Philadelphia Gear Works, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1946

69 N.L.R.B. 11 (N.L.R.B. 1946)

In the Matter of PHII.AD1:IPHLA GEAR WORKS, INC. and INTERNATIONAL.
ASSOCIATION OF MACHINISTS, DISTRICT LODGE #1
6Case No. f-G-1 59.-Decide T June 26 , 19,1
Mr. Herman Lazarus. for the Board.
Mr. Francis 1V. Sullivan, of Philadelphia, Pa., for the respondent.
Mr. Thomas A. Ricci, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
T?pon a charge duly filed on October 18, 1944, by International As-
sociation of Machinists, District Lodge #1, herein called the Union,
the National Labor Relations Board, herein called the Board, by the
Regional Director for the Fourth Region (Philadelphia, Penusyl-
vania), issued its complaint dated March 10, 1945, against Philadel-
phia Gear Works, Inc., herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1), (3), and
(4) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint, together
with 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 Harry Grant Wil-
kinson on October 16, 1944, and has since refused to reinstate him, be-
cause he gave testimony under the Act and because of his membership
in and activities on behalf of the Union; and (2) that by the fore-
going, and by disparaging and criticizing the Union and the Congress
of Industrial Organizations, by threatening its employees with eco-
nomic reprisals in the event that either of the foregoing labor organ-
izations became their bargaining agent, by accusing the employees of
causing a loss of production by their concerted activities, by urging the
employees to remain members of Gear Workers Independent Union,
herein called the Independent, and by questioning them concerning
69 N. L. R. B., No. 3.
11
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their union affiliation, the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act. On March 12, 1945, the respondent filed its answer in
which it admitted that it had discharged Wilkinson, but denied that
his discharge was discriminatory or that it had engaged in any
unfair labor practice.
Pursuant to notice, a hearing was held at Philadelphia, Pennsyl-
vania, on April 19 through April 21, 1945, before Henry J. Kent, the
Trial Examiner duly designated by the Chief Trial Examiner. The
Board and the respondent were represented by counsel and partici-
pated in the hearing: Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the is-
sues was afforded all parties.
At the close of the Board's case in chief, and again at the close of
the entire hearing, the respondent moved to dismiss the complaint
in its entirety. The Trial Examiner denied the first motion without
prejudice to later renewal and, after reserving decision on the second
motion, denied it in his Intermediate Report. He granted, without
objection, a motion by counsel for the Board to conform the pleadings
to the proof with respect to names, dates, and other minor recitals.
During the course of the hearing, the Trial Examiner ruled on other
motions and on objections to the admission of evidence. The Board
has 'reviewed the rulings of the Trial Examiner and finds that he com-
mitted no prejudicial error. For reasons hereinafter indicated, we
hereby reverse the Trial Examiner's denial of the respondent's motion
to dismiss the complaint. His remaining rulings are hereby affirmed.
On June 81 1945, the Trial Examiner issued his Intermediate Report,
copies of which were duly served upon the parties, finding that the re-
spondent had discriminatorily discharged Harry Grant Wilkinson
and otherwise interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed by the Act, and recommending
that it cease and desist therefrom and take certain affirmative action
designed to effectuate the purposes of the Act. Thereafter, the re-
spondent filed exceptions to the Intermediate Report and supporting
briefs. The Union has not filed any exceptions.
Pursuant to notice, the Board, on January 15, 1946, heard oral argu-
ment at Washington, D. C. The respondent and the Union appeared
and participated in the argument. The Board has considered the
Intermediate Report, the respondent's exceptions and briefs, the con-
tentions advanced at the oral argument before the Board, and the
entire record, and finds that the exceptions, insofar as they are con-
sistent with the findings, conclusions, and order hereinafter set forth,
have merit.
PHILADELPHIA GEAR WORKS, INC. 13
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. TIIE BUSINESS OF THE RESPONDENT
Philadelphia Gear Works, Inc., a Pennsylvania corporation, has
its main office and place of business in Philadelphia, Pennsylvania,
where it is engaged in the manufacture, sale, and delivery of gears,
speed reducers, and other transmission machinery. During the year
1944, the respondent used raw materials valued at approximately
$1,500,000, of which approximately 40 percent was transported to its
plant in Philadelphia from points outside the Commonwealth of
Pennsylvania. During the same period, the respondent sold products
valued in excess of $3,000,000, of which approximately 62 percent was
shipped from its Philadelphia plant to points outside the Common-
wealth of Pennsylvania.
