Willard Bronze Co.

National Labor Relations Board - Board Decisions

Oct 15, 1964

148 N.L.R.B. 1686 (N.L.R.B. 1964)

1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But, in any event, Sherrod, who was only a foreman, left the Company's employ over
2 months before the hearing. In my judgment, it would not effectuate the policies.
of the Act to issue a remedial order based solely on an isolated unauthorized threat by
a foreman who is no longer employed by the Respondent.
CONCLUSION OF LAW
Respondent has engaged in no unfair labor practice warranting the issuance- of a
remedial order.
RECOMMENDED ORDER
The complaint herein should be and hereby is dismissed.
Willard Bronze Company and Larry Martin . Case No. 9-CA-
3012. October 15, 1961
DECISION AND ORDER
On July 22, 1964, Trial Examiner Abraham H. Maller issued his-
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 attached Decision. The Trial Examiner also,
found that the Respondent had not engaged in other unfair labor
practices. Thereafter, the Respondent filed exceptions to the Trial'
Examiner's Decision and a brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman McCul-
loch and Members Leedom and Jenkins].
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 Trial
Examiner's Decision, the Respondent's exceptions and brief, 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 Respondent, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order as modified as fol-
lows: The folowing paragraph shall be added as paragraph 2(b),
and the previous paragraph 2(b) and subsequent paragraphs of the
Trial Examiner's Recommended Order shall be renumbered
accordingly :
148 NLRB No. 163.
WILLARD BRONZE COMPANY 1687
(b) Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on October 30, 1963, by Larry Martin, the Regional Director
for Region 9 of the National Labor Relations Board, herein called the Board, on
January 8, 1964, issued a complaint on behalf of the General Counsel of the Board
against Willard Bronze Company, herein called the Respondent, alleging that the
Respondent interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act by unlawfully interrogating employees
about their interest in, or sympathy for, International Molders and Allied Workers
Union of North America, AFL-CIO, herein called the Union, by threatening an
employee that Respondent would cease its operation if the employees selected the
Union as their collective-bargaining representative, and by transferring employees to
less desirable work assignments because of their interest in, and sympathy for and on
behalf of, the Union. The complaint further alleged that on or about October 10,
1963, the Respondent discharged Larry Martin and Raymond Vannoy because of
their interest in, sympathy for, and activities on behalf of the Union, in violation of
Section 8(a) (3) and (1) of the Act. In its duly filed answer, the Respondent denied
the commission of any unfair labor practices. With respect to the alleged discharge
of Martin and Vannoy, Respondent alleged that said employees were laid off for lack
of work and that they and the Union had been informed that they would be recalled
when additional work is available in their department.
Pursuant to notice, a hearing was held before Trial Examiner Abraham H. Maller
at Cincinnati, Ohio, on February 18 and 19, 1964. The General Counsel and the
Respondent were represented and were afforded full opportunity to be heard, to in-
troduce relevant evidence, to present oral argument, and to file briefs with me. Briefs
were received from counsel for the General Counsel and from the Respondent.
Upon consideration of the entire record, including the briefs of the parties, and
upon my observation of each of the witnesses,) I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation, is engaged in the operation of a foundry at
Cincinnati, Ohio. During the year preceding the issuance of the complaint, the Re-
spondent had a direct outflow, of its products, in interstate commerce, valued in excess
of $50,000, which it sold and shipped directly to points outside the State of Ohio.
During the same period the Respondent had a direct inflow of goods and materials, in
interstate commerce, valued in excess of $50,000 which were purchased and received
directly from outside the State of Ohio. In view of the foregoing, I find and conclude
that the Respondent is engaging in commerce within the meaning of the Act and that
it will effectuate the'policies of the Act for the Board to assert jurisdiction here.
II. THE LABOR ORGANIZATION INVOLVED
International Molders and Allied Workers Union of North America, AFL-CIO, is
and has been at all times material herein , a labor organization within the meaning of
Section 2 (5) of the Act.
1 Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon his de-
meanor as I observed it at the time the testimony was given. Cf Retail Clerks Inter-
national Association, AFL-CIO, Local 219 (National Food Stores, Inc ), 134 NLRB
1680, 1683, footnote 3; Bryan Brothers Packing Company, 129 NLRB 285. To the extent
that I indicate that I do not rely on or reject in part or entirely the testimony of any
given witness, It is my intent thereby to Indicate that such part or whole of the testi-
mony, as the case may be, is discredited by me. Cf. Jackson Maintenance Corporation,
126 NLRB 115, 117, footnote 1, enfd. 283 F. 2d 569 (C.A. 2).
1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
111. THE ISSUES
1. Whether the Respondent interfered with, restrained , and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act by any of the following acts:
(a) Unlawfully interrogating employees about their interest in or sympathy for
the Union.
