National Traffic Guard Co.

National Labor Relations Board - Board Decisions

Oct 29, 1942

45 N.L.R.B. 105 (N.L.R.B. 1942)

In the Matter of NATIONAL TRAFFIV GUARD COMPANY and STEEL
WORKERS ORGANIZING COMMITTEE
Case- No. C-2246.-Decided October 29, 1942
Jurisdiction : steel castings manufacturing industry. -
Unfair Labor Practices
Interference , Restratint , and Coercion : anti-union statements ; warning union
employees to refrain from talking.
Discrimination : discharge for union membership and activity.
Remedial Orders : cease and desist unfair labor practices ; reinstatement and back
pay .awarded.
Mr. Thomas H. Ramsey, for the Board.
Mr. William K. Meadow, of Atlanta, Ga., for the respondent.
Mr. William H. Crawford, of Atlanta, Ga., for the Union.
Mr. Ben Law, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by Steel Workers Organizing Committee,"
herein called the Union, the National Labor Relations Board, herein
called the Board, by its ' then Acting Regional Director for the Tenth
Region (Atlanta, Georgia), issued its complaint, dated May 23, 1942,•
against National Traffic Guard Company, Atlanta, Georgia, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and notice of hearing thereon were duly
served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in
substance (1) that the respondent discharged W. L. Croft on or about
April 6, 1942, and since that date has refused to reinstate him, because
of his membership and activities in behalf of the -Union and because
' After the charge was filed and , prior to the hearing , Steel Workers Organizing Com-
mittee changed its name to United Steelworkers of America.
45 N. L. R. B., No. 23.
105
t
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he engaged with other employees in concerted activities for the pur-
pose of collective bargaining and other mutual aid and protection;
and (2) that at all times since April 1, 1942, the respondent, through
its officers, agents, and supervisory employees, has interfered with,
restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act (a) by warning the employees that they
would be discharged if they became members of the Union; '(b) by
questioning the employees in regard to their union membership; (c)
by making statements to the employees derogatory to the Union; (d)
by confining the employees who were members of the Union to their
jobs and warning them against talking while at work, while not en-
forcing the said regulations as to non-union employees; and (e) by
criticizing the employees who joined the Union.
On June, 2, 1942, the respondent filed its answer, admitting that it
was engaged in interstate commerce, but denying that it had engaged
in or was engaging in the unfair labor practices alleged in the com-
plaint. The answer also averred that Croft-was discharged because
his services were unsatisfactory and because he not only did not attend
to his own duties properly but interfered with other employees in the
performance of their duties.
Pursuant to notice, a hearing was held in Atlanta, Georgia, on June
8 and 9, 1942, before Howard Myers, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board and the respondent
were represented by counsel, the Union by a duly designated repre-
sentative; all participated in the hearing. Full opportunity to be
heard', to examine and cross-examine witnesses, and to introduce evi-
dence bearing upon the issues was afforded all parties. At the con-
clusion of the hearing, the motion of Board's counsel to conform the
pleadings to the proof in matters pertaining to names, dates, and other
matters not affecting substantial issues was granted by the Trial Ex-
aminer without objection. The Board has reviewed this and other
rulings of the Trial Examiner on motions and objections to the admis-
sion of evidence and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. Subsequent to the hearing, two briefs
were submitted to the Trial Examiner by the respondent.
The Trial Examiner thereafter filed his Intermediate Report, dated
June 30, 1942, copies of which were duly served upon the parties.- He
found that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section 8
(1) and (3) and Section 2 (6) and (7) of the Act, and recommended
that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act, including the reinstate-
ment with back pay of W. L. Croft. On July 13, 1942, the respondent
filed its exceptions to the Intermediate Report and a supporting brief.
The Board has considered the respondent's exceptions and its brief.
NATIONAL TRAFFIC GUARD COMPANY 107
Insofar as the exceptions are inconsistent with the findings, conclu-
sions, and order set forth below, the Board finds them to be without'
merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT -
1. THE BUSINESS OF THE RESPONDENT
The respondent, a Georgia corporation, having its principal office
in Atlanta, Georgia, and its only plant near Decatur, Georgia, was
engaged prior to the summer of 1941 in the manufacture, sale, and
distribution of metal highway traffic guards. Since that time its main
business has been the manufacture of steel castings for the United
States Army and Navy. During 1941 the respondent purchased mate-
rials valued at approximately $100,000, of which about 75 percent
originated, outside the State of, Georgia. During the same year, the
respondent sold finished products valued at approximately $150,000,
of which about 60 percent was shipped to points outside the State of
Georgia.