The respondent admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
It. THE ORGANIZATION INVOLVED
International Association of Machinists, District Lodge #1, is a
labor organization admitting to membership employees of the re-
spondent.
Ill. TIIE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of events
Prior to 1940, there came into existence among the respondent's
employees, the Gear Workers Independent Union, an unaffiliated
labor organization. The last of its several yearly contracts with the
respondent, executed on August 27, 1943, by its terms was to remain
in effect until September 30, 1945, and annually thereafter. The con-
tract was signed by Harry Grant Wilkinson as president, on behalf
of the Independent and provided, in part, as follows :
It is mutually agreed that this agreement cannot be assigned by
either party and that it shall become null and void if either party
is succeeded by any other organization.
During February and March 1944, the Union herein and the United
Electrical and Machine Workers of America, affiliated with the Con-
gress of Industrial Organizations, instituted separate campaigns for
membership among the respondent's employees. At a membership
meeting of the Independent on May 8, 1944, after a union representa-
tive and a C. I. O. organizer had addressed the meeting by invitation,
a resolution was passed to investigate the advisability of disbanding
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Independent and affiliating with a national labor organization.
On June 8, 1944, the Executive Committee of the Independent recom-
mended dissolution, and, at the next membership meeting on July 15.
1944, it was resolved to call a special membership meeting to vote
on the proposed dissolution.
On the following day, the respondent's president, Russell Ball,
requested a meeting with the Independent shop committee, consisting
of employees Wilkinson, James Orain, Joseph Ekies and William
Feather. Present at the conference, in addition to President Ball,
were Vice-President and Plant Manager Robert Coulter and Super-
intendent Malcolm Riddle. Ball creditably testified that he knew of
the action taken by the Independent on the previous evening, that the
distribution of A. F. L. and C. I. O. circulars was causing unrest in
the plant, and that he called the meeting in order to discuss the situa-
tion generally with the president of the Independent and the shop
committee in an attempt to improve conditions in the shop.
According to the creditable testimony of Wilkinson and Feather,
uncontradicted and substantially corroborated by the three manage-
ment representatives present, Ball opened the meeting by telling the
committee that the plant had been awarded another star for its Army
and Navy "E" flag because of high production during the preceding
6 months; that some of the Navy inspectors in the plant had recently
complained to him about lax discipline and the increase in absenteeism
which they claimed were slowing production, and that he wished to
know what caused this increased absenteeism as lie did not want the
Navy to take over the business; he then told the committee that wage
increases of 15 to 25 percent, as promised in A. F. L. and C. I. O. leaf-
lets which Ball showed the committee, could not be given because of
National War Labor Board wage ceilings and because wages then
paid by the respondent compared favorably with prevailing rates in
the area as established by the National War Labor Board.
Ball then referred to the movement aimed at the dissolution of the
Independent. According to Wilkinson, Ball ,aid, "I understand you
fellows are causing a lot of confusion and commotion in the plant by
the action that took place at the union meeting last night," and, after
stating that the officers of the Independent, especially Wilkinson,
were particularly active, asked Wilkinson what he had to say about it ;
Wilkinson did not reply. According to Feather, a shop committee
member, Ball said that he had learned of the decision reached at the
meeting of the Independent, and lie "wasn't very pleased with it, trying
to break up the Independent Union to get an outside organiza-
tion . . .," and that he had heard that Wilkinson was the ring leader.
Feather also quoted Ball as having said that "Things were going along
as good as they possible could," and, "He couldn't see why they [the
PHILADELPHIA GEAR WORKS, INC. 15
employees] wanted an outside organization in there." Both Wilkin-
son and Feather testified that Ball stated that the employees should
adhere to the 1943 contract. We credit the testimony of Wilkinson
and Feather referred to in this paragraph.
