Van Pelt Corp.

National Labor Relations Board - Board Decisions

Sep 29, 1964

148 N.L.R.B. 1415 (N.L.R.B. 1964)

SERVICE STEEL DIVISION OF VAN PELT CORPORATION 1415
RECOMMENDED ORDER
In view of the foregoing findings of fact and conclusions of law, it is recommended
that the complaint be dismissed in its entirety.
Service Steel Division of Van Pelt Corporation and Local 247,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, Ind . Case No. 7-CA-4443.
September 29, 1964
DECISION AND ORDER
On June 23, 1964, Trial Examiner Lloyd Buchanan issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices in violation of Section 8 (a) (1) of the Act, as set forth in the
attached Trial Examiner's Decision. With respect to certain other
unfair labor practice allegations, the Trial Examiner recommended
dismissal. Thereafter, the General Counsel filed exceptions to the
Trial Examiner's Decision and a supporting brief. The Respondent
filed a brief in answer to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
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 Trial Examiner's Decision, the excep-
tions, briefs, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
I No exceptions were filed to the Trial Examiner ' s findings that the Respondent unlaw-
fully interrogated and threatened its employees in connection with their union activities
in violation of Section 8(a) (1) of the Act.
TRIAL EXAMINER'S DECISION
The complaint herein ( issued January 2 , 1964; charge filed October 30, 1963)
alleges that the Company has violated Section 8(a)(3) of the National Labor Re-
lations Act , as amended , 73 Stat. 519 , by discharging and failing to reinstate Henry J.
148 NLRB No. 143.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Needham on or about October 28 , 1963, because of his protected concerted activities;
and Section 8 (a) (1) of the Act by said alleged acts and by interrogation of, and
threats to, its employees in connection with their union activities and desires. The
answer alleges that Needham was laid off because his services were not needed.
A hearing was held before Trial Examiner Lloyd Buchanan in Detroit , Michigan,
on February 19, 1964. At the close of the hearing the General Counsel argued
orally. Pursuant to leave granted to all parties , a brief has been filed by the General
Counsel.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
I. THE COMPANY 'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted , and I find, that the Company, a Michigan corporation with prin-
cipal place of business in Detroit , Michigan , maintains plants in other States of the
United States , and is engaged in the purchasing, sale, and warehousing of tubing and
related products ; that during 1963 the Company purchased and caused to be deliv-
ered to its Detroit plant , directly from points located outside the State of Michigan,
-goods and materials valued at more than $1 ,000,000; and that it is engaged in com-
merce within the meaning of the Act.
It was admitted , and I find, that the Union is a labor organization within the mean-
ing of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The alleged independent violation of Section 8(a)(1)
1. Threats
On or about October 28 , Walsh, assistant foreman and a supervisor within the
meaning of the Act, told employee Burrell that his superiors had told him to cut down
on overtime , to send the union men home , and to make it as hard on them as possible.
Connected with union activities , this was an unlawful threat . While explaining that
he had spoken of cutting down on overtime because there was not enough work,
Walsh admitted that when another employee , Eatmon, said that he figured that
bonuses and overtime would be lost if the Union came in, his reply was that Eatmon
- was probably right. This was no • less a threat because Eatmon broached the subject.
Although Superintendent Smyth denied generally that he threatened loss of work,
overtime , or other benefits in connection with union membership , his evident uncer-
tainty throughout impels me to accept Needham 's testimony that on October 25 Smyth
told him that , if the men wanted a union, he did not care, but would "just cut their
overtime down."
2. Interrogation
Although he first denied that he had asked employees whether they had signed
union cards, Smyth testified that he did inquire of them whether they had been ap-
proached to sign cards . Supporting the allegation of Smyth 's interrogation, is the
testimony that he spoke to another employee about having "started the Union ," asked
still another who had done that , and questioned one employee about another em-
ployee 's stand. Smyth did admit that he asked Needham whether he had heard any-
thing about the Union ( for its bearing on discrimination , infra, this appears to be
less significant than the questions to others concerning their own activity or sym-
pathy ); then that he may have asked men whether they had signed a card, and
finally that he did ask two or three whether they were for the Union. Smyth 's ques-
tions, with the context of threats already found , constituted unlawful interference
with employees ' union activities , as alleged . These violations are clear despite coil-
fusion and error with respect to dates.
B. The alleged violation of Section 8(a)(3)
The element of company animus to support the allegation of discrimination in
-connection with Needham's termination on October 28 can be noted in the interfer-
ence found and in Smyth 's statement to Burrell on the morning of October 28 that
SERVICE STEEL DIVISION OF VAN PELT CORPORATION 1417
the Union might be good in some places, but not in this plant; and that he had him-
self quit at two or three other places when a union got in. Interestingly and accord-
ing to Burrell , Smyth spoke of some of the older men (Needham was not one of
these ) trying to get the Union in and to lead the younger ones astray.
