Motor Products Corp.

National Labor Relations Board - Board Decisions

Aug 26, 1953

106 N.L.R.B. 925 (N.L.R.B. 1953)

DEEP FREEZE APPLIANCE DIVISION 925
National Government under the National Labor Relations Act for the benefit of and protection
of both the employee and the employer. The National Labor Relations Board is recognized
by such unions as the A. F. L„ C. L O., etc.
A Union not qualified with the National Labor Relations Board is not entitled to use the
facilities and protection of the Board.
This Company, as it has said before, will cheerfully bargain with any Union that our
employees may choose when it is certified to us by the National Labor Relations Board as
representing the majority of our employees.
On the other hand, we will not do business in any way with any Union which will not qualify
with the National Labor Relations Board and is not properly certified to us by it as the
bargaining agent for our employees.
If any strike is undertaken in an attempt to force us to recognize and negotiate with an
uncertified union we are advised that it would be unlawful and we would make every lawful
effort available to us to continue our operations.
We intend to continue to live up to our contracts and abide by the laws of the United States.
This October 27, 1952
TUNGSTEN MINING CORPORATION
/s/ /s/
James R. Sweet W. Lunsford Long
Vice President and General Manager Vice President and General Manager
DEEP FREEZE APPLIANCE DIVISION, MOTOR PRODUCTS
CORPORATION and DAVID W. OWER. Case No. 13-CA-
1295. August 26, 1953
DECISION AND ORDER
On June 8, 1953, Trial Examiner John C. Fischer issued his
Intermediate Report in the above-entitled proceeding, finding
that the Respondent had not engaged in the unfair labor prac-
tices alleged in the complaint, and recommending that the
complaint be dismissed in its entirety, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the
General Counsel filed exceptions to the Intermediate Report
and a supporting brief.
The Board' has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the General Counsel's
exceptions and brief, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, only insofar as theyare consistent with
our decision herein.
The General Counsel excepts to the Trial Examiner's finding
that the discharge of David W. Ower did not violate Section 8
(a) (3) and (1) of the Act. We find merit in this exception.
iPursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three- member panel[Members Houston, Styles, and Peter-
sofa
106 NLRB No. 150.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ower was first employed by the Respondent in January 1951,
as a machinist in the tool and die department. From April 1952
until November 21, 1952, the date of his discharge, he worked
under the supervision of Foreman Farrell, and at the time of
his discharge he was classified as a tool and diemaker.
Until August 1952, the Respondent's employees were repre-
sented by Lake County Metal Trades Association, of which
District No. 140, International Association of Machinists,
AFL, was a member. Ower served as IAM steward and chief
steward, respectively, during that period. In August 1952, a
representation election was held as a result of which UAW-CIO
was certified as bargaining representative. On September 2,
1952, UAW-CIO and the Respondent entered into an interim
agreement . This agreement was in effect at the time of Ower's
discharge.
On the morning of November 20, 1952, Ower prepared a
petition for the decertification of UAW-CIO, and delivered it to
two other employees for circulation. He began to draw up the
petition before working hours but completed and delivered it to
the others after working hours commenced.2 Foreman Farrell
noted Ower's absence from his workbench but made no effort
to investigate. Shortly after Ower returned, he was visited by
UAW-CIO Local President Parker, Chief Steward Swindle,
Steward Jarvis, and Committee Member Fellers, all members
of the UAW-CIO bargaining committee then negotiating with the
Respondent. Swindle and the others accused Ower, among other
things, of starting a petition to get rid of Swindle as chief stew-
ard.
Later that morning, the UAW-CIO bargaining committee,
including those who had earlier visited Ower at his workbench,
met with Director of Industrial Relations Greene and other
management officials. Although this meeting was called to
consider a wage grievance involving Ower and two other
employees, the principal subject discussed was Ower's cir-
culation of the decertification petition. All the UAW-CIO
representatives, except Jarvis, urged that Ower be discharged;
Jarvis preferred giving Ower a violation slip. Greene took the
position that the Respondent would have tocheckfurther before
taking any action. He said, "We just can't discharge a man that
quick. We would have to have reasons for discharging him,
proof."3 As the participants at this meeting could not agree on
what to do with Ower, it was decided to schedule another
meeting for that afternoon.
At the afternoon meeting, in addition to the others, UAW-
CIO International Representative Pearson appeared. Pearson
actively participated, taking the firm position that Ower be
2 Ower testified that he was away from his work bench for only 10 minutes. Foreman Farrell
testified it was at least 20 minutes. The Trial Examiner did not consider the discrepancy
significant.
3 Steward Jarvis gave the only detailed account of this meeting and of the meeting which
followed that afternoon. Like the Trial Examiner, we credit his testimony as to these meet-
ings
DEEP FREEZE APPLIANCE DIVISION 927
discharged. As Jarvis testified, Pearson stated that "he had
been looking for this occasion to come and that something
should be done." In furthering his position, Pearson suggested
that Foreman Farrell be called in so as to ascertain whether
Ower had received permission to leave his bench that morning.
Farrell was thereupon brought in. He stated that he had not
given Ower such permission. After further discussion, the
meeting ended with the committee members, except Jarvis,
urging Ower's discharge, and Respondent's director, Greene,
not stating to the committee what action he would take.