(b) Threatening an employee that Respondent would cease its operation if the
employees selected the Union as their collective -bargaining representative.
(c) Transferring employees to less desirable work assignments because of their
interest in, and sympathy for and on behalf of, the Union.
2 Whether Larry Martin and Vannoy were separated by the Respondent because
of their interest in, sympathy for, and activities on behalf of, the Union.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent employs approximately 125 employees at its foundry. For the past 30
years the Union has been the exclusive bargaining agent of the employees, except
those in four departments: cleaning, plaster, machine, and patternmakers.2 The rela-
tionship between the Respondent and the Union has been good.
B. The alleged discriminatees
Larry Martin, who was employed in the plaster department 3 as an apprentice
molder, had been employed by the Respondent for approximately 20 months His
starting salary was $1.25 per hour. At the time of the events involved herein his pay
was $1.80 per hour.
Vannoy had been employed by the Respondent for approximately 4 years. He
started in the cleaning department but was transferred to the plaster department where
he worked for about a year until he was hospitalized as a result of an accident in the
foundry. Upon his return he was transferred back to the cleaning department because
his hands were too tender to work in the plaster department. Approximately a month
or two before the events detailed below, Vannoy was again transferred to the plaster
department.
C. Sequence of events
On September 27, 1963, all of the eight employees in the cleaning department and
Larry Martin and Vannoy, two of the six employees in the plaster department, met
with a representative of the Union. All except one employee in the cleaning depart-
ment joined the Union that evening. The new members were issued union badges
and were instructed to wear them at the foundry. The following Monday, Septem-
ber 30, all reported to work as usual , wearing their union-badges. That day, Arlen
Cantrell , one of the employees in the cleaning department, was approached by Chief
Engineer Wernke who, observing the union button, said, "You have joined the Union?
You have wrecked your ass up. You can mark it down in your book as me saying
so." 4
On the same day Chief Engineer Wernke approached Foreman Art Morris and told
him that "he didn't want the bastards over there working in the plaster department,
that belonged to the Union." According to Foreman Morris' credited testimony,
Wernke was highly perturbed and said he would not allow a union man to work in
the plaster department.5 Foreman Morris opposed the transfer of Vannoy and Larry
2 The patternmakers have been represented by the Patternmakers Union
s The employees in the plaster department make molds for castings
4 The foregoing was corroborated by Chester E Martin, a brother of the Charging Party
and an employee in the cleaning department . According to Cantrell and Chester Martin,
Foreman Art Morris was present when this conversation occurred . Foreman Morris,
however, was not interrogated regarding this Incident . Chief Engineer Wernke did not
categorically deny making the statement He testified that he did not think that he made
the statement . In general , Chief Engineer Wernke appeared to be a rather vague and
evasive witness . I credit the testimony of Cantrell and Chester Martin and find that Chief
Engineer Wernke make the statement attributed to him.
5 Respondent attacks the credibility of Foreman Morris, pointing out, inter alia, that
he was discharged by the Respondent prior to the hearing because of his Inability to con-
trol the horseplay In his department , and is therefore a disgruntled employee . In assess-
ing Foreman Morris' credibility I have taken this circumstance into consideration. How-
WILLARD BRONZE COMPANY 1689
Martin from the plaster department because he needed them in that department.
Wernke then instructed Foreman England to transfer Larry Martin and Vannoy to
the cleaning department .° According to Larry Martin's credited testimony , Wernke
told England that Respondent did not want any union people in the plaster depart-
ment and directed him to transfer Larry Martin and Vannoy to the cleaning depart-
ment. Foreman England testified that he did not initiate the conversation with
Wernke regarding the transfer ; that Wernke told him to send Larry Martin and
Vannoy "over there where they belonged in the cleaning room."