With respect to company knowledge of union activities by Needham as distin-
guished from union activities generally, there is no evidence of substantial union
activity by Needham which could be the subject of any knowledge. As requested by
Burrell, who arranged it, he served as messenger , got the cards from the Union, and
gave them to Burrell in the parking lot outside the plant. Whether he engaged in any
other union activity inside the plant, we do not know. As for the Company's possible
impression or belief concerning such activity by Needham, the evidence consists of
the testimony that, when Smyth arrived on Monday morning, he received a report
that the boys were ganging up and talking union; that he went down the line, inquir-
ing first of Needham (already noted), who replied that he had seen the boys congre-
gating and talking about it; and that probably after Smyth had, on October 24 or 25,
asked Martillini, a driver, who was picking up some tubing for another company,
whether he was trying to organize for the Union,' he saw Needham and Martillini
talking for some 5 to 15 minutes, allegedly turned "red and purple," and finally
walked away saying nothing. Admittedly, Smyth who testified that he did not recall
the incident, may have been "burnt up" because Needham was wasting time.
None of this indicates a company belief or impression of Needham 's union activi-
ties, existent or nonexistent . In fact, the small plant rule ,2 with or without such
knowledge as the General Counsel claims should be imputed to the Company via
other employees,3 would here indicate the converse: that the Company knew that
Burrell was more active in behalf of the Union , while Needham 's activities were mini-
mal.4 Nor is a finding of discriminatory discharge to be based on Smyth 's testimony
that he assumed that a conversation between Needham, Burrell, and another em-
ployee was about the Union on the morning of October 28 when, as we recall, he was
told by Needham and others that the boys were talking about the Union. Testimony
that employees spoke to Wilson, the Company's secretary, concerning union organiz-
ing and asked him what they could do to stop it, his reply being that he could not
advise them in any way, and all of this apparently after October 28, does not suggest
company knowledge of Needham's activities as a cause of his termination. So far
as company knowledge or belief of Needham's union activities is concerned, we have
little more than a vacuum occupied by a claim. In the light of virtual absence of
union activity by Needham, and in view of inferred company knowledge of such
inactivity (or lack of proof of company knowledge if the small plant rule be not
followed), the alleged lack of work cited by the Company as a defense would be
quite unnecessary and unimportant but for the suspicion aroused by the evidence
offered to support it . In this connection we must consider claims that absentees now
returned to work, and that work fell off.
As to absentees , and despite Smyth 's apparent exaggeration of the number who-
had been away immediately before October 28, it is clear that four employees were
absent for the week ending October 24, and one of these for the following week, with
another out for half of the latter period. Two or three more men were thus available
when Needham was terminated than had been the week before.
There is some, but not altogether conclusive, evidence that work did fall off, the
records showing that during the month beginning with the last week in October pay-
i Smyth's erroneous charge that Martillini had brought application cards into the plant
indicates the Company's lack of knowledge of the activities of specific employees
2 'Wiese Plow Welding Co , Inc., 123 NLRB 616.
S Some testimony in this latter connection was received on the General Counsel 's assur-
ance that it would show company knowledge of Needham 's activities. Further , citing the
Board's aversion to per se findings, the General Counsel , while relying on the small plant
rule, has urged that knowledge of rank -and-file employees can be imputed to the employer
by inference
' If we rely on the Company 's imputed knowledge that Needham signed a union card on,
the morning of October 23 (this was his sole union activity in the plant aside from the
general union talk concerning which Smyth questioned him and various others), dis-
criminatory discharge might be expected to have occurred on that day or at the end of
the workweek on the following day
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments for shipments from the plant fell off slightly mole than 20 percent. It does
stand without contradiction that about October 20, the plant had caught up with an
extra load of work which it had acquired as the result of the flooding of the Com-
pany's Buffalo plant (absences were at the nadir at the end of September and the first
half of October); and in support of this is the evidence that three or four men em-
=ployed through Manpower, Inc., were now let go, the last of.them during the week
ending October 20 If we cannot rely on all of the Company's testimony, it does
nevertheless appear that a smaller complement was needed and that those hired
through Manpower were terminated before October 28.
While Needham was the only one of the terminated employees who was hired by
the Company directly, he had the least seniority among the Company's own em-
ployees. (He was kept on after the last of the Manpower people was terminated.)
True, he was not told when he was hired 2 months before that employment would
be temporary. Whatever the Company's expectation at that time (of which we have
no testimony), neither was he told that his employment was permanent or long-term.
It can be understood that, since he had worked at the Company for a year, through
Manpower, at an earlier period, it would prefer to hire him when it did rather than
someone else through Manpower, who would need to be trained like the others thus
indirectly employed.
As for an employee's testimony that, when on occasion there was insufficient work,
men were assigned to cleanup and repair jobs, it does not appear from the testimony
of others that there has been a general lack of work, one of them testifying that there
had not been any slack periods during his 8 years of employment. Another, employed
21 years (all of these were called by the General Counsel), testified that, when work
was slack, the Company cut hours; but that this had happened after the war.