Somewhat later that afternoon, Farrell, in a conversation
with Greene, told Greene for the first time that Ower had
delivered a defective gauge to the tool crib which he had
represented as having passed inspection when it had not.
Greene then told Farrell that Ower should probably be dis-
charged but that he would "sleep on it overnight" and take it
up in the morning. Also that afternoon, Farrell told Ower that
it looked as if he was going to be fired.
The following morning, Greene called Ower and Farrell
into his office. He told Ower that he was being discharged
because, despite prior warning, he had wandered about the
plant in violation of plant rules and had delivered, as having
passed inspection, what was in effect a defective gauge. A
letter was thereafter sent to Ower repeating these reasons as
the cause of his discharge.
The Trial Examiner found that the evidence did not support
the Respondent's claim that Ower's gauge failed to pass
inspection or that Ower was properly chargeable with defective
workmanship in this regard. He concluded, and we agree, that
Ower was not discharged for that reason." However, the
Trial Examiner also found that Ower, despite prior warning,
had violated a plant rule against wandering about the plant, and
concluded that the Respondent discharged him for that reason.
We do not agree.
The record is clear, as indeed the Trial Examiner himself
describes it, that Ower's circulation of the decertification
petition "touched off a chain of events which culminated in
his discharge within 24 hours." That Ower's discharge was
due to his activity against the UAW-CIO seems clear to us
from the recital of the sequence of events during that 24-hour
period. No sooner had he delivered the decertification petition
to two AFL Machinists than he was visited almost immediately
by a UAW-CIO committee. As the Trial Examiner states it,
"they were highly incensed at Ower's efforts to oust them and
their Union from Respondent's plant." The meeting that morning
scheduled for the consideration of wage grievances was
suddenly converted into a meeting for the consideration of how
to discharge Ower most expeditiously. The tenor of the UAW-
CIO's discussion at this meeting is illustrated by remarks such
as "something should be done about Dave Ower" and "he was
4 The Respondent did not except to this finding.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circulating a petition through the plant to start another union."
The meeting broke up because they could not get together on
what was to be done about Ower. As Director Greene speaking
for the company said, "we just can't discharge a man that
quick ." Significantly enough, another meeting was called for
that afternoon , and this time UAW-CIO International Repre-
sentative Pearson joined in the discussion and took a leading
part in demanding Ower's discharge . Pearson's statements at
that afternoon meeting were characteristic of the entire
sequence of events that preceded Ower's discharge , particularly
his comment that "he had been looking for this occasion to
come up. "
In the light of these circumstances , it is abundantly clear
that the Respondent acceded to the relentless pressure on the
part of the UAW-CIO to discharge Ower because of his activi-
ties against the UAW-CIO, and that it discharged him for that
reason and not for the reason advanced at the time of his
discharge.'
We have carefully considered the rationale of the Trial
Examiner in accepting the Respondent ' s second reason based
on an alleged plant-rule violation for discharging Ower, but
in the light of the record are unable to agree with him.
The interim agreement between the Respondent and the
UAW-CIO, which was in effect at the time of Ower' s discharge,
contained the following provision:
The Company shall not discharge any employee without
cause, and shall give at least one warning notice of dis-
satisfaction to such employee. No notice or warning of
any kind, however , will be given to any employee before
he is discharged if the cause of such discharge is dis-
honesty, drunkenness or recklessness while on the job or
reporting for duty. All discharges will be by written notice
and a copy of the same will be furnished to the Union."
It seems patent from a reading of the above provision that
the phrase "warning notice of dissatisfaction" refers to a
notice given after , and not before, the employee so warned had
given the company cause for dissatisfaction . Under the circum-
stances, we cannot accept the Trial Examiner ' s conclusionthat
Foreman Farrell's remarks to the toolroom employees not to
engage in union activity in the plant, made several weeks before
Ower's discharge , constituted a warning within the meaning of
the contract provision . The record is silent as to any unsatis-
factory conduct in this regard on Ower ' s part--or , for that
matter, on the part of any other employees- -prior to the time
5 In this connection, the Trial Examiner found that the record showed "proof positive
that Ower was legitimately engaged in protected union activities within the meaning of
Section 7 of the Act."
6As Ower was concededly not discharged for dishonesty , drunkenness , or recklessness,
the exception with respect to a warning notice as to these does not apply to him.
DEEP FREEZE APPLIANCE DIVISION 929
Farrell spoke to the toolroom employees . Farrell's statements
cannot therefore , in any event, be construed as a warning
notice , eden if it is assumed on what would appear to be an
unreasonable assumption , that the contract called for other
than a specific warning notice . In the absence of a published
rule prohibiting union activity on company time or evidence
that such a rule had actually been in effect when Farrell spoke
to the employees, we find that Farrell's statement was in
effect an announcement that such a rule would thereafter be
in force and that failure to observe it would thereafter consti-
tute cause for dissatisfaction within the meaning of, the
contract . Accordingly, we find , in disagreement with the Trial
Examiner , that Ower had not received a warning notice under
the contract.8
Moreover , the only pertinent evidence in the record supports
the conclusion that such departure from the contract provision
cannot be explicated by custom or past plant history. On the
contrary, both Jarvis and Ower testified without contradiction
that under the interim contract as well as under preceding
contracts which contained identical provisions, it was the
custom of management to give two warning notices of dissatis-
faction in writing, before discharging an employee. In addition,
there was evidence, already adverted to above, that Foreman
Farrell had observed Ower's absence but had apparently not
considered it of sufficient moment to investigate it or report
it. This evidence achieves added significance from testimony
that toolroom employees had in the past absented themselves
from their work benches for various reasons without any set
schedule of work breaks.
