Western Foundry Co.

National Labor Relations Board - Board Decisions

Jun 24, 1953

105 N.L.R.B. 714 (N.L.R.B. 1953)

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It contends however , that the Regional Director erred as a
matter of law in his determinations . We do not agree. In our
opinion , the record fails to establish that the Petitioner
deliberately sought the arrest of its organizers . Moreover,
contrary to the Employer's contention , the latter had ample
opportunity effectively to reply to the Petitioner ' s election
campaign . We find, as did the Regional Director , that this
objection of the Employer is without merit.
We find therefore that the Employer ' s exceptions raise no
substantial and material issues with respect to the election
and we adopt the Regional Director ' s recommendations that the
objections be overruled."
As we have overruled the Employer ' s objections and as it
appears from the tally of ballots that the Petitioner has
secured a majority of the valid votes cast in the election, we
shall certify the Petitioner as the collective -bargainingrepre-
sentative of the employees in the appropriate unit.
[The Board certified United Gas, Coke and Chemical
Workers of America, CIO, as the designated collective-bar-
gaining representative of the employees of the Employer in the
unit found appropriate in the Decision and Direction of Election
herein.]
13No persuasive reason appears for granting the Employer ' s request for a hearing. Ac-
cordingly, this request is denied.
WESTERN FOUNDRY COMPANY and CHESTER SWANSON and
EDWARD KOENIG . Case No. 13-CA - 1238. June 24, 1953
DECISION AND ORDER
On April 24 , 1953, Trial Examiner Horace A. Ruckel issued
his Intermediate Report in this proceeding , finding that the
Respondent had not engaged in the unfair labor practices
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 Respondent requested permission to file
a reply brief , which request was granted.
The Board ' has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed . The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the execptions and the
briefs, and the entire record in the case, and hereby adopts
1 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
Houston , Murdock, and Peterson].
105 NLRB No. 111.
WESTERN FOUNDRY COMPANY 715
the findings , conclusions , and recommendations of the Trial
Examiner.'
[The Board dismissed the complaint.]
: The General Counsel, in his exceptions , objects, among other things, to the Trial Ex-
aminer 's description of the union committee as a "grievance" committee , and to the Trial
Examiner 's statement that members of such committee were without knowledge of the content
and nature of the petition at the time they interviewed Swanson. As we find the Trial Ex-
aminer 's primary findings and conclusions to be correct, we deem any possible error in
these and other minor findings to be immaterial.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed September 10, 1952. by Chester Swanson and Edward Koenig . individuals.
the General Counsel for the National Labor Relations Board , herein called respectively the
General Counsel and the Board , issued his complaint dated January 14 . 1953, against Western
Foundry Company, herein called Respondent. alleging that Respondent had engaged in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section
2 (6) and (7) of the National Labor Relations Act as amended , 61 Stat. 136. herein called the
Act. Copies of the complaint and a notice of bearing were duly served upon Respondent.
Koenig. and Swanson.
The unfair labor practices alleged are that (1) Respondent on or about September 9, 1952.
interrogated employees concerning their concerted activities . and(2)on or about the same date
discriminatorily discharged Swanson and Koenig because of their concerted activities and for
the further reason that the discharges were demanded by United Steel Workers of America,
Local 2674 . herein called the Union.'
Respondent filed its answer dated January 26 . 1953. admitting that it is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act , but denying the commission of any
unfair labor practices.
Pursuant to notice a hearing was held before the undersigned Trial Examiner at Chicago,
Illinois, on February 4 and 5, 1953. The parties were represented by counsel and participated
in the hearing. Full opportunity was permitted to examine and cross -examine witnesses and
to introduce evidence pertinent to the issues . The Union moved to be allowed to intervene in
the proceeding and Respondent moved that the proceeding be enlarged so as to Include the
Union as a Respondent . Both motions were denied.
At the conclusion of the bearing camel for the parties engaged in a brief oral argument
and were granted until February 19 . 1953. to file briefs with me. Subsequently this time was
extended by the Chief Trial Examiner toMarch5 . A brief has been received from Respondent.
Upon the entire record in the case. upon consideration of the brief . and from my observation
of the witnesses , I make the following:
FINDINGS OF FACT
I,. THE BUSINESS OF THE RESPONDENT
Respondent is an Illinois corporation maintaining its principal office and plant in the city
of Chicago . Illinois , where it is engaged in the manufacture of gray iron and steel castings.
In the course and conduct of its business . and at all times material herein . it has continuously
caused quantities of raw materials to be purchased and transported in interstate commerce to
its Chicago plant from and through States of the United States other than the State of Illinois.
During the 12 months preceding the bearing the value of raw materials purchased for use at
its plant was approximately $1.440.000. of which about 16 percent was shipped to its plant
from points outside the State of Illinois . Duringthe same period the value of finished products
sold was about $3,900 .000, of which approximately 43 percent was shipped from the Chicago
plant to points outside the State of Illinois.