In thus touching all of the bases,5 we note the point made that Needham's last
check bore the notation, "Final." Since he was being laid off, it was indeed his final
check That word does not deny the possibility of reemployment or a company will-
ingness, as alleged, to reemploy should need arise. The fact is that no one has been
hired since October 28.
One suspicious circumstance is the fact of discharge after 2 days of the workweek,
which begins on Friday. But the explanation here lies in the exaggerated explana-
tion concerning absenteeism: of the four men absent the week before, three were
back at work on the 28th. Smyth's testimony that he was still short of men on the
25th is supplemented by the absentee records for the weeks ending October 24 and 31.
Furthermore, the last of the Manpower men had been terminated after he had worked
only 1 day of the week ending October 20. Although we realize that he was not
employed directly by the Company, it is clear that it was not deemed necessary to
complete the individual's employment for the week when there was no need for him.
Surely with the purest motives, the General Counsel urges pure suspicion. But a
decision based thereon would indeed be impure. It has not been shown that Need-
ham's union activities prompted his termination or the failure to reinstate him.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company, set forth in section II, above, occurring in connec-
tion with the operations described in section I, above, have a close, intimate, and sub-
stantial 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.
IV. THE REMEDY
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist there-
from, and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Company, by unlawful interrogation and threats, inter-
fered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of
the Act. I shall therefore recommend that the Company cease and desist therefrom
and from any like or related conduct.
51 have not overlooked the claim that Smyth had Needham In mind when he spoke of
"a couple of hillbillies" trying to start something. Needham is from Virginia.
SERVICE STEEL DIVISION OF VAN PELT, CORPORATION 1419
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Local 247, International Brotherhood of Teamsters , Chauffeurs , Warehousemen
& Helpers of America, Ind., is a labor organization within the meaning of Section
2(5) of the Act.
2. By unlawfully interrogating its employees and threatening reprisals in connec-
tion with their union membership, activities , and desires , thereby interfering with,
restraining , and coercing employees in the rights guaranteed in Section 7 of the Act,
the Company has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a)(1) of the Act.
3. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and ( 7) of the Act.
4. The Company has not engaged in unfair labor practices within the meaning of
Section 8 ( a) (3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Company , Service Steel Division
of Van Pelt Corporation, Detroit, Michigan , its officers , agents, successors, and
assigns , shall:
1. Cease and desist from:
(a) Unlawfully interrogating its employees or threatening reprisals in connection
with their union membership , activities , or desires. -
(b) In any like or related manner interfering with , restraining , or coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Post at its plant in Detroit , Michigan , copies of the attached notice marked
"Appendix " 6 Copies of said notice, to be furnished by the Regional Director for
Region 7, shall , after being duly signed by the Company's representatives , be posted
by the Company immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter , in conspicuous places, including all places where notices
to its employees are customarily posted . Reasonable steps shall be taken by the
Company to insure that said notice is not altered , defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 7, in writing , within 20'days from
the receipt of this Decision , what steps have been taken to comply herewith.?
It is further recommended that the complaint be dismissed insofar as it alleges
violation of Section 8 (a) (3) of the Act.
e If this Recommended Order be adopted by the Board , the words "a Decision and
Order" shall be substituted for the words " the Recommended Order of a Trial Examiner"
in the notice . If the Board ' s Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words " a Decree
of the United States Court of Appeals , Enforcing an Order" for the words " a Decision
and Order"
71f this Recommended Order be adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 7, in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT unlawfully interrogate our employees or threaten reprisals in
connection with their union membership , activities , or desires.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the rights guaranteed in Section 7 of the Act.
SERVICE STEEL DIVISION OF VAN PELT CORPORATION,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 963-9330„
if they have any question concerning this notice or compliance with its provisions..
Phillips Manufacturing Company and International Union,,.
Allied Industrial Workers of America, AFL-CIO. Cases Nos.
13-CA-5784, 13-RC-9426, and 13-CA-5905. September 29, 1964
DECISION AND ORDER
On April 21, 1964, Trial Examiner William J. Brown issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist therefrom and take,
certain affirmative action. The Trial Examiner further found that
the Respondent had not engaged in certain other unfair labor prac-
tices alleged in the complaint and recommended that the complaint
be dismissed with respect to the latter allegations. In addition, the
Trial Examiner found certain conduct engaged in by the Respond-
ent prior to the Board election held on July 30, 1963, to be objection-
able, as alleged in the objections to the election filed by the Peti-
tioner in Case No. 13-RC-9426, and recommended that the election
of July 30 be set aside and that a new election be directed. The Trial
Examiner found, also, that certain conduct of the Respondent prior
to the Board election held on July 30, 1963, was not objectionable as
alleged in the objections to the election filed by the Petitioner herein
and recommended that the objection referring to such conduct be,
rejected, all of the above being set forth in the attached Trial Ex-
aminer's Decision. The Respondent filed exceptions to the Trial
Examiner's Decision insofar as Respondent was found to have vio-
lated the Act and to have engaged in objectionable conduct and filed
a brief in support thereof. No exceptions were filed by the General
Counsel.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
148 NLRB No. 141.