On the basis of all of the foregoing , and in the light of the
entire record , including the evidence of relentless pressure
exerted by the UAW-CIO to effect Ower's discharge, and the
Respondent's unexplained failure to follow the contract dis-
charge procedure, we conclude that Ower was discharged
because of his anti-UAW-CIO activities and not for the reasons
advanced by the Respondent. Accordingly, we find that the
Respondent violated Section 8 (a) (3) and (1) of the Act.
The Effect of the Unfair Labor Practices upon Commerce
The activities of the Respondent set forth in the paragraphs
above, occurring in connection with operations of the Respondent
described in section I of the Intermediate Report, have a close,
intimate, and substantial relation to trade, traffic, and com-
Although an understandable rivalry between CIO and AFL adherents existed at the plant,
of which the Ower episode was indeed an outgrowth, the record contains no evidence to support
the Trial Examiner's characterizations of "strife" or "discord" of the type that would
normally require the Respondent to invoke any special rules; nor is there any evidence to
support the Trial Examiner's statement that the Respondent at some time prior to the Ower
discharge either displayed the bargaining agreement or the plant rules on the bulletin board.
8 The record contains no evidence, apart from Farrell's talk, of any other "warning notice
of dissatisfaction."
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free flow
of commerce.
The Remedy
Having found that the Respondent has engaged in certain
unfair labor practices , we will order that it cease and desist
therefrom and take certain affirmative action in order to
effectuate the policies of the Act.
We will order that the Respondent offer to David W. Ower
immediate and full reinstatement to his former or a substan-
tially equivalent position ' without prejudice to his seniority or
other rights and privileges and make him whole for any loss
of pay suffered by him as a result of the discrimination, by
payment to him of a sum of money equal to the amount he
would have earned from November 21, 1952, the date of his
discriminatory discharge , to the date of the Intermediate Report
herein, and from the date of this Decision and Order to the
date of the offer of reinstatement10 less his net earnings," to
be computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289, 291-
294. Earnings in one particular quarter shall have no effect
upon the back-pay liability for any other such period. We will
also order that the Respondent make available to the Board,
upon request , payroll and other records to facilitate the check-
ing of back pay due.
However, in view of the fact that it appears that Respondent
discharged Ower not to satisfy any illegal purpose of its own,
but, rather, under pressure of UAW-CIO' s bargaining com-
mittee, and in view of the absence of any evidence that danger
in regard to the commission of other unfair labor practices is
to be anticipated from Respondent's conduct in the past, we
are of the opinion that a broad order that the Respondent cease
and desist from in any manner infringing upon the rights of
employees guaranteed by the Act is unwarranted , in this case,
and that one limited to the violations herein is sufficient to
effectuate the policies of the Act.'2
CONCLUSIONS OF LAW
1. District No. 140, International Association of Machinists,
AFL, and United Automobile, Aircraft and Agricultural Imple-
ment Workers, CIO, are labor organizations within the meaning
of Section 2 (5) of the Act.
9 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827.
10 In accordance with our usual practice , we will exclude the period from the date of the
Intermediate Report to the date of this Decision and Order , as the Trial Examiner did not
recommend reinstatement or award of back pay Akin Products Company, 99 NLRB 1270.
"Crossett Lumber Company, 8 NLRB 440
12 Peerless Yeast Company, 86 NLRB 1098.
DEEP FREEZE APPLIANCE DIVISION 931
2. By discriminating in regard to the hire and tenure of
David W. Ower, thereby discouraging membership in labor
organizations, and thereby also interfering with, coercing, and
restraining employees in the exercise of the rights guaranteed
in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (3) and 8 (a)
(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section 2
(6) and (7) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent, Deep
Freeze Appliance Division, Motor Products Corporation, Lake
Bluff, Illinois, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from discouraging membership in Dis-
trict No. 140, International Association of Machinists, AFL,
or in any other labor organization of its employees, or encour-
aging membership in United Automobile, Aircraft and Agri-
cultural Implement Workers, CIO, or in any other labor
organization of its employees, by discriminatorily discharging
employees or denying them reinstatement or reemployment, or
by discriminating in any other manner in regard to their hire
or tenure of employment or any term or condition of their
employment, except to the extent permitted by Section 8 (a) (3)
of the Act.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Offer to David W. Ower immediate and full reinstatement
to his former or a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Upon request, make available to the Board or its agents,
for examination and copying, all payroll records, social-
security payment records, time cards, personnel records and
reports, and all other records necessary to analyze the amount
of back pay due.