II. THE ORGANIZATION INVOLVED
Steel Workers Organizing Committee, now known as United Steel-
workers of America, is a labor organization affiliated with the Con-
gress of Industrial Organizations, admitting to membership employ-
ees of the respondent.
III. THE UNFAIR LABOR PRACTICES
The Discharge of 'W. L. Croft; Interference, Retraint, and Coercion
On June 28, 1941, the respondent hired W. L. Croft and assigned
him with one other man to general labor in preparing its foundry,
which was still under construction, for work on a Government con-
tract. At the time, Croft had had about' 15 years of experience in
foundry work, of which 8 or 9 years had been spent at molding.
About August 1, 1941, the foundry was completed and production
began. Croft was made a "strawboss." In this capacity, during the
ensuing weeks, he hired a number of new employees and gave them
instructions in molding. -
Between October 1 and 15, 1941, Eugene Camp, the respondent's
general manager, who had no previous experience in foundry work,
assumed complete charge of the foundry. Croft continued his former
duties and, in addition, relayed orders from Camp to the men. Pro-
duction under this arrangement proved to be unsatisfactory, and the
respondent determined to hire an experienced superintendent. Upon
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Croft's suggestion to Paul Trammell, president of the respondent, and
after a, preliminary investigation, the respondent hired John Lally,
who had been foundry superintendent for several' years in another
plant in which Croft had worked. Lally was placed in complete,
charge of the foundry on or about November 20, 1941.
Pursuant to orders from Lally, Croft continued to instruct other
foundry workers for about a week after Lally became' superintendent;
thereafter he worked as a regular molder until his discharge on April
7, 1942, except for several days in December 1941 and January 1942
when he was delegated to work as a "strawboss" over the molders,
during Lally's absence from the plant.. When Croft was hired, he was
paid at the rate of 50 cents per hour. On February 25 and April 1,
1942, respectively, he participated in two general pay increases which
brought his hourly rate up to 65 cents at the time of his discharge.
Croft testified that, on the day Lally assumed his duties as superin-
tendent in the foundry, Lally asked him if the plant was a union shop;
that Croft replied that it was not; and that during the ensuing few
days Lally told him that he (Lally) "had trouble one time with the
CIO" and that he considered all unions to be "rotten.", Lally testified
that.he could not recall asking Croft whether the respondent's plant
was a union shop. He denied having made any statements derogatory
to unions to any of the respondent's employees. The Trial Examiner
did not credit Lally's denial in this respect; nor do we. We find that
Lally made the remarks attributed to him by Croft.
In January or February 1942, 'Roy Starnes, an organizer for the
Union, began an organizational campaign among the respondent's
employees, discussing the Union with them and distributing literature
at the plant gates. Croft soon became active in support of Starnes'
efforts. In this connection, he went to the Union's office during
February and obtained written information regarding wages 'paid
in similar plants where the Union had contracts. This information
he imparted to his coworkers. During the lunch periods of the
ensuing weeks, and until his discharge, Croft openly discussed union-
ization of the plant with about 15 other employees. On Sunday, April
5, Croft visited employees- William McGarity and Marvin Morton
at their homes, and advised them of a procedure to be followed the
next day in joining the Union. Croft requested Morton to notify
various other employees of this procedure. Morton complied with
Croft's request.
At about 7:30 a. m. on Monday, April 6, pursuant to the arrange--
ments made by Croft, a group of 10 or 12 employees met Croft at a
parking lot adjacent to the respondent's plant. Part of the power
plant at the foundry was to be repaired on that day and many of the
NATIONAL TRAFFIC GUARD COMPANY 109
employees on, the day shift were not expected to start work at their
usual hour. 'Croft obtained. permission from Lally to have the day
off to receive medical treatment for a burn he had suffered a few days
earlier. Thereafter, the group of employees proceeded in Croft's and
Morton's automobiles to the office of the Union, where they all signed
application cards and -paid initiation fees. Starnes gave Croft a
number of additional application cards- and asked him to get other
employees at the plant to sign.