The next day, Willard Grueneberg , president of the Respondent , and Chief Engi-
neer Wernke approached Cantrell in the cleaning department . According to Can-
trell's credited testimony , President Grueneberg said , "I hear you are dissatisfied and
you joined the Union ." Wernke then cut in and said, "I told him he wrecked his ass
up." President Grueneberg continued and asked Cantrell what the Union was going
to do for him . Cantrell replied that the Union might do something about senority
and might keep them from getting fired President Grueneberg then asked, "Do you
think you can't be fired , now?" Cantrell answered , "No, I don't think that." 7
Two weeks later Larry Martin and Vannoy were laid off. The reason ascribed for
the layoff was lack of work. Foreman Morris testified without contradiction that he
laid off Vannoy and Larry Martin on the orders of Plant Superintendent Ralph Tim-
mers; that he had told Timmers, "We need men over in the plaster department, the
work is not getting through . We are not getting anything out. We need the men over
there, and we haven 't got enough to hold them here, on this side, in the cleaning
room"; and that the only answer he got from Timmers was to lay the men off and
that he would hire some men in their place. Foreman Morris' testimony is cor-
roborated by the fact that the week following the layoff of Vannoy and Larry Martin,
the Respondent hired two new employees for the plaster department , and the plaster
department went on overtime . Timmers did not testify.
On November 6, 1963, the Union wrote the Respondent requesting the reinstate-
ment of Larry Martin and Vannoy and a contract to cover the employees in the clean-
ing department . Under date of November 19, 1963, the Respondent replied with
certain counterproposals and stated that Martin and Vannoy "were dismissed from
our employ due to lack of work, and that we will put them on when additional work
is required in that Department."
On February 17, 1964 , the day before the hearing in the instant proceeding, Larry
Martin and Vannoy were reinstated as employees in the cleaning department. Ac-
cording to Larry Martin's credited testimony , Foreman England stopped him before
he went to work and said, "You sure got in a mess by joining that Union , didn't you?"
To this, Martin replied, "Yes , I guess I did ." Vannoy also had a similar conversation
with Foreman England, although in this instance it was Vannoy who initiated it.
According to Vannoy 's credited testimony , "I told him we sure got screwed up by
joining the Union , and he said yes, we did." 8
Concluding Findings
1. Alleged interrogation and threats
Chief Engineer Wernke's statement to Cantrell on September 30: "You have
wrecked your ass up . You can mark it down in your book as me saying so," fol-
ever , I obseri-ed carefully his demeanor while he was testifying and-am satisfied that he
was a credible witness. Moreover , Foreman Morris ' testimony is substantially corroborated
by Cantrell who testified that Chief Engineer Wernke told Foreman Morris: "We have got
one guy working over there that belongs to the Union " Morris replied , " loo, you have
got two " Thereupon , Wernke said , "Well, get them out of there."
O Foreman England was in charge of the plaster department under the direction of
Foreman Morris who supervised both the cleaning and plaster departments
7 The foregoing conversation between President Grueneberg and Cantrell was corrobo-
rated by Chester Martin ( except as to Chief Engineer Werike ' s interjection) and is
credited. I do not credit President Grueneberg ' s denial that he asked Cantrell why lie
had joined the Union I do not credit the further testimony of Cantrell that President
Grueneberg threatened to close the plant Considering the fact that the Respondent had
had a contract with the Union for some 30 year, during which time it had an amicable
relationship with the Union , I consider it extremely unlikely that President Gruenebeig
would have threatened to close the plant because the employees in the cleaning department
joined the Union.
s The foregoing incidents occurring the day before the bearing are not considered to be
independent violations of the Act . They do , however, represent the attitude of manage-
ment toward the union membership of Larry Martin and Vannoy.
1690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lowing Wernke's reference to the fact that Cantrell had joined the Union, was clearly
a threat and as such violative of Section 8 (a) (1) of the Act 9 I do not regard
Chief Engineer Wernke's opening statement: "You joined the Union?" as interro-
gation. Cantrell was at the time openly wearing a union badge. Wernke's question
must therefore be regarded as a rhetorical one. Quite obviously, Wernke did not
expect an answer, as he followed this question with his threat without waiting for an
answer.
Nor do I regard the conversation which Cantrell had with President Grueneberg
the following day as constituting interrogation. In the context in which it was put,
the question: "Well, what good do you think that is going to do you?" was merely
discussion rather than an attempt to elicit information from Cantrell. Cf. Murray
Ohio Manufacturing Company, 128 NLRB 184, 189. Indeed, but for the setting in
which they occurred, I would be inclined to consider Grueneberg's remarks as in-
nocuous discussion. However, the facts are: (1) This conversation occurred the
day following Chief Engineer Wernke's threat; (2) Wernke accompanied Grueneberg
when the latter approached Cantrell; (3) Wernke injected himself into the conversa-
tion, repeating the threat he had previously made; and (4) Grueneberg did not dis-
associate himself with the threat. These circumstances, in themselves, could reason-
ably lead Cantrell to believe that he was being considered unfavorably because he
had joined the Union. But more significantly, in this posture, even though it was
Cantrell who had raised the issue of firing, Grueneberg's question: "Do you think
you can't be fired, now?" took on added significance and could reasonably be under-
stood by Cantrell as an affirmation of Wernke's earlier threat. As the Court of
Appeals for the Fifth Circuit pointed out in N L.R.B. v. W. C. Nabors Co., 196 F. 2d
272 at page 276:
When statements such as these are made by one who is a part of the company
management, and who has the power to change prophecies into realities, such
statements, whether couched in language of probability or certainty, tend to
impede and coerce employees in their right of self-organization, and therefore
constitute unfair labor practices.
See also N L R.B v. Kropp Forge Co., 178 F. 2d 822, 828-829 (C.A. 7). In sum, I
find that Grueneberg's conversation with Cantrell constituted restraint and interfer-
ence, in violation of Section 8 (a) (1) of the Act.
I have heretofore indicated that I do not credit Cantrell's testimony that President
Grueneberg threatened that Respondent would close its plant. This was the only
evidence presented by the General Counsel in support of the allegation to that effect
in the complaint . Accordingly, I shall recommend that so much of the complaint as
alleges that the Respondent threatened that it would cease its operation if the em-
ployees selected the Union as their collective-bargaining representative be dismissed.
2. The transfer and layoff of Larry Martin and Vannoy
The complaint alleges and the General Counsel contends that Larry Martin and
Vannoy were discharged on October 10, 1963. The allegation is not supported by a
preponderance of the evidence. Rather, I find that these men were laid off on that
date. However, whether they were laid off or discharged is of no consequence in
this case, since in either event the Respondent violated the Act if its action was
motivated by their membership in the Union. Cf. Thomason Plywood Corporation,
109 NLRB 898. The transfer of these employees from the plaster department to
the cleaning department and their ensuing layoff were intimately connected and
constituted one continuing action.
There can be no doubt that Larry Martin and Vannoy were transferred from the
plaster department and laid off 2 weeks later because of their membership in the
Union. Not only is this evident from the striking sequence of events, but it is fully
supported by the conduct and statements of Chief Engineer Wernke. It is more than
a mere coincidence that Larry Martin and Vannoy were transferred from the plaster
department on the very first day that they appeared at the plant wearing union
badges. And they were transferred to the cleaning department which already had a
full complement of employees-a fact which made their layoff shortly thereafter
9 _\ltlionch the complaint did not charge a threat by the Respondent, the issue with re-
_ard to Chief Engineer Wernke's statement quoted above was fully litigated. See, e g.,
Granada Mills, Inc, 143 NLRB 957.
WILLARD BRONZE COMPANY 1691
inevitable. Chief Engineer Wernke's statement to Foreman Morris that he would
not allow a union man to work in the plaster department clearly establishes the rea-
son for the transfer.
Respondent points to its long history of amicable relationship with the Union and
the speed with which it acceded to the Union's demand to include the cleaning de-
partment in the contract as evidence of the absence of union animus on its part.
These are indeed circumstances to be considered, and I have taken them into account
in arriving at my conclusion. However, these considerations cannot prevail against
the clear and convincing evidence, exemplified by Chief Engineer Wernke's state-
ments when he directed the transfers and the threats made to Cantrell. Murray
Golub et al., d/b/a Golub Bros Concessions, 140 NLRB 120, 129; Cook Paint &
Varnish Company, 129 NLRB 427, 435. Although Respondent had a good relation-
ship with the Union, the plaster department was unorganized, and Respondent ap-
parently preferred that it remain so. By transferring Larry Martin and Vannoy from
the plaster department, Respondent might prevent that department from becoming
,organized.10 And transferring them to the cleaning department could do no harm,
as that department was almost completely organized. Moreover, it made the eventual
layoff of these employees appear reasonable, as there would now be a surplus of
workers in the cleaning department.
Respondent argues further that with the transfer of Larry Martin and Vannoy,
there was a shortage of help in the plaster department and that it would not delib-
erately create such a situation without good economic reason. The argument is not
persuasive. It may well be that Respondent was willing to risk this situation if it
resulted in keeping the plaster department unorganized.
Respondent emphasizes the fact that these employees received the same rate of pay
after their transfer to the cleaning department; hence, it argues that its action was
-not motivated illegally. The contention is without merit. As previously noted, their
transfer to the cleaning department made them vulnerable to the ensuing layoff, a
result which would not have occurred had they remained in the plaster department.
Moreover, even if they had not been laid off as a result of the transfer, they sustained
.a financial detriment, as the transfer limited their future earning potential. The
maximum pay they could receive in the cleaning department was $2.12 per hour,
while the maximum in the plaster department was $2.55 per hour.
Respondent also points to the fact that the other men who had joined the Union
were not discharged. The short answer is that this "does not exculpate . . . [Re-
•spondent] from the charge of discrimination as to those discharged." N.L.R.B. v.
W. C. Nabors Co., supra. See also Golub Bros. Concessions, supra.
Respondent has presented a number of reasons to justify transferring Larry Mar-
-tin and Vannoy out of the plaster department: Larry Martin's production was not
•up to standard and he showed no promise of becoming a journeyman molder; both
he and Vannoy were guilty of horseplay, i.e., throwing plaster at other men; Larry
Martin held another job while working for the Respondent; Vannoy was a laborer
who "belonged" in the cleaning department and was merely transferred back; and
did not show promise of becoming a journeyman molder.11 The very multiplicity
,of defenses urged by Respondent raises the suspicion that Respondent is grasping at
,every possible pretext to justify its action. More importantly, an analysis of these
-defenses demonstrates that each is without merit.
In support of the defense that Larry Martin 's production was not up to standard
and that he did not show promise of becoming a journeyman molder , Respondent
,called Chief Engineer Wernke who testified that the reports he received from Fore-
man England indicated that Larry Martin's production got progressively worse.12
However, Foreman England did not corroborate Wernke. He testified that the only
-complaint he made to Wernke about Larry Martin was the fact that Larry Martin
10 Although these men were reinstated to jobs in the cleaning department the day before
the hearing , President Grueneberg testified that he would not return them to the plaster
-department His stated reason-that their superiors did not deem them qualified-is not
-supported by Respondent's other witnesses. This is more fully discussed infra
11 The foregoing reasons are presented in Respondent ' s brief and/or were offered to the
'Union in Respondent's letter as justification for the transfer.
12 Although Wernke testffied that daily written production records are maintained, none
was produced
1692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was working on another job while employed by Respondent.13. On the other hand,
Foreman Morris testified that both Larry Martin and Vannoy were satisfactory em-
ployees, that their work was good and their attendance regular. Furthermore, the
admitted fact is that Larry Martin was employed in the plaster department for some
20 months. It seems strange that if his production deteriorated progressively, as
claimed by Chief Engineer Wernke, Respondent would have retained him in the
plaster department for so long a time. Moreover, it is an odd coincidence that
Respondent should suddenly become concerned with his alleged lack of production
on the very day when he appeared at the foundry wearing a union badge. In sum,
I am satisfied and find that Larry Martin was a satisfactory employee and that the
foregoing reason advanced by Respondent for transferring him from the plaster de-
partment is merely a pretext.
So, also, is the claim that Larry Martin and Vannoy were transferred because
they engaged in horseplay consisting of throwing plaster. The record is clear that
all employees in the cleaning and plaster departments, Foreman England included,
engaged in this indoor sport. There is no showing that Larry Martin's and Vannoy's
conduct in this regard was any worse than that of the other employees 14 Moreover,
Foreman England testified that he never reported the horseplay that went on in his
department. Also, Chief Engineer Wernke admitted: "I am not associating the
horseplay too much with Martin. I couldn't tie him into that too well." Obviously,
the transfer of Larry Martin and Vannoy to the cleaning department where horse-
play was rife could hardly be calculated to eliminate or lessen horseplay. For if
Respondent genuinely felt that they were principal culprits in this regard, moving
them to the cleaning department would solve nothing. Only the discharge of the
offending employees would solve the problem . Indeed , this is precisely the action
which Respondent took several months later when it discharged Cantrell and Ches-
ter Martin. In sum, the contention that Larry Martin and Vannoy were transferred
because they engaged in horseplay is merely another of several pretexts now ad-
vanced in an attempt to justify Respondent 's action.
Equally without merit is the argument that Larry Martin was transferred because
he was working on another job while employed by Respondent.15 Foreman England
admittedly knew that Larry Martin had another job a few weeks after he was hired
and informed Chief Engineer Wernke to that effect. Wernke, however, did nothing
about it. On the other hand, President Grueneberg testified that he did not find out
about Larry Martin's other job until after Larry Martin had been laid off. Clearly,
this circumstance had nothing to do with his transfer and subsequent layoff.
Nor can the other reasons advanced for the transfer of Vannoy withstand scrutiny.
Respondent urges that Vannoy "belonged" in the cleaning department and performed
only labor work in the plaster department and that he showed no promise of be-
coming a journeyman molder. Aside from the fact that these reasons are inconsist-
ent, they are contradicted by the record. Vannoy, while in the plaster department,
performed the same work that was done by Larry Martin, admittedly an apprentice
molder. President Grueneberg testified that Vannoy and Larry Martin were trans-
ferred because he had been informed by Chief Engineer Wernke that "their work-
manship was slipping" and that it would be foolish to put them back in the plaster
department when their supervisors did not think they were qualified . Chief Engineer
Wernke, however, refused to criticize Vannoy's work and testified that the quality
of his work had nothing to do with the transfer; that the only reason for transferring
Vannoy was simply that he belonged in the cleaning department. Foreman England's
testimony also contradicted that of Grueneberg. England testified that he never
complained of Vannoy to his superiors and that, with the right training, Vannoy
would have made a good molder eventually. The foregoing discussion' demonstrates,
and I find , that the reasons advanced by the Respondent constitute 'a series of pre-
texts without factual foundation.
13 Foreman England also testified that Larry Martin lacked initiative. On cross-
examination, he denied that he had so stated
14 Botb Larry Martin and Vannoy admitted that they sometimes threw plaster. Larry
Martin testified that when someone threw plaster at him, he threw back.
15 Larry Martin, who appeared to be a rather serious young man, testified that for the
past 3 years he had been employed as an attendant at Longview State Hospital, a hospital
for the mentally ill, working 3 nights a week and weekends from 11 p in to 7 a m.
WILLARD BRONZE COMPANY 1693
It is clear from the record, and I find, that Larry Martin and Vannoy were trans-
ferred and subsequently laid off because of their membership in the Union, in viola-
tion of Section 8 (a) (3) and (1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, above, occurring in con-
nection with the business operations of the Respondent set forth 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 com-
merce and the free flow thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) of the Act, I shall recommend that it cease
and desist therefrom and that it take certain affirmative action designed to effectuate
the policies of the Act.
Since I have found that the Respondent transferred Larry Martin and Vannoy
from the plaster department and then laid them off because of their membership in
the Union, I shall recommend that the Respondent be required to offer them imme-
diate and full reinstatement to their former or substantially equivalent positions in
the plaster department, without prejudice to their seniority or other rights, dismiss-
ing if necessary any employees hired after their transfer. The fact that the Re-
spondent has reinstated them to jobs in the cleaning department does not remedy its
discrimination against them in view of their greater earning potential in the plaster
department. Respondent should also be required to make them whole for any loss
of earnings they may have suffered because of the discrimination against them, with
backpay computed in the customary manner.16 I shall further recommend that the
Board order the Respondent to preserve and make available to the Board, or its
agents, on request, payroll and other records to facilitate the computation of the
backpay due and the right of employment.
As the unfair labor practices committed by the Respondent are of a character
striking at the root of employee rights safeguarded by the Act, I shall recommend
that it cease and desist from infringing in any manner upon the rights guaranteed in
Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and upon the
entire record in the case, I recommend that the Respondent, Willard Bronze Com-
pany, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Molders and Allied Workers Un-
ion of North America, AFL-CIO, or in any other labor organization of its employees,
by transferring, laying off, or in any other manner discriminating against employees
in regard to hire and tenure of employment or any term or condition of employment,
except as permitted by the proviso to Section 8(a)(3) of the Act.
(b) Threatening employees with discriminatory action because of their member-
ship in the Union.
(c) In any other manner interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form, join, or assist any labor or-
ganization, 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, or to refrain from any and all such activities, except
to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action which is necessary to effectaute the poli-
cies of the Act:
(a) Offer to Larry Martin and Raymond Vannoy immediate and full reinstate-
ment to their former or substantially equivalent positions in the plaster department,
without prejudice to their seniority or other rights and privileges, dismissing if neces-
sary any employees hired subsequent to their transfer, and make them whole for any
loss of pay they may have suffered as a result of the Respondent's discrimination
against them in the manner set forth in the section of the Decision entitled "The
Remedy." -
1° F. W. Woolworth Co, 90 NLRB 289; Isis Plumbing d Heating Co , 138 NLRB 716.
1694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records, social security payments , timecards,
personnel records and reports, and all other records necessary for the determination
of the amount of backpay due.
(c) Post at its plant in Cincinnati, Ohio, copies of the attached notice marked
"Appendix." 17, Copies of such notice, to be furnished by the Regional Director for
Region 9, shall, after being duly signed by an authorized representative of the
Respondent, be posted by the Respondent immediately upon receipt thereof in con-
spicuous places, including all places, where notices to employees are customarily
posted, and maintained by it for a period of 60 consecutive days. 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 20 days from the date of the
receipt of this Decision, as to what steps the Respondent has taken to comply
herewith.18
It is further recommended that so much of the complaint as alleges that Respond-
ent interrogated employees about their interest in or sympathy for the Union, and
that Respondent threatened to cease its operation if the employees selected the Union
as their collective-bargaining representative, be dismissed.
17 If this Recommended Order is 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 "
18 If this Recommended Order Is adopted by the Board, this provision shall be modified
to read: "'.Notify the Regional Director for Region 9, 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 National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in International Molders and Allied
Workers Union of North America, AFL-CIO, or in any other labor organiza-
tion of our employees, by transferring, laying off, or in any other manner dis-
criminating against employees in regard to hire and tenure of employment, or
any term or condition of employment, except as permitted by the proviso to.
Section 8 (a) (3) of the Act.
WE WILL NOT threaten our employees with discriminatory action because of
their membership in the Union.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to form a labor
organization , to join or assist any labor organization , 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 pro-
tection, or to refrain from any and all such activities, except to the extent that
such right is affected by the proviso to Section 8 (a) (3) of the Act.
WE WILL offer to Larry Martin and Raymond Vannoy immediate and full
reinstatement to their former or substantially equivalent positions in the plaster
department, without prejudice to their seniority or other rights and privileges,
dismissing if necessary any employees hired subsequent to their transfer, and'
make them whole for any loss they may have suffered as a result of our dis-
crimination against them.
WILLARD BRONZE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
ELMIRA MACHINE AND SPECIALTY WORKS, INC., ETC. 1695
NOTE.-We will notify the above-named employees , if presently serving in the
Armed Forces of the United States, of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948 , as amended , after discharge from the Armed Forces.
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, Room
2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No.
381-2200, if they have any question concerning this notice or compliance with its
provisions.
Elmira Machine and Specialty Works, Inc.; Youngstown Steel
Door Company ; Elmira Machine and Specialty Works, Inc.,
subsidiary of Youngstown Steel Door Company and District
No. 58, International Association of Machinists, AFL-CIO.
Case No. 3-CA-1793. October 15, 1954
SUPPLEMENTAL DECISION AND ORDER
On March 18, 1963, the Board issued a Decision and Order in the
above-entitled case,' finding that the Respondent had discriminated
against certain employees because of their concerted activities, and
directing the Respondent to offer them immediate and full reinstate-
ment and to make them whole for any loss of pay caused by the
Respondent's discrimination against them.
On August 16, 1963, the Board's Regional Director for Region. 3
issued and served on the parties a backpay specification and notice
of hearing , setting forth the names of the employees to be reinstated
and the amounts of backpay due each of them. On September 6,
1963 the Respondent filed an answer thereto. Pursuant to notice, a
hearing was held before Trial Examiner Abraham H. Mailer for the
purpose of determining the Respondent's reinstatement and backpay
obligations . The amounts of gross backpay, as computed in the back-
pay specifications and amended at the hearing, for the periods set
forth therein, were stipulated by the parties at the hearing to be
accurate.
On March 5, 1964, the Trial Examiner issued his Supplemental
Decision , attached hereto, in which he found certain of the claimants
listed therein to be entitled to reinstatement and/or specified amounts
of backpay. Thereafter the Respondent filed exceptions to the Trial
Examiner's Supplemental Decision and a brief in support thereof.
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].
1138 NLRB 1393.
148 NLRB No. 164.