At the time of the events hereinafter related Respondent employed about 200 employees.
exclusive of supervisory employees.
'No charge was filed against the Union.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
United Steel Workers of America , Local 2674 , is a labor organization admitting employees
of Respondent to membership . It is affiliated with the Congress of Industrial Organizations.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The discharge of Chester Swanson and Edward Koenig
On April 27, 1950, Respondent and the Union entered into a contract containing a main-
tenance-of-membership clause, expiring by its terms on March 1, 1952, but to be continued
thereafter unless terminated by a 60-day notice. It does not appear from the record that such
notice has been served.
Koenig came to work for Respondent in August 1951 as a setup and maintenance man in the
machine shop. Swanson came to work in March 1951 as a maintenance man. Swanson never
joined the Union. Koenig joined in August 1952 following a conversation with Fleming, the
then president of the Union, in which Fleming, according to Koenig's uncontroverted testimony,
assured him that he would be appointed a steward upon joining. He attended three union
meetings at which he made known his dissatisfaction with the handling of negotiations by the
Union's officials looking toward a new contract, and at which a proposed strike vote was
opposed by Lucius Love, the Union's international representative in charge of the contract
negotiations. In spite of this, at the second or third meeting he was duly appointed a steward.
His dissatisfaction with the Union's officials and their conduct of the negotiations persisted,
and he drew up the following document, referred to in the record as a petition:
We, the undersigned, workers of the Western Foundry Company, feel that this Union is
not working in our behalf, and would very much appreciate an investigation covering the
last 6 months of our operation.
The usual starting time in the plant is 7:30 a.m. On September 9, Koenig arrived at the
plant a half hour early armed with copies of his petition, 5 or 6 of which he prevailed upon
Swanson to accept, and the 2 immediately began its circulation. News of the event took the
form of a rumor that the petition called for a strike, and it promptly came to the attention of
Love who immediately repaired to the plant.
It also came on the same day to the attention of management when an employee informed
Harry Scheidt, Respondent's personnel manager, of it, stating that he feared that there might
be a strike, and Scheidt informed Frank Spencer, Respondent's president. On Love's arrival
at the plant he asked permission of Scheidt to speak to the members of the Union's grievance
committee, which Scheidt granted, and Scheidt called the members of the committee to the
first-aid room. The committee was in session for some minutes and then requested Scheidt
to have Swanson appear before the committee, which Scheidt did.
The committee, in the initial absence of Scheidt or Spencer, interviewed Swanson who
admitted circulating the petition and involved Koenig as its author. Concerning the purpose of
the petition, Swanson, who did not have a copy of it with him, was vague. Before Swanson
left, Spencer entered and asked Swanson if he knew that it was against the plant rules to engage
in solicitation during working hours without permission and if he had done so, to which
Swanson, according to Spencer's uncontradicted testimony which I credit, replied that he had.
Swanson was sent back to work and Koenig called in. Spencer at this point decided to discharge
Swanson, order the payroll department to make out his time, and so notified Swanson's
foreman. Swanson was not told in so many words that he was discharged because Spencer
first wanted to talk to Koenig. Koenigwas interviewed in the presence of Spencer and apparently
in the temporary absence of Love from the room. Koenig had with him a copy of the petition,
and it was immediately apparent that it was adverse to the Union's officers. The committee
attempted to dissuade him from continuing its circulation but he replied that he had gone
too far to stop. Spencer then told Koenig that he was discharged for violating Respondent's
rule against soliciting=
The rule to which Spencer referred was posted on bulletin boards in the plant and read
as follows-
2 Spencer charged Koenig with violating Respondent's rule and asked him if he had anything
to say to which Koenig replied: "I suppose I am going to be fired, too, so I will keep quiet.
WESTERN FOUNDRY COMPANY 717
Notice
It is against Company Policy to do any Soliciting of any kind on the Company premises,
unless a clearance permit has been given. This covers Solicitation of money, membership
or signatures.
This is in agreement with the Union Committee.
While testifying, both Swanson and Koenig denied soliciting signatures during working
hours, although admitting that some employees approached them for the purpose of signing
or of removing their signatures during working hours, and their requests were complied with.
I am not convinced by their testimony. Moreover, five witnesses called by Respondent testi-
fied that they were approached by either Koenig or Swanson when they should have been
working. I credit their testimony. It does not appear that Spencer had all of this information
in his possession at the time of discharge. Probably much of it was subsequently obtained.
However, as has been found, Swanson, at least, admitted to Spencer in the presence of the
grievance committee that his activities had not been confined to nonworking hours, and I
think it reasonable for Spencer to reach the same conclusion as to Koenig, which was in
accord with the actual fact. It is not contended that prior permission to circulate the petition
was obtained from Respondent.