The following day, at about 2:30 p. m., Lally approached Croft
in the plant. According to the uncontradicted testimony of Croft,
which we credit, as did the Trial Examiner, the following conversa-
tion took place : Lally told Croft that the respondent had no further
need of his services. To Croft's request for an explanation, Lally
replied that he had been "talking too much." Croft asked what Lally
considered he had been talking about. Lally refused to answer, say-
ing that Trammell, president of the respondent, might tell him.
After unsuccessfully attempting to locate Trammell, Croft obtained
a check for the amount due him and left the plant. He was never
given any other reason for the termination of his employment. As
of the date of the hearing, he was the only employee discharged by
Lally.
As previously stated, the respondent's answer averred that Croft
was discharged because his work was unsatisfactory and because he
not only neglected his own duties but interfered with the work of
other employees. With respect to the allegation of unsatisfactory
work, the respondent contended that Croft was responsible for a low
production rate at the foundry during the period from early October
until about November 20, 1941. The evidence shows, however, that
at all times during that period Croft was merely a "strawboss" subject
to the orders of Camp, who was inexperienced in foundry work.
Lally testified that when he first became superintendent he observed
that inadequate castings were being produced in the foundry because,
among other reasons, the sand mixture used in making molds lacked
the "proper bond." He testified further that he did not know who
was responsible for use of the incorrect formula in preparing the
sand, but that ordinarily the ' person acting as superintendent had
charge of that matter. Croft testified without contradiction, and we
find, that during the period in question Camp instructed him in the
preparation of the sand mixture and that he faithfully followed
Camp's instructions. There is no showing that Camp ever accused
Croft of deviating from his orders or of inferior workmanship in any
respect. Furthermore, during this period, the foundry was manned
for the most part by a group of new and inexperienced employees who
were learning their jobs. Under these circumstances, we cannot con-
110 DECISIONS, -OF, NATIONAL LABOR RELATIONS, BOARD
elude that Croft was responsible for low production in the, foundry
while he was a "strawboss" under Camp; or that the respondent con-
sidered him responsible; or that, even if it did consider him respon-
sible, it discharged him over 4 months later for that reason. -
No evidence was offered by the respondent to show that the quality
or quantity of Croft's production as a molder-was unsatisfactory, or
that the respondent considered it unsatisfactory. On the contrary,
employee McGarity testified without contradiction, and we find, that
on one occasion after Croft had become a regular molder, Lally re-
marked to McGarity that Croft was a "pretty good worker." As
already stated, on two occasions, in December 1941 and again in Jan-
uary 1942, Croft was delegated, to act as "strawboss" over the molders
for several days while Lally was away from the plant. Furthermore,
Croft was allowed, to participate in two general wage increases prior
to his discharge.
Lally's testimony concerning his reasons for discharging Croft is
in summary, as follows : When Lally was first hired as superintendent
of the foundry, he noticed that Croft talked too much during working
hours with other employees, thereby slowing down their work and
giving Lally the impression that Croft resented his having been hired
as superintendent. About the same time, one of the employees re-
ported to Lally that Croft had said that Lally planned to replace the
employees then in the foundry with new men from Texas. For these
reasons, Lally notified Croft in late November or early December to
"cut the gabbing and talking and let's go to work." Shortly after
Christmas of 1941, upon observing him in conversation with a co-
worker, Lally again warned Croft to stop talking unnecessarily on
the job. Croft told Lally on this occasion that he believed Lally "had
it in for him" and offered to resign if his services were considered un-
satisfactory. Lally replied, "You don't have to quit, but get out
there and do better and you can stay." On the morning of April'
7, 1942, Lally noticed on two different occasions that Croft was away
from his work, talking with other employees. He decided that
"things had come to a head" and discharged Croft, as heretofore set
forth, that afternoon.
Paul Trammell, president of the respondent, testified, with neither
confirmation nor contradiction from Lally, that in November 1941
,Lally told him that the employees in general and Croft in particular
were wasting too much time talking; that 2 or 3 weeks later Lally
reported again that Croft was talking too much in the plant and
Trammell suggested that Lally discharge Croft if he saw fit; and
that Trammell and Lally had no further conversations on this point
until after Croft's discharge.