Riddle, the superintendent, creditably testified that Ball asked
Wilkinson "if his signature on the contract did not mean anything"
and "why lie was so active." Ball creditably testified that he told
Wilkinson of complaints that Wilkinson was "putting pressure" on
other employees to join another union, and that, referring to the 1943
contract, Ball asked Wilkinson "haven't you any respect for your
signature?"
In accordance with a resolution adopted at its June 1 meeting,
the Independent met again on July 17 and voted to disband as of
August 23, 1944, and its officers notified the respondent of this action
by letter dated August 2, 1944. On October 7, 1944, the I'nion filed
a petition for investigation and certification of representatives under
Section 9 of the Act, upon which a hearing was held before a Board
Trial Examiner on October 11, 1944. Pursuant to a Decision and
Direction of Election issued in that proceeding,` an election was held
among the respondent's production and maintenance employees. The
Union won the election and was certified by the Board on November
24, 1944.
B. The alleged di.scemni;vatorij discharge of Harry Oiuiit Wilkin.so,i
Wilkinson entered the respondent's employ in 1940 as a turret-
lathe operator on the night-shift, where he worked on a piece-work
basis until 2 months before his discharge, when lie was transferred
to the day shift on an hourly pay basis. He became president of the
Independent in September 1942. He testified creditably that, follow-
ing the distribution of A. F. L. and C. I. O. literature among the
respondent's employees, in the early part of 1944, he openly advocated
disbanding the Independent; that he took a leading role toward that
goal at subsequent meetings of the Independent and of its Executive
Committee; and that thereafter he was active in soliciting member-
ship in the t nion, obtaining 30 to 35 cards. He was the only employee
who testified for the Board at the representation hearing on October
it; and was discharged on October 16, 1944, under circumstances dis-
cussed below. The complaint alleges that he was discharged because
i Wilkinson and Feather also testified that din ing the meeting Ball said that the em-
pIoti ees could picket the plant, and inasmuch as he did not need money-, he could stop
operations and permit the Navy to take over Ekies another shop committeeman who
was present at the conference, did not mention such statements in his te^tunoni Oram
did not testify Ball, corroboiated by Coulter and Riddle, denied having made such state-
ments Like the Trial Examiner, we credit their denials
2 ilatte, of l'hiladelph a Gear Wo, ks, Inc . 58 N L R L' 1478
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his union activities and because he gave testimony at the Board
hearing, and that the respondent thereby violated Section 8 ,3) and
(4) of the Act.
The respondent admits that it knew of Wilkinson's position of
leadership among the employees and of his outspoken attitude in the
movement to disband the Independent and in the Union's recruiting
campaign. It denies, however, that his union activities or his appear-
ance as a Board witness motivated the respondent's decision to dis-
charge him. It asserts, rather, that he was discharged because of
excessive absenteeism, low production, and loafing during working
hours. There is evidence in the record supporting these contentions.
On July 31, 1944, about 2 weeks after the dissolution of the Inde-
pendent, the respondent announced that its night shift would be
terminated. In order of their seniority, the lathe operators on the
night shift were offered positions on the day shift.' Foreman George
Weilenman creditably testified without contradiction that Wilkinson
chose to operate all engine lathe and requested that he be put on an
hourly pay basis. His hourly rate of pay was established at $1.00.
On August 15, after a 1-week vacation, Wilkinson entered on his new
position.
On October 13, 1944, Wilkinson together with employees Gustav
Obermeyer and Hoffecker were called to Superintendent Riddle's
office and advised that their production was very low and that it must
be raised on pain of discharge. Riddle told them that their records
would be reviewed a few weeks later.4 Wilkinson was also questioned
about his absenteeism and in response to such questioning, stated that
he "hadn't been feeling so well and that it was just inexcusable."