(c) Post at its plant in Lake Bluff, Illinois, copies of the
notice attached hereto, marked ''Appendix A."13 Copies of
such notice, to be furnished by the Regional Director for the
Thirteenth Region, shall, after being duly signed by the Re-
spondent's authorized representative, be posted by the Respond-
ent immediately upon receipt thereof, in conspicuous places,
including all places where notices to employees are customarily
13In the event that this Order is enforced by a decree of a United States Court of Appeals
there shall be substituted for the words, "Pursuant to a Decision and Order," the words,
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
322615 0 - 54 - 6C
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted, and maintained by it for sixty ( 60) consecutive days
thereafter . Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered , defaced, or covered
by any other material.
(d) Notify the Regional Director in writing , within ten (10)
days from the date of this Order , what steps the Respondent
has taken to comply herewith.
Member Peterson , dissenting:
I cannot agree with the majority that Ower was discrimi-
natorily discharged . Although failure of the Respondent to
follow the discharge procedure set forth in the interim UAW-
CIO agreement might sustain a contractual grievance in an
arbitration proceeding , it does not follow that it is likewise
cogent evidence in support of the unfair labor practice finding
of my colleagues . Like the Trial Examiner, Ifind that Farrell's
specific admonition to the toolroom employees was adequate
warning to Ower to refrain from violating the particular plant
rule which occasioned his discharge . Since, in my opinion, the
record does not otherwise negate the Respondent ' s defense in
any material respect , I would dismiss the complaint.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT discourage membership in District
No. 140, International Association of Machinists, AFL,
or in any other labor organization , or encourage member-
ship in United Automobile , Aircraft and Agricultural
Implement Workers, CIO , or in any other labor organi-
zation , by discriminatorily discharging employees or
denying them reinstatement or reemployment, or by
discriminating in any other manner in regard to their
hire or tenure of employment or any term or condition
of employment , except to the extent permitted by Section
8 (a) (3) of the Act.
WE WILL offer David W. Ower immediate and full
reinstatement to his former or substantially similar
position without prejudice to his seniority and other
rights and privileges and make him whole for any loss
of pay suffered as a result of the discrimination against
him.
All our employees are free to become, remain , or refrain
from becoming or remaining members of any labor organi-
zation, except as that right may be affected by an agreement
DEEP FREEZE APPLIANCE DIVISION 933
requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
We will not discriminate, in regard to the hire or tenure
of employment or any term or condition of employment, against
any employee because of membership in or activity on behalf
of any labor organization.
DEEP FREEZE APPLIANCE DIVISION,
MOTOR PRODUCTS CORPORATION,
Employer.
Dated ................. By....................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Relations Act as
amended (61 Stat. 136), was heard in Waukegan, Illinois, on April 6, 1953, pursuant to due
notice to all parties by the undersigned Trial Examiner.I All parties were represented by
counsel and were afforded full opportunity to be heard, to examine and cross-examine wit-
nesses, to introduce relevant evidence, to argue orally, and to file briefs and proposed find-
ings and conclusions. These have been filed both by the General Counsel and by the Respondent.
The original complaint, issued on February 16, 1953, by the General Counsel, based on
charges filed by the Charging Party, David W. Ower, and served on the Respondent, alleged
in substance that the the Respondent had engaged in unfair labor practices proscribed by
Section 8 (a) (1) and (3) of the Act: (a) by discriminatorily discharging David W. Ower on
November 21, 1952; and (b) discriminatorily refused and refuses to reinstate said employee
for the reason that he had joined or assisted the AFL or had failed and refused to join or
assist the UAW-CIO or had otherwise engaged in concerted activities for the purpose of
collective bargaining and for other mutual aid and protection.
By the acts above set forth, the complaint charges that the Respondent discriminated and
is now discriminating in regard to the hire and tenure of employment of Ower, and did thereby
discourage and is discouraging membership in the A.F.L . Union and concerted activities of its
employees in behalf of A.F.L. Union. and did thereby encourage and is encouraging membership
in the CIO Union, thereby engaging in unfair labor practices within the meaning of Section 8
(a) (3) of the Act. .
Respondent's answer filed March 9, 1953, admitted that it was a corporation engaged in
the business of manufacturing and selling refrigerators and home freezers , was engaged in
interstate commerce and subject to the NationalLaborRelations Act, but denied all allegations
of the complaint relative to unfair labor practices. Respondent affirmatively averred that the
United Automobile, Aircraft and Agricultural Implement Workers, UAW -CIO, by order of
the National Labor Relations Board under date of August 25, 1952, in consolidated Cases
Nos. 13-RC-2718, 2770, 2779, and 2780, was duly and properly certified as the exclusive
representative for the purpose of collective bargaining for all employees of group A. being a
unit particularly described in that order ; that said representation proceedings involved not
1 The General Counsel and his representative at the hearing are referred to herein as the
General Counsel and the National Labor Relations Board as the Board. The above-named
Respondent is referred to as Respondent, The International Association of Machinists, AFL,
as the A F. L. Union, and the United Auto Workers, CIO, as the CIO Union.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only the United Automobile , Aircraft and Agricultural Implement Workers , UAW-CIO, but
also, among others , District No. 140 , International Association of Machinists , AFL, that
pursuant to said certification , collective -bargaining agreements have been in full force and
effect for the unit exclusively represented by the said UAW-CIO. The Respondent admits
that on or about November 21, 1952 , it discharged David W . Ower but specifically denies
that said discharge was discriminatory based on his union activities , and contends that Ower
was discharged for cause.
Upon the entire record inthecaseandfrom his observation of the witnesses , the undersigned
Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a New York company, is and at all times herein mentioned has been a
corporation with offices and plants located in North Chicago, Illinois, and at Lake Bluff,
Illinois, where it is engaged in the business of manufacturing and selling refrigerators and
home freezers. The Respondent in the course and conduct and operation of its said business
causes and at all times mentioned herein has continuously caused large quantities of raw
materials to be purchased and transported in interstate commerce to its North Chicago and
Lake Bluff, Illinois, plants from and through States of the United States other than Illinois
and during the calendar year of 1952, the value of such raw materials purchased by Respond-
ent for use at said plants was in excess of $ 500,000, of which over 50 percent was shipped
to said plants from points outside the State of Illinois. During the calendar year of 1952, the
value of finished products sold by the Respondent was in excess of $1,000,000, of which
50 percent was shipped by Respondent from its said plants in Illinois to points outside the
State of Illinois. It is therefore concluded and found that the Respondent is engaged in commerce
within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background issues
On the basis of a charge filed by David W. Ower with the Regional Office of the National
Labor Relations Board the General Counsel of the Board issued a complaint alleging that
Deep Freeze had discriminatorily discharged a former employee, one David W. Ower.2
The Respondent, Deep Freeze, demed that it discriminatorily discharged Ower and contends
that Ower was discharged for cause.
It appears that the employees ofDeepFreezehave been represented by collective-bargaining
agents since 1944. The original contracting union was the Refrigeration Employees Union.
During the year 1945 this contract was taken over by the Lake County Metal Trades Council,
consisting of the International Association of Machinists, The Ornamental Iron Workers,
Electricians, and Plumbers. The employees at the plant continued to be represented by the
Lake County Metal Trades Council until August 1952. At that time, as a result of a repre-
sentation proceeding, the UAW-CIO obtained a majority of the votes cast in a runoff repre-
sentation election, and the present Local 1217 of that union was immediately formed. The
Company and the UAW -CIO entered into an interim contract immediately on the certification
by the National Labor Relations Board of Local 1217, CIO, as the collective-bargaining agent
for the production and maintenance employees of Deep Freeze at both of its plants. This
interim contract was in effect from September 2, 1952, up to and including February 7, 1953,
on which date the basic contract was approved by both the Union and Deep Freeze.
Discharge of David W. Ower
The charging party, David W. Ower, was employed by Deep Freeze on January 15, 1951,
initially as a maintenance machinist in the tool and die department located at the Lake Bluff
plant. His work then consisted of the maintenance of machinery, jigs, die fixtures, and
2 The International Association of Machinists (A F of L.) filed a first amended charge
repeating the Ower charge in haec verba . TheRegional Director dismissed this first amended
charge on application of the Machinists on March 25, 1953.
DEEP FREEZE APPLIANCE DIVISION 935
similar items. In the fall of 1952, he was reclassified as a tool and die maker. His
foreman and supervisor was Henry Farrell, and he worked under Farrell's control and
supervision from April 1952 until the time of his discharge on November 21, 1952. Ower
was discharged on the morning of Friday, November 21, 1952. On that morning, he was
called into the offices of Mr. William Greene, director of industrial relations at Deep Freeze.
There were present not only Mr. Greene and Mr. Ower, but also Mr. Farrell, Ower's
supervisor. As recited in Respondent's brief, Greene informed Ower that he was being
discharged effective as of that day, assigning the reasons for his discharge as follows:
(a) That Ower had been orally warned with respect to poor workmanship; and on the day or
so previous to the day of his discharge, he had represented to a tool-crib attendant that
a gauge upon which he had completed work, had been passed by an inspector, when in fact,
the gauge was imperfect, and the inspector had subsequently informed the Company that he
had rejected the gauge for being imperfect; and that as a result of this representation to the
tool-crib attendant, the gauge had been placed on the floor and had been used on aircraft
engine parts for a period of 6 to 8 hours until it had been taken off the floor because of its
imperfect construction; (b) that on the day previous to his discharge he had been wandering
around the plant without approval from Farrell, his supervisor, in violation of applicable
plant rules and in the face of a previous warning given by Farrell to all employees in the
tool and die room respecting wandering or loiteringon company time during working hours.
The director of industrial relations , Mr Greene, then by letter advised Ower of his discharge
and his reasons therefor , which was admittedly received by Ower
Ower's Version
Ower's story of his discharge is completely at variance with that given by Deep Freeze
officials. Ower's version is that he was discharged because he wrote, partly on his own time
and partly on company time, and put in circulation a petition requesting the National Labor
Relations Board to decertify the CIO Union in order that the A.F.L. Union, to which he was
still loyal and in which union he had held office, could again get representation as the
collective-bargaining agent of the employees of the machinists. 3
The evidence clearly shows that Ower's trouble with the Respondent's officials began
immediately after delivery of the petition to decertify the CIO Union to two unidentified
AFL machinists. Obviously, he had already been embroiled with the CIO Union officials by
reason of his activity in behalf of the AFL machinists. The circulation of this petition
touched off a chain of events which culminated in his discharge within 24 hours by Respondent
with reasons assigned as "poor workmanship" and "wandermgabout the plant." Immediately
he was visited, at his machine, by a delegation consisting of the president of the CIO Union,
Tommy Parker; the chief steward, Harry Fellers; Ower's steward, Clarence Jarvis, and
Leonard Swindle. Manifestly they were highly incensed at Ower's efforts to oust them and
their Union from Respondent's plant.
This group were members of a bargaining committee who had been currently holding
conferences with representatives of the Company in reference to a wage increase for three
employees including Ower, and also in negotiating a basic contract to replace the interim
contract then in effect between the Company and the CIO Union. Such a meeting had been
planned for the morning of November 20 in the office of Mr. William H. Greene, director of
industrial relations of the Company, and included Mr. Fulton of the Respondent's staff.
This meeting convened in the morning and apparently was fruitful only of a discussion of
the Ower case. Steward Jarvis testified that Harry Fellers, the chief steward, said to
Mr. Greene: "something should be done about Dave Ower; he was circulating a petition
through the plant to start another union, and there should be something done because they
were starting to have a riot down there." Jarvis quoted Greene as saying: "we will have to
check into this further and find out for sure; get the man in here." According to Jarvis all
the other employee members of the grievance committee agreed that Ower should be fired--
sower had been steward for the International Association of Machinists from July 1951
until January 1952, In March 1952, Ower became the chief steward in the plant on behalf
of the I A.M. (A. F. L. Union) until July 1951. In an election between the A.F L. Union and the
CIO Union, he had acted as a poll watcher for the A.F.L. Union, but the CIO Union won this
election . Ower, however, on October 15 signed an authorization for checkoff dues to the
successful CIO Union in accordance with a union -shop agreement.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except himself, who held out for giving Ower a violation slip.4 Chief Steward Swindle's
reason for demanding Ower's discharge was: "this petition he wrote was out to get him
(Swindle) off of being chief steward." This morning meeting broke up because they could
not get together on what was to be done with Ower. Jarvis' credited testimony is that in
response to Chief Steward Harry Feller's request for Ower's discharge is that Director
Greene stated: "we just can't discharge a man that quick. We would have to have reasons
for discharging him, proof." This was the logical reason for the breakup of this meeting,
which was followed by another meeting at 2 o'clock that afternoon of the same participants
with the addition of Mr. Harvey Pearson, the international representative of the CIO. Thus
up to the point of the second meeting, the Respondent's public relations officer had found no
valid excuse to fire Ower.
At the afternoon meeting in answer to the General Counsel's question: "What was the
purpose of calling in Pearson for the second meeting? " Jarvis answered: "Well, the main
reason was to find out what we were to do with this man (Ower)." Jarvis, whose testimony
I credit being uncontradicted in this connection, quoted International Representative Pearson
as saying: "he (Ower) should be put out of the plant" and "not able to come to work" and,
"Pearson said the Company should get rid of this fellow," and "that he had violated the
rules of the Company." Further, "Mr. Pearson said he had been looking for this occasion
to come and that something should be done; he wasn't any better than the stewards who had
to abide by the rules and regulations and get permission to leave his job, and I think this man
should be discharged." Pearson was supported by Fellers who stated that Ower should be
discharged "on account of his wandering through the plant and signing up the petition that
he had circulated because it was causing a riot."
At this point Pearson suggested that Mr. Hank Farrell, Ower's supervisor, be brought in
"to find out if he had permission to leave the job that day." Farrell was brought in, but
Greene demurred in bringing Ower before the committee because he "didn 't want any
violence in the meeting." Ower had admitted that the petition or papers were prepared by
him, partly on his own time and partly on company time, but contended that their delivery
took about 10 minutes, although Farrell testified that Ower was away from his bench for
at least 20 minutes . Ower admitted that he was then working on an urgently needed aircraft-
engine part , and he does not deny that he did not have Farrell 's permission to leave his
bench. To my mind, this discrepancy of time 10 or 20 minutes is not very important.
On the stand , Ower impressed me as a forthright and sincere man who was fighting for
the principles in which he believed and for which his former union stood, namely, AFL craft
organization , as opposed to CIO industrial mass organization . The difference is sometimes
expressed as "horizontal organization" AFL or "vertical organization " CIO. Ower 's sense
of loyalty and integrity is evidenced by the fact that he never implicated or involved his
AFL colleagues at whose request he wrote, and to whom he delivered the petition for de-
certification. It is significant that the International Association of Machinists (A.F. of L.)
likewise filed a charge against the Respondent of unfair labor practice in the exact language
of Ower's charge, and supported him up to within 10 days of this hearing. This would be,
under ordinary circumstances, proof positive to my mind that Ower was legitimately engaged
in protected union activities within the meaning of Section 7 of the Act. 5
Ower's Integrity and Workmanship Exonerated
Sometime before his discharge Ower was working on a measuring device called a "go and
no-go gauge." According to Ower, when he finished working on this gauge on November 19,
he took it to the chief inspector, Mr. McKenna, who stated that the gauge was off one-thousandth
of an inch but "that is all right; he said: Use it." Ower further stated that he discussed the
4 According to the hearsay evidence of Steward Jarvis, it was a custom in the plant, except
in cases of drunkenness or disorderly conduct, to give an employee who had done something
wrong or violated the rules, two violation or warning slips and to discharge him if he received
a third.
5"Sec. 7. Employees shall have the right to self- organization , to form, join, or assist labor
organizations , to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or other mutual
aid or protection, and shall also have the right to refrain from any or all of 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 in section 8 (a) (3)."
DEEP FREEZE APPLIANCE DIVISION 937
"go and no-go gauge " with his foreman, Mr . Farrell. He testified that Mr. Farrell "asked
me if it was scrap or if they could use it and "I said McKenna said they could use it." Ower
left the gauge with Bertha Foisy, gauge crib attendant , according to her testimony , Farrell
admitted that Ower did not know that the inspector ever rejected the gauge, and Ower testified
that he did not know what happend to the gauge after he left it with inspection . Farrell, in
diffused statements , testified that Ower turned the gauge in to the crib as being good and later
on McKenna called him (Farrell) about the gauge and asked where the gauge was Farrell then
called the gauge crib and was informed that it was out on the floor being used, and he asked
the crib attendant to take the gauge off the floor. He said it had been on the floor 6 or 8 hours.
Bertha Foisy , gauge crib attendant , testified that Ower told her the gauge was O.K., and that
her records showed that the gauge was on the floor from November 19 until about 4 o'clock
on Friday afternoon (November 21) when Farrell first talked to her about it, Of the correctness
of this time, Foisy was quite positive. Of her veracity I am not so positive. She stated she
checked with McKenna who said he had not O.K.'d the gauge nor had the foreman, and she
then immediately took it off the floor. SinceOwer was fired on Friday morning, her testimony
would indicate that the gauge was not taken off the floor until after Ower had already been
fired. If this version be true, although they knew about the gauge being imperfect and were
using its imperfection as a cause of Ower's dismissal , it is inexplicable that it was not
considered sufficiently significant to require its earlier removal. Ower stated that Mr.
McKenna left the Company's employment on the day that he, Ower, was discharged.
I am convinced that Ower was not guilty of dishonesty, nor was he culpably negligent in
leaving the questionable gauge with crib inspector Foisy. He testified, and it is a matter of
common knowledge in industrial plants , that it is not unusual fora machinist to miss tolerances
by one-thousandth of an inch. Jarvis testified that he knew of machinists or experienced
tool and die makers who have occasionally had work that was scrapped, were not fired
for it. I am convinced that the inspector knew the gauge to be slightly off, but told Ower that
it could be used. Ower testified "warning slips were given to employees in case of error
in conduct or things like that, or poor workmanship or something of the sort, prior to the
discharge." In connection with another piece of work which Ower was charged with spoiling
he testified "there was another job I was supposed to have fouled up on. That was this welding
fixture. I designed the thing and worked it out but after it was worked out they didn't like the
way I had my stops or something and sonleone else changed it. In fact, I don't know anything
about it until the time of the discharge." Ower testified that he received no warning on either
one of these mistakes , and I credit his truthfulness in this instance.
As to Ower's being orally warned with respect to prior poor workmanship, he testified
that he had never been criticized for any of his work, and had never been given any warning
slips. In this connection, Farrell testified in reply to the question "had you given any prior
warnings to Ower with regard to his workmanship while he was under your supervision and
control? " Answer : " I think there was only once , I think if he will recall , after he returned
from his vacation and I asked him what kind of a vacation he had, and that Stoner had to
rework the fixture for welding." In answer to the question: "Now, up until the time of Ower's
discharge you never had any other occasion to warn him about anything else? " Farrell
replied : " I never did." Based upon the foregoing findings , I hold that reason (a) dealing
with Ower's alleged poor workmanship, assigned for Ower's discharge by the Respondent
Deep Freeze, fails in substantiation.
Ower's Violation of Applicable Plant Rules
Reason (b) assigned by Respondent Deep Freeze for Ower's discharge, which recited that on
the day previous to his discharge Ower had been wandering around the plant without approval
from his supervisor, Farrell, in violation of applicable plant rules and in face of a previous
warning given by Farrell to all employees in the tool and die room respecting wandering
or loitering on company time during working hours, constitutes a defense for its action
which I hold that Respondent has sustained.
The record in this case is replete with an abundance of evidence of jurisdictional strife
between the opposing A.F.L. Union and the CIO Union with Respondent Deep Freeze, in the
vernacular, "in the middle." All employees other than supervisory, had been involved in
this struggle for control--and particularly involved was David Ower. The evidence sustains
the language of Respondent's brief that: "the history of the relationship of Deep Freeze and
the unions has been one wholly unmarked by any display of anti-union bias on the part of
Deepfreeze."
9 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In order to minimize discord in its labor relations --certainly in the tool and die depart-
ment--Respondent took steps to eliminate further union activities during working hours by
displaying on the bulletin board the company-union agreement containing the plant rules
and regulations. In reference to Ower's department, Steward Jarvis testified that a couple
of weeks prior to Ower's discharge Supervisor Farrell called together the men in the
toolroom and told them that there should be no more time spent on caucusing or union
activities during working hours, and he warned them about loitering or wandering around
the building. Loitering or wandering around on company time was prohibited by plant rules
and regulations , and was cause for disciplinary action, including discharge. The Board
has held in the leading case of Peyton Packing Company, "Working time is for work. The
act, of course does not prevent an employer from making and enforcing reasonable rules
covering the conduct of employees on company time." 49 NLRB 828. Ower, by reason of
his prior union activity in behalf of the A.F.L. Union, was undoubtedly one toward which this
warning was addressed. Ower denies that he received a prior warning "as an individual,"
but I am convinced, and I hold the specific warning given to his employees in a special
meeting in the toolroom by Supervisor Farrell, constitutes sufficient warning to Ower to
refrain from violating these particular rules upon pain of disciplinary action.
Obviously, the Company was dissatisfied about factional disharmony among some of the
employees, else Supervisor Farrell would not have called a special meeting of his group
and admonished them as he did. The writing--partly on his own time and partly on company
time--of the petition to decertify the CIO and its delivery on company time was clearly an
infraction of the rule which Farrell had warned against The pertinent part of the collective-
bargaining agreement between the Union and the Company under Section 10 states: "The
Company shall not discharge any employee without cause, and shall give at least one warning
notice of dissatisfaction to such employee. No notice or warning of any kind, however, will
be given to an employee before he is discharged if the cause of such discharge is dishonesty,
drunkeness or recklessness while on the job or reporting for duty. All discharges will be by
written notice, and a copy of the same will be furnished to the union."
Concluding Findings
The complaint alleges that Ower was discharged discriminatorily in violation of Section 8
(a) (3) of the Act for the reason "that he had joined or assisted the I.A.M., or failed or
refused to join or assist the UAW-CIO, or had otherwise engaged in concerted activities
for the purpose of collective bargaining and for other mutual aid and protection." Opposed
to this is the Respondent's answer which pleads that he was discharged for cause. The
element of poor workmanship failing in being substantiated, the sole question remaining is
whether the violation of applicable plant rules was the motivating cause--otherwise the
allegations in the complaint remain unanswered.
However, I find, contrary to the allegations of the complaint, that the Respondent, in light
of all of the evidence in the case, had a good, valid, and subsisting reason for discharging
Ower in that he violated reasonable company rules, after warning, covering the conduct of
employees on company time by leaving his bench without the permission of his supervisor
and by writing the petition and affidavits on company time. It is admitted that Ower was
engaged in concerted activities "for the purpose of collective bargaining or other mutual
aid or protection" to employ the language of the Act, but the question remains whether they
were protected concerted activities. The withdrawal of support to Ower by the A.F.L. Union
does not indicate that they were concerted activities. The Board has held in cases too
numerous for citation that where such activity is in contravention of a valid employer rule,
the employer may discharge such employees providing that the motivating reason is, in fact,
the violation of the rule, and not the concerted activities themselves.
In the state of this record, I conclude that the General Counsel has not met the burden of
proof incumbent upon him and the presumption is that the Respondent acted legally. The
cases cited by the General Counsel and Respondent's attorneys, Air Products, Inc , 91 NLRB
1381; George Norman Co., 101 NLRB 1127. Rex Mfg. Co., 86 NLRB 470; Republic Cotton Mills,
101 NLRB 1475, Crucible Steel Castings Co., 101 NLRB 494, and other decisions applicable
to the points of law have been considered.
ALLIS-CHALMERS MANUFACTURING COMPANY
CONCLUSIONS OF LAW
939
1. Deep Freeze Appliance Division , Motor Products Corporation is, and at all times
relevant herein was, engaged in commerce within the meaning of Section 2 (6) and (7) of
the Act.
2. Respondent has not engaged in any unfair labor practices within the meaning of the Act.
[Recommendations omitted from publication.)
ALLIS-CHALMERS MANUFACTURING COMPANYand OFFICE
EMPLOYEES INTERNATIONAL UNION, LOCAL NO. 19 AFL.
Case No. 8-CA-570. August 26, 1953
-DECISION AND ORDER
On October 24, 1952, Trial Examiner Charles W. Schneider
is sued his Intermediate Report in the above -entitled proceeding.,
finding that the Respondent had engaged in certain unfair labor
practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner
also found that the Respondent had not engaged in certain other
unfair labor practices and recommended that those allegations
of the complaint be dismissed . Thereafter , the Respondent
filed exceptions to the Intermediate Report and a supporting
brief, and the Union filed a brief. The Respondent also requested
oral argument . This request is denied as the record and briefs,
in our opinion , adequately present the issues and positions of the
parties.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has con-
sidered the Intermediate Report, the exceptions and briefs and
the entire record in the case, andherebyadopts the conclusions
and recommendations of the Trial Examiner, with the following
additions and modifications:
We agree with the Trial Examiner's finding that clauses XIII
and XIV of the Respondent ' s proposed contract did not involve
bargainable issues, and therefore were not demands uponwhich
the Respondent could insist to the point of impasse during con-
tract negotiations . As set forth in the Intermediate Report,
clause XIII provided that if the parties did not agree upon a
new contract after the term of the initial agreement , the Union
could not strike unless a majority of the employees in the unit
voted in favor of strike action. Clause XIV required that a sim-
ilar majority of all employees must ratify any contract before
it could become binding upon the Respondent.
It is now well settled that employer insistence upon contract
ratification by the employees is a violation of Section 8 (a) (5)
of the Act. As the Board and the courts have held, the vice in
such conduct is that the employer thereby attempts to detract
106 NLRB No. 151.