Croft testified that on various occasions he had talked with em-
ployees engaged in work with or near him, but denied that he had
NATIONAL TRAFFIC GUARD COMPANY 111
stopped his own work in so doing. He also denied that he had ever
left his work during hours of duty to engage in conversation with
other employees. Croft testified that prior to April 7, 1941,,when
he was discharged, Lally reprimanded him on only one occasion, that
being shortly after Christmas of 1941, for alleged talking and that
on that occasion, although he had been talking with his helper, he
had not stopped his work.. Croft denied having told other employees
that Lally would replace them with new men from Texas.
There is no showing that'the respondent had any formal published
plant rule against talking while at work. The respondent's position
as to Croft, therefore, must be construed to mean that, by excessive
talking, despite warnings, Croft impeded production and interfered'
with discipline. The testimony of eight employees, other than Croft,
five of whom were called as witnesses by the Board, and three by the
respondent, establishes conclusively, and we find, that talking at the
plant during working hours was very common. Although five wit-
nesses alleged that they had seen Croft talking with others, or had
themselves conversed with him in the plant, it does not appear from
their testimony that Croft talked to an unusual extent during work-
ing hours. Nor does it appear from the entire record that Croft's
conversations impeded production or interfered with discipline to
a greater extent than the conversations of numerous other employees.
Moreover, the evidence shows that in many cases the respondent
did ,not seriously object to talking in the plant. Thus, according to
the undisputed, testimony of employee Wilson, whom we- credit,
Night Foreman Richardson himself was guilty of talking with im-
punity in the plant on matters outside his line of duty when, 2 or
3 weeks after Croft's discharge, Richardson touched a union button
Wilson was wearing and remarked in the presence of another em-
ployee, "That caused me to lose out on a damned good job where
I come from." Employee Morton testified that after Lally became
superintendent, the molders and their helpers' would often congre-
gate and talk while steel was being poured and, on such occasions,
Lally or Night Foreman Richardson would simply "tell them, to get
scattered." Similarly, employee Hubbard testified that several times
after he was hired on June 15, 1942, each of the group of molders
with whom he worked had been "more or less" guilty of talking but
that Lally "doesn't ever say anything out of the way, he just tells
us in a nice way that we should be on our job and not talking." The
foregoing testimony of Morton and Hubbard is undisputed and we
credit it.
The nature of Lally's warnings against talking immediately after
April 6, when •10 or 12 employees under Croft's leadership joined the
Union, is, in marked contrast with that of his warnings at other
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
times. Thus, according to the uncontradicted testimony of em-
ployees Yancy, Morton, Thompson, and McGarity, which we credit,
the following occurred on April 7 and 9: On April 7 Lally asked
Yancy in the plant how he liked his work and wages and, to Yancy's
reply that he was satisfied, stated that, "there was lots of talk going
on around down there- that -had to be stopped-or else he was go-
ing to fire half a dozen and put a dozen back in their places.", On the
same day Lally asked Morton if he was satisfied with -working under
his [Lally's] rules. Morton stated that he was and Lally added that
there was "lots of fool talk going on, and standing around that had
to be stopped" or he was going to "fire every man that was in it."
There is no showing that either Yancy or Morton had been talking
outside his line of duty immediately prior to the foregoing conversa-
tions with Lally. As noted, however, Morton had, at Croft's re-
quest, notified various employees on April 5 of Croft's plan for a
group to join the Union on April 6, and had himself joined. Also
on April 7, Thompson met Croft for a moment at the drinking
fountain and started to talk with him; Lally immediately approached
the two men and asked Thompson to go with him to the office. There
Lally told Thompson that he "would have-to quit talking, or else."
Although on other occasions Thompson had frequently spoken with
his fellow employees during working hours, the above is the only
instance cited of his ever being reprimanded for such -conduct. On
-April 9 Lally warned McGarity that he had been "talking to the men
too much" and that he thought-McGarity was a "pretty-good-fellaw,"
but that he had turned out otherwise. It'does not appear that Mc-
Garity had been talking outside his line of duty immediately prior
to Lally's warning. He had however, joined the Union on April 6.