About 3: 00 o'clock of the same day, Plant Manager Coulter discovered
Wilkinson in the men's room sitting on a box engaged in conversation
with three other employees. Wilkinson admitted this infraction of
the respondent's plant rules, which Coulter reported to Assistant
Superintendent Leon Brown. On the following day, Wilkinson did
not report to work and Riddle thereupon instructed Brown to dis-
charge Wilkinson. On Monday, October 16, when Wilkinson reported
for work, lie was discharged by Brown who, according to his uncon-
S Wilkinson testified that most of the 20 to 28 lathe operators on the night shift favored
dissolution of the Independent and that , although the announcement of discontinuance
referred to the entire night shift with some exceptions , it provided , in effect, for the eliin-
ination only of the night lathe department . There is no allegation in the complaint that
the respondent di-continued the night shift in order to impede the Union 's organizational
campaign Wade Bowman, the respondent' s industrial engineer , and President Ball, cred-
itably testified «ithout contradiction that this step was taken because of excessive ab-
senteeism, low production, and incompetent supervision during the night shift. Like the
Trial Examiner, we find that the termination of the night shift was not motivated by a
desire to discriminate against the lathe operators , because of their union activities
4 According to the unimpeacbed testimony of Riddle, which we credit, the work of
Obermeyer, a union shop-committee man, improved and he was retained, while that of
Hoffecker did not and lie was discharged on November 20, 1944, for inefficiency
PHILADELPHIA GEAR WORKS, INC. 17
tradicted testimony, which we credit, gave as a reason, "his poor
attitude towards his work and the fact that he had not reported to
work again Saturday, and the incident in the toilets had climaxed
the affair."
The respondent's records show that from the time Wilkinson entered
on his day-shift duties, he averaged 401/2 hours weekly and his average
earnings were 781/9 cents an hour, and that during the last 21/2 months
which he spent on the night shift he averaged 50 hours a week and
$1.29 an hour.5 While Wilkinson was on the day shift, the average
work week in the lathe department was 53 hours. As stated above,
Wilkinson's night shift was on a piece-work basis and his day shift
was on an hourly basis. Any dereliction in the performance of his
duties on the night shift was, therefore, reflected in his income, while
his production on the day shift did not affect his pay and any differ-
ence between his hourly rate and his production, of necessity, was made
up by the respondent. Although the respondent admitted that average
hourly earnings of 92 cents would have been satisfactory in view of
the acute labor shortage, Wilkinson achieved this rate only twice
during the 9-week period.
The Trial Examiner concluded that Wilkinson was discharged be-
cause of his union activities and for giving testimony at the representa-
tion hearing. We cannot agree.
It is clear from unimpeached records of the respondent that Wilkin-
son's efficiency had seriously deteriorated during the last 2 months of
his employment; his men's room conversation during working hours
on October 13, and his absence on October 14, following immediately
upon a warning by the respondent, give proof of his lack of interest
in his job. Although Wilkinson's persistence in urging dissolution of
the Independent in the face of the respondent's expressed disapproval,
and the fact that his discharge followed closely upon his appearance
as a witness in a Board hearing, give rise to suspicion as to the real
motive underlying his discharge, we are of the opinion that the evi-
dence in the record is insufficient to warrant a finding of discrimination
in his discharge, either in violation of Section 8 (3) or of Section 8 (4)
of the Act.
In his appraisal of the entire case, the Trial Examiner also found
that Ball's statements to the shop committee on June 16, viewed as
part of the respondent's total conduct, were coercive and thus consti-
tuted interference, restraint, and coercion violative of the Act. In
view of our finding with respect to the discharge of Wilkinson, while
not free from doubt, we are of the opinion that Ball's remarks, stand-
ing alone, were not coercive within our usual definition of the term.
5 Testimony given by Wilkinson as to his night -shift attendance during each of 6 weeks,
having been selected from a 5 -month period , is thus of little weight
701592-47-vol. 69-3
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence in the record being insufficient to support any of the
allegations in the complaint, we shall dismiss the complaint in its
entirety.
Upon the foregoing findings of fact and upon the entire record in
the case, the Board makes the following :
CONCLUSIONS OF LAW
1. The operations of the respondent, Philadelphia Gear Works, Inc.,
Philadelphia, Pennsylvania, herein involved, occur in commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. International Association of Machinists, District Lodge #1, is a
labor organization within the meaning of Section 2 (5) of the Act.
3. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (1), (3), or (4) of the Act, as alleged in
the complaint.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint herein against the respondent,
Philadelphia Gear Works, Inc., Philadelphia, Pennsylvania, be, and
it hereby is, dismissed.