Locomotive Finished Material Co.

National Labor Relations Board - Board Decisions

Jun 27, 1942

41 N.L.R.B. 1374 (N.L.R.B. 1942)

In the Matter of LocoMoTlvE FINISHED MATERIAL COMPANY and
INTERNATIONAL MOLDERS AND FOUNDRY WORKERS UNION OF NORTH
AMl3RICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR
Case No. C-2161.Deeided•June 27 , 194
Jurisdiction : foundry industry.
Unfair Labor Practices:
Intel Terence, Restraint , and Coercion : anti-union statements ; interrogation con-
cerning union membership ; threats