We find, on the basis of all the evidence, that Lally knew or sus-
pected on April 7 that Croft had joined the Union and taken a leading
part in urging others to join; that Lally's remarks to Yancy, Morton,
and Thompson on April 7 and to McGarity on April 9 indicate a prej-
udice against them because of their known or suspected union activity
and association *ith Croft. In,the light of the- entire record we are
convinced, as was the Trial Examiner, that the respondent did not
discharge Croft, an experienced employee with a good record as a
worker, merely because he talked during working hours. In. view
of Croft's outstanding leadership in efforts to organize the respond-
ent's employees , the fact that his discharge occurred on the day after
he had induced a substantial proportion of the-employees to join the
Union en masse, the 'respondent's failure to offer a credible explana-
tion of its reasons for discharging hint, and the expressed hostility of
Superintendent Lally and Night Foreman Richardson- to unions, we
find, as did the Trial Examiner, that the respondent discharged W.
t
NATIONAL TRAFFIC GUARD COMPANY 113
L. Croft because of his membership in and activity on behalf of the
Union, thereby discriminating in regard to his hire and tenure of
employment, discouraging membership in the Union, and interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
We further find that the respondent, by the anti-union statements
of •Supe'rintendent Lally and Night Foreman Richardson set forth
above, and by its warnings to union employees to refrain from talking,
has interfered with, restrained, and coerced its employees in the ex=
ercise of the rights guaranteed in Section 7 of the Act.
IV. THE .EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Since we have found that the respondent has engaged in certain
unfair labor practices, we shall order it to cease and desist therefrom
and take certain affirmative action which we find necessary to effectuate
the policies of the Act.
We have found that the respondent, by discharging W. L. Croft,
has discriminated in regard to his hire and tenure of employment,
thereby discouraging membership in the Union. We shall, there-
fore, order the respondent to offer him immediate and full rein-
statement to his former or substantially equivalent position without
prejudice to his seniority and other rights and privileges and to make
him whole for any loss of pay he has suffered by reason of his dis-
charge by payment to him of a sum of money equal to that which he
normally would have earned as wages from the date of his discharge
to the date of the respondent's offer of reinstatement, less his net
earnings,2 during said period. ,
2 By "net earnings " Is meant earnings less expenses , such as for transportation , *room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Woi leers Union, Local 2590, 8 N. L. R . B. 440. Monies
received for work performed upon Federal , State, county , municipal , or other work-relief
projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B,
311 U S 7
493508-43-vol. 45-8
114 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLusIONs OF LAW
1. Steel Workers Organizing Committee, now known as United
Steelworkers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization, within the meaning of Section
2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1)'of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of W. L. Croft, thereby discouraging membership in Steel
Workers Organizing Committee, now known as United Steelworkers
of America, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning 'of Section 8 (3)' of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act. I
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, National Traffic Guard Company, Atlanta, Georgia, and
its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Steel Workers Organizing Com-
mittee, now known as United Steelworkers of America, 'or any other
labor organization of its employees, by discharging any of its em-
ployees or in any other manner discriminating in regard to their hire
and tenure of employment, or any term or condition of their
employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of 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 concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
NATIONAL TRAFFIC GUARD COMPANY
1
115
(a) Offer to W. L. 'Croft immediate and full reinstatement to his -
former or substantially equivalent position without prejudice to his
seniority and other rights, and privileges;
(b) Make whole the said W. L. Croft for any loss of pay he may
have suffered ,by reason of the respondent's discrimination in regard
to his hire and tenure of employment by payment to him of a sum
of money equal to that which he normally would have earned as wages
during the period from the date of his discharge to the date of the,
respondent's offer of reinstatement, less his net earnings during said
period ;
(c) Post immediately in conspicuous places in its plant, located
near Decatur, Georgia, and maintain for a period of at least sixty (60,)
consecutive days from the date of posting, notices to its employees
stating : (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a) and (b)
hereof; (2) that the respondent will take the affirmative action set
forth in paragraphs 2 (a) and (b) hereof, and (3) that the respond-
ent's employees are free to become or remain members of Steel Workers
Organizing Committee, now known as United Steelworkers of Amer-
ica, and that the respondent, will not discriminate against any
employee because of, such membership;
(d) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
MR. WM. M. LEISERSON took no part in the consideration of the above
Decision and Order.