Conclusions
The complaint alleges that Respondent discriminatorily discharged Swanson and Koenig
because they engaged in concerted activities and for the further reason that the Union demanded
their discharge because they were attempting to induce other employees to investigate the
Union.
There is no evidence in the record whatsoever that the Union requested that Respondent
discharge the employees in question. Both Love and Spencer testified that no such request was
made at any time. To support the allegation, reliance must be had solely upon the circum-
stances which attended the discharges; that is, the fact that the grievance committee before
which Koenig and Swanson were summoned was convened in the first-aid room with permis-
sion of Respondent, that Spencer was present part of the time during the interviewing of
both of the men, and that Spencer discharged Koenig on the spot and in the presence of the
Committee, in effect similarly discharged Swanson, and made no investigation, so far as the
record reveals, other than questioning the two men. These circumstances create the suspicion
that the discharges were effectuated at the instigation of the Union or at least in the belief
that the discharges would mollify the Union. Suspicion, however, is not enough. It must be
borne in mind that the circulating of the petition took place during a critical period when a
new contract was being negotiated. The information which came to both Respondent and the
Union was that the petition called for a strike of the employees. It is small wonder that both
Respondent and the Union were concerned, and it surely was unobjectionable for Respondent
to facilitate an investigation by the Union's grievance committee to ascertain the truth of
the matter.
It is seen from the foregoing facts that Swanson, the first one to be interviewed, did not
have a copy of the petition with him and was unable to give a clear account of its purpose or
effect. So far as the Respondent knew it was simply a petition that was being circulated in
the plant during working hours in violation of its rule. Swanson, I have found, admitted circu-
lating it during working hours. It would seem that no further investigation was necessary so
far as he was concerned, and Spencer thereupon decided to discharge him. It was not known
at that point either to Respondent or to the Union that the petition called for an investigation
of the latter's officials.
It was not until Koenig had been called before the grievance committee that either Respond-
ent or the committee was able to ascertain the precise nature of the petition. It may be readily
assumed that the Union's representatives did not relish its wording. But, as has been found,
the uncontradicted evidence is that none of its representatives at any time demanded reprisals
against either Koenig or Swanson. While Koenig was apparently less frank.than Swanson in
admitting that circulation had taken place during working hours, the fact that he was the
admitted author of the petition and had prevailed upon Swanson to circulate it, together with
Swanson's admission that he had circulated it during working hours and that some employees,
at least, had already reported to management that they had been solicited and had signed the
petition during working hours, was sufficient for Spencer to conclude that both Koenig and
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Swanson had extensively circulated the petition during working hours in contravention of
Respondent's posted rule. In this state of facts Spencer immediately , and without prior
consultation with any of the Union's representatives and without any request from them,
discharged Koenig as he had Swanson.
It having been found, contrary to the allegations of the complaint , that the Union did not
request the discharge of the two men, it remains only to consider the other contention that
Respondent discharged Koenig and Swanson because they engaged in concerted activities.
These concerted activities , although they are not specifically so termed, were obviously
concerted activities "for the purpose of collective bargaining or other mutual aid or pro-
tection ," to employ the language of the Act . The question remains , however, whether they
were protected concerted activities . The situation here is no different in principle from the
more usual one where employees distribute a petition with the object of obtaining union
representation or facilitating union organization .' 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 deciding this latter question it is
usually helpful in establishing discrimination to show that the employees in question were
treated differently from employees who had previously violated the rule. There is in this
record, however , no evidence whatever of any previous infraction and hence of any discharge
because of such Infraction . It cannot be found , therefore , that Respondent treated Swanson and
Koenig disparately , or that it would not have discharged Koenig and Swanson had the nature
of the pdtition not been related to their mutual aid or protection . In this state of the record I
must, and do , conclude that the General Counsel has not met the burden of proof incumbent
upon him. The presumption remains that Respondent acted legally rather than illegally.
CONCLUSIONS OF LAW
1. Western Foundry Company is, and at all times relevant herein was, engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. United Steel Workers of America , Local 2674 , affiliated with the Congress of Industrial
Organizations , is a labor organization within the meaning of Section 2 (5) of the Act.
3. Respondent has not engaged in any unfair labor practices within the meaning of the Act.
[Recommendations omitted from publication.]
CORO, INC., and CORO, INC. OF RHODE ISLAND and-LOCAL
251, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL , Petitioner . Case No. 1-RC-3189 . June 24,
1953
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Joseph Lepie,
hearing officer. The hearing officer' s rulings made at the
hearing are free from prejudicial error and are hereby af-
firmed.
Pursuant 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 , Murdock, and
Styles] .
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.
2. Local 251, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, AFL, is
105 NLRB No. 110.