible explanation pro-
vided by the record was that the two men were in
fact discharged because the Respondent had been
informed, and strongly suspected, that they were
active in support of the Union. Furthermore, on the
conflict in the testimony between Crone and Vice
President Cohen, I credit the testimony of Crone
and find that on August 10, 1967, the day before
the Crones were discharged, Cohen questioned
Crone about the Union's activity among the em-
ployees, and threatened a layoff of half the Respon-
dent's yard crew if the Union were successful.
Finally, upon the foregoing findings based upon
my view of the credible evidence, I conclude, in ac-
cordance with the allegations of the complaint, (1 )
that, by Vice President Harvey Cohen's questioning
employee Cecil Crone on August 10, 1967, about
his and the Respondent's other employees' union
activities and threatening a layoff should the em-
ployees select the Union as their bargaining
representative, the Respondent interfered with,
restrained, and coerced its employees in the exer-
cise of the organizational and concerted activities
guaranteed by Section 7 of the Act and thereby
committed an unfair labor practice within the
meaning of Section 8(a)(1) of the Act, and (2)
that, by the Respondent's discharge of employees
Cecil and Larry Crone on August 11, 1967,
because of their suspected support of the Union's
organizational activities, the Respondent dis-
criminated against them in regard to their hire and
tenure of employment in order to discourage mem-
bership in the Union, and committed unfair labor
practices within the meaning of Section 8(a)(3)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the
operations described in section I, above, have a
close, intimate, and substantial relationship to
trade, traffic, and commerce among the several
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8 ( a)(1) and (3) of the Act, I will recommend
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act.
Having found that the Respondent discrimina-
torily discharged Cecil Crone and Larry Crone on
August 11, 1967, I will recommend that the former
or a substantially equivalent position without preju-
dice to his seniority or other rights and privileges,
and make him whole for any loss of earnings suf-
fered by reason of the discharge by payment to him
of a sum of money equal to that which he would
normally have earned from the aforesaid date of
discharge to the date of the Respondent's offer of
reinstatement , less his net earnings during said
period. The backpay shall be computed in ac-
cordance with the formula stated in F. W. Wool-
worth Company, 90 NLRB 289. Furthermore, it will
be recommended that the Respondent pay interest
on the backpay due to each said employee, such in-
terest to be computed at the rate of 6 percent per
annum , using the Woolworth formula, to accrue
commencing with the last day of each calendar
quarter of the backpay period on the amount due
and owing for each calendar quarter. Isis Plumbing
& Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact,
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Joint Council No. 26 (herein called the Union),
is a labor organization within the meaning of the
Act.
2. The Respondent, Mose Cohen & Sons, Inc.,
an Ohio corporation, is an employer engaged in
commerce within the meaning of the Act.
3. By questioning employee Cecil Crone on Au-
gust 10, 1967, about his and the Respondent's
other employees ' union activities and threatening a
layoff should the employees select the Union as
their bargaining representative, the Respondent in-
terfered with, restrained, and coerced its employees
in the exercise of their organizational and con-
certed activities guaranteed by Section 7 of the Act
and committed an unfair labor practice within the
meaning of Section 8(a)(1) of the Act.
4. By discharging employees Cecil Crone and
Larry Crone on August 11, 1967, the Respondent
discriminated against them in regard to their hire
and tenure of employment, in order to discourage
membership in, and support of, the Union, and
thereby committed unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and upon the entire record
in the case, it is recommended that Mose Cohen &
Sons, Inc., an Ohio corporation, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Joint
Council No. 26, or any other labor organization of
its employees by discriminatorily discharging any of
its employees, or by discriminating in any other
manner in regard to their hire and tenure of em-
ployment or in any term or condition of employ-
ment.
(b) Questioning employees about their union ac-
tivities , threatening a layoff should the employees
select the Union or any other labor organization as
their bargaining representative, or in any other
manner interfering with, restraining , or coercing
employees in the exercise of the right to self-or-
ganization, to form labor organizations, to join or
assist the aforesaid Union, or any other labor or-
ganization, to bargain collectively through
representatives of their own choosing, and to en-
gage in any other concerted activities for the pur-
pose of collective bargaining or other mutual aid
and protection or to refrain from any or all such ac-
tivities, except to the extent that such right may be
affected by an agreement requiring membership in
a labor organization as a condition of employment,
as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Offer to Cecil Crone and Larry Crone, im-
mediate and full reinstatement to their former posi-
tions, or to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and make each of them whole for
any loss of earnings suffered as a result of his
discharge, in the manner set forth in the section en-
titled "The Remedy."
(b) Notify Cecil Crone and Larry Crone if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available
to the National Labor Relations Board or its agents,
for examination and copying, all records necessary
for the determination of the amount of backpay
due under the Order herein.
MOSE COHEN & SONS, INC.
(d) Post at its yard in Cincinnati, Ohio, copies of
the attached notice marked "Appendix. "5 Copies of
said notice, to be furnished by the Regional
Director for Region 9, after being duly signed by
Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be main-
tained for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 9, in
writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.'
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discourage membership in In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Joint Council No. 26, or in any other labor or-
ganization , by discriminatorily discharging and
refusing to reinstate any of our employees, or
by discriminating in any other manner in re-
gard to their hire and tenure of employment or
any terms or condition of employment.
WE WILL offer to Cecil Crone and Larry
Crone reinstatement to ther former or substan-
tially equivalent positions, without prejudice to
their seniority or other rights and privileges,
and we will make each of them whole for any
loss of pay suffered by him as a result of his
discharge.
WE WILL NOT question our employees about
their union activities or threaten a layoff
' In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order"
1421
should employees select the above Union or
any other union as their collective-bargaining
representative, nor will we in any other manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-or-
ganization, to form labor organizations, to join
or assist the above Union or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to
engage in any other concerted activities for the
purpose of collective bargaining or other mu-
tual aid and protection or to refrain from any
or all such activities, except to the extent that
such right may be affected by an agreement
requiring membership in a labor organization
as a condition of employment, as authorized by
Section 8(a)(3) of the Act.
Dated By
MOSE COHEN & SONS,
INC.
(Employer)
(Representative ) (Title)
Note: We will notify the above-named em-
ployees entitled to reinstatement if presently serv-
ing in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Federal Office Building, Room 2407, 550
Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3663.
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 9, in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "