F. Burkart Manufacturing Co.

National Labor Relations Board - Board Decisions

Sep 28, 1951

96 N.L.R.B. 558 (N.L.R.B. 1951)

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Recommendations
Upon the basis of the foregoing findings of fact, conclusions of law , and the
entire record in the case, the undersigned hereby recommends that the com-
plaint herein be dismissed in its entirety.
F. BURBART MANUFACTURING COMPANY and INTERNATIONAL AssoCIA-
TION OF MACHINISTS, A . F. L. Case No. 14CA-576. September 28,
1951
Decision and Order
On June 13, 1951, Trial Examiner Bertram G. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the alleged unfair labor practices
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 Board' has reviewed the rulings made by the Trial Examiner
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the brief, and the entire record ,in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner? E
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint herein against F.
Burkart Manufacturing Company, Cairo, Illinois, be, and it hereby
is, dismissed.
Intermediate Report
STATEMENT OF THE CASE
Upon an amended charge filed February 26, 1951,* by International Association
of Machinists , A. F. L., the General Counsel of the National Labor Relations Board,
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
[Chairman Herzog and Members Houston and Reynolds].
2 Because the Act restricts only the power of the Board to certify a nonguard union
for guards and places no restriction on the right of guards to join nonguard unions, we
do not adopt the Trial Examiner 's finding that "as a guard or watchman Boerschel was
not privileged to become a member of the union represented by Rushing nor of the
Upholsterers ' International Union of North America , AFL." Nor do we adopt the Trial
Examiner 's finding that Rushing testified credibly that the IAM "was the bargaining agent
in the plant at that particular time."
* Original charge filed December 5, 1950.
96 NLRB No. 70.
F. BIJRKART MANUFACTURING COMPANY 559
herein referred to as the General Counsel, and the National Labor Relations
Board, herein referred to as the Board, by the Regional Director for the Four-
teenth Region (St. Louis, Missouri), issued a complaint against F. Burkart Man-
ufacturing Company, herein referred to as the Respondent. Copies of the charges
and of the complaint were duly served on the Respondent. The complaint alleged
that the Respondent had engaged in and- was engaging 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 referred to as the Act.
With respect to the unfair labor practices, the complaint alleges that the
Respondent : (a) On or about November 27, 1950, discharged Albert E. Boerschel
and thereafter failed and refused, and does now fail and refuse, to reinstate him
to his former or equivalent position; (b) discharged and failed and refused,
and does now fail and refuse, to reinstate the said Boerschel because he engaged
in concerted activities with other employees for their mutual aid and protection
and for the purpose of discouraging membership in a labor organization.
The Respondent failed to file an answer.
Pursuant to due notice, a hearing was scheduled and held on April 16-and 17,
1951, at Cairo, Illinois, before the undersigned Bertram G. Eadie, a Trial Exam-,
iner, duly designated by the Chief Trial Examiner. The General Counsel, the
International Association of Machinists, A. F. L., herein referred to as the Union,
and the Respondent were represented at the hearing. All parties participated in
the hearing and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
A motion was made by General Counsel for judgment on the pleadings as the
Respondent had failed to file an answer, but with the consent of the General
Counsel the motion was withdrawn and the Respondent was permitted to plead
a general denial as and for its answer, excepting however therefrom the jurisdic-
tional allegations of the complaint which the Respondent admitted. A further
motion was made by the General Counsel to amend the pleadings to conform to
the evidence, as to dates, etc. The motion was granted upon the consent of the
Respondent.
The Respondent moved to dismiss the complaint at the close of the General
Counsel's case and again at the close of the whole case on the grounds that (a)
the complaint herein relates to alleged activities concerning a watchman who was
without the purview of the unit which was in existence by proper bargaining in a
labor contract between the Company and the Upholsterers' International Union
of North America, and (b) no relief can be granted by this tribunal. Decisions
were reserved on the motions and are now denied. `
Both counsel argued orally at the close of the whole case. Counsel for the
General Counsel has submitted a brief to the Trial Examiner ; none has been
received from counsel for the Respondent.
Upon the entire record in the case, from his observation of the witnesses, and
the exhibits in evidence, the Trial Examiner makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation duly organized under and existing by virtue
of the laws of the State of Missouri, with its principal office and place of business
located in St. Louis, Missouri, and branch factories located in various States of
the United States, with an installation branch manufacturing establishment
located at Cairo, Illinois.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent is primarily engaged at its establishment in Cairo, Illinois,
in the manufacture of bats and pads.
The Respondent , during the course and conduct of its business at the said Cairo,
Illinois , establishment , during the calendar year ending December 31, 1950, pur-
chased raw materials consisting principally of sisal and rubber , valued in excess
of $1,000,000 , of which more than 50 percent was transported from points outside
the State of Illinois to the Respondent 's plants at Cairo. During the same period,
the Respondent manufactured , sold, and distributed finished products consisting
principally of seat pads for automotive vehicles, valued in excess of $1,000,000, of
which more than 50 percent was transferred from its place of business in said
Cairo, Illinois , to points outside the State of Illinois . The Respondent conceded
that it is engaged in commerce within the meaning of the National Labor Rela-
tions Act.
The Trial Examiner finds that Respondent is engaged in commerce within the
meaning of the Act.
IL THE LABOR ORGANIZATIONS INVOLVED
International Association of Machinists, A. F. L.; Upholsterers' International
Union of North America and its Local 702, AFL; and International Union,
United Automobile, Aircraft and Agricultural Implement Workers of America,
CIO, are labor organizations within the meaning of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts on which the General Counsel relies to constitute a prima facie case
against the Respondent
Albert E. Boerschel was employed by the Respondent as a guard or watchman
at its Cairo , Illinois , plant. His duties consisted of attending at the gate and
making hourly rounds of the buildings , during his shift, watching through the
plant for fires or anything of that kind. His instructions when he was first
employed were to keep the gate closed and locked except during the hours of
4 to 5 and 8 to 9 p. in. He opened the gate at 7 p. in. to let the oilers out and again
at the luncheon period at 8: 15 p. In. He had been issued a key to the lock
by Respondent . At the material times mentioned herein he worked on the shift
from 4 p. m. to 1 a. m.
The plant consisted of approximately 25 acres and was entirely fenced. About
6 acres were devoted to buildings which were substantially constructed of steel
and concrete some of which were two stories in height.
The watchman 's station while he was not engaged in making his rounds of
the premises was located in a small gatehouse , low ceilinged and heated by steam,
at the junction of the plant roadway and the highway, within a few feet of the
gate and also within the enclosed premises. It was approximately 1,000 feet
from the main buildings, which were reached by the roadway. The watchman's
station and interior of the building could readily be seen from the gate; and
likewise, the gate and anyone standing in its vicinity were observable from the
watchman's post.
The plant at the material times mentioned herein was operating on a 2-shift
schedule, 8 a. in. to 3: 45 p. in., and 4 p. in. to 1 a. in., with luncheon periods of
45 minutes each at 12 p. in. and 8: 15 p. in. Approximately 300 employees were
engaged in the operation, about 200 of them working on the 8 a. in. to 4 p. in. shift
and the balance of approximately 100 on the 4 p. in. to 1 a. in. shift.
F. ,BURKART MANUFACTURING COMPANY 561
On November 27, 1950, while Boerschel was in the gatehouse he was approached
by Herbert Rushing who informed him that he represented the International
Association of "Machinists and that he was looking for an employee of the
Respondent from whom he had received- a telephone call;' and whom he had
promised to meet at the plant that evening at the luncheon period. Boerschel
recognized him as an acquaintance of several years' standing. Rushing did not
know the name of the employee for whom he was seeking, but described him
as a shop steward in the plant. Boerschel could not place him and told Rushing
that he would have to wait outside of the plant gate and possibly he would see
the man coming out of the plant at the luncheon period which would be only a
few minutes later .
As a guard or watchman Boerschel was not privileged to become a member
of the union represented by Rushing nor of the Upholsterers ' International
Union of North America, AFL.
As requested , Rushing waited outside the gate and while there Robert B.
Morrow, a vice president of the Respondent in charge of the Cairo plant, who
was leaving the plant in his auto sometime after 8: 20 p. in. approached him and
asked, "Are you a labor representative?" Rushing answered, "I am sir, I
represent the International Association of Machinists." Morrow then made a
remark to Rushing as follows, "By God, I'll take care of that." Morrow then
turned around and walked back inside the gate and asked Boerschel " . . . if I
knew that man out there. I said yes, I know him and family years ago,- but
hadn't for several years. He said, 'do you know his name' I said I can't recall
his name but I know him by the name of Butch. That was all he said and left."
Morrow then got in his automobile and left the premises . During the period
between 7: 30 p. in. and 9 p. in. the gate was wide open, allowing individuals and
vehicles to enter and depart from the premises.
The next day Boerschel was discharged by Hester Humphrey , the plant
superintendent , and_ was given as the reason for his discharge , "Well you left
the gate open and a union man was out there."
Prior to that time the Upholsterers' International Union of North America,
AFL, and its Local 702 had entered into a collective bargaining agreement with
the Respondent which provided that it should be continued in effect until March
28, 1951, and thereafter automatically renewed unless terminated by either
party on notice to the other in writing at least 60 days prior to March 28, 1951.
On October 13, the Respondent and the Upholsterers executed a supplement
agreement which, inter alia, extended the expiration date of the contract to
March 28, 1952. On October 11, 1950, International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, CIO, filed its petition
with the Board for certification, alleging therein that Upholsterers' Union was
the then recognized or certified bargaining agent of the Respondent. The Board
granted the petition and set a date for an election to be held subsequent to the
date of the hearing.
Herbert Rushing, international representative of the International Associ-
ation of Machinists, testified credibly as follows :
Trial Examiner EADIE. Now, at that time, was there a campaign in
progress for union representation in the plant?
The WITNESi. Not that I know of. I don't know what I was called for
over there at'all' This man that wanted to see me didn't state the reason
why. That was my first trip to the plant.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner EADIE. And I take it that your union was the bargaining
agent in the plant at that particular time?
The WrrNESS. That's right sir.
► s "* s t.
Q. (By Mr. CARLSON.) Just one other question. Did the campaign at the
plant begin after your meeting with Boerschel?
A. Well, yes sir. The campaign began there, but not through my efforts.
CIO started the campaign in the plant.
At the time of his discharge Boerschel testified that Humphrey said, "Well,
Mr. Morrow is through with you." I asked what it was all about. He said,
"Well, you left the gate open and a union man was out there." I told him
O. K. and tried to talk to him. He said "no use talking to me, nothing I can
do about it." I gave him the key and he handed me an envelope.
Assuming the facts to be as presented by the General Counsel at the close of
his case there was then open for the Trial Examiner's consideration a choice of
two inferences to be drawn from the facts as outlined above. Either inference,
to wit: (a) That those alleged facts supported an inference that Boerschel
was discharged by the Respondent for alleged concerted union activity in viola-
tion of Section 8 (a) (1) and (3) of the Act; and (b) that such facts justified an
inference that Boerschel was discharged because he had admittedly violated his
instructions and allowed the gate to remain open at unauthorized times for
which he had been discharged by the Respondent and not for any concerted or
union activity on his part. If there were no additional facts to be found based
on substantial evidence it is debatable whether an inference could be justifiably
found from the facts in support of the contention that his discharge was oc-
casioned or brought about for the reason that he engaged in concerted or union
activity ; or that the Respondent through its officers believed that he had done so.
The decision of the question as to what inference is to be accepted becomes
moot for the reason that the Respondent has placed in the record credible sub-
stantial evidence which preponderates in favor of the Respondent's contention
that Boerschel was not discharged by it for presumed or active participation on
his part in engaging in concerted or union activities.
B. Additional credible facts that must be considered before the determination of
the question of inference can be drawn
Between 7 and 7: 30 p. in. on the night in question a fire had broken out in
the plant. Jule Sams, maintenance foreman for the Respondent *hose duty
it was to take charge of fire fighting at the plant, upon receiving a phone message
that a fire had broken out hurriedly drove his automobile to the plant's gate. It
was locked. He could see Boerschel sitting at his desk in a slumped position.
He honked his horn several times. It had no effect on Boerschel. He thereupon
unlocked the gate with a key which he always carried. He went inside the gate-
house and found Boerschel asleep. He had to slap him several times to awaken
him. In his opinion Boerschel was intoxicated as his breath smelled of liquor.
Boerschel denied that charge but admitted that he had a glass of beer at luncheon
at 3: 30 p. in. that afternoon. Boerschel wanted to know what Sams was doing
there at that time of night. He tcld Boerschel that there was a fire in the
plant and immediately drove with all haste to the fire where he proceeded to
take charge of the fire-fighting crew. When the^fire was out, Sams reported
Boerschel's behavior, to Hester Humphrey, the plant superintendent. He dis-
charged Boerschel the next morning and when Boerschel reported for work the
F. BURKART MANUFACTURING COMPANY 563
next afternoon he notified him to that effect. Humphrey testified credibly as to
the report he had received from Sams and the conversation he had with Boer-
schel when he notified him of his discharge as follows :
Q. (By Mr. EaKER :) State what that report was?
A. After the fire was all put out, wasn't cleaned up, the fire was all out,
sisal still on the floor, Mr. Sams told me that he couldn't get in the gate due
to the fact that the watchman was asleep . He in return had to take his key
and open the gate and come on in, and I was already there before that time.
Q. How did you get to the fire, Mr. Humphrey?
A. Right out my back door of the plant ; I live on the premises.
Q. So you did not have occasion to go to the front gate?
A. No, sir.
Q. After you got this report from Sams, was Mr. Boerschel discharged the
following morning?
A. Yes.
Q. State to the Examiner what occurred?
A. Well, Mr. Sams made his report to me, and Uncle Al is a likeable kind
of a guy and I had him around for a long time. I liked him. In case of a
fire, that was different. I just had to discharge him. That was made the
following morning early, and he got his discharge when he came in to work.
Trial Examiner EADIE. You actually attend the discharge?
The WITNESS : I did.
Q. (By Mr. ERKER : ) Now, what did you say to him at the time?
A. I said, "Uncle Al, that report was made to me, you were asleep." I
said, "I just can't put up with that." I couldn't. "That is the best I can do,
there is nothing I can do about it. I'll have to discharge you."
With the additional facts as found above , the inference that Boerschel was
discharged by the Respondent for purported or actual concerted or union activity
is rejected and the version of the facts as testified to by the Respondent's wit-
nesses is accepted.
Conclusions Reached on the Facts
The General Counsel failed to establish by a fair preponderance of the evi-
dence that Boerschel was discharged by the Respondent for purported or. actual
concerted union activities on his part . It is further found that Boerschel's dis-
charge was occasioned or brought about by his own actions in violation of his
given instructions in allowing the gate of the plant to remain open and unlocked
during proscribed hours and being asleep at his post as watchman or guard
during his tour of duty . The Respondent was justified in the discharge of
Boerschel. Its acts in so doing were not in violation of Section 8 (a) (1) and (3)
and Section 7 of the Act.
The Trial Examiner will recommend that the complaint herein be dismissed
against the Respondent in its entirety.
CONCLusIONs OF LAW
1. F. Burkart Manufacturing Company is a corporation organized and existing
under and by virtue of the laws of the State of Missouri.
2. International Association of Machinists, A. F. L., Upholsterers' International
Union of North America and its Local 702, AFL, and International Union, United
Automobile, Aircraft and Agricultural Implement Workers of America, CIO, are
labor organizations within the meaning of Section 2 (5) of the Act.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Respondent has not engaged in unfair labor practices within the mean-
ing of Section 8 (a) (1) and ( 3) and Section 2 ( 6) and (7) of the Act.
Recommendation
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, the Trial Examiner recommends that the
complaint against F . Burkart Manufacturing Company be dismissed in its
entirety.
UNITED STATES RUBBER COMPANY and INTERNATIONAL ASSOCIATION
OF MACHINISTS , DISTRICT No. 113, PETITIONER . Cases Nos. 13-RC-
1921,13-RC-1922, and 13-RC-1961. September 28, 1951
Decision , Order, and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Irving M. Friedman,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.'
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 [Chairman Herzog and Members Reynolds and
Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, in Case No. 13-RC-
921. No question affecting commerce exists in Case No. 13-RC-1922.
4. In Case No. 13-RC-1921, Petitioner seeks to sever from a pro-
duction and maintenance unit at the Employer's Fort Wayne, Indiana,
1 At the outset of the hearing , Petitioner , IAM, moved to withdraw Its petition in Case
No. 13-RC-1961 , which sought a unit of precision metal inspectors, gage checkers and
lead man , and in the absence of any objections , the hearing officer granted the motion.
Section 102 . 52 of the Board 's Rules and Regulations , as amended March 1, 1951, vests in
the Regional Director or in the Board , and not in the hearing officer, the power to permit
the withdrawal of a petition . None of the parties herein , however, objected to the request
by the IAM to withdraw its petition and no evidence was taken in regard to that petition.
We therefore find that the withdrawal of the petition In Case No . 13-RC-1961 will not
prejudice any of the parties herein . Accordingly, the motion of the IAM to withdraw its
petition in Case No . 13-RC-1961 is hereby granted, and Case No. 13-RC-1961 is hereby
ordered severed from Cases Nos. 13-RC-1921 and 13-RC-1922 in which the IAM also
appears as Petitioner. W. J. Smith Wood Preserving Company, 80 NLRB 824.
96 NLRB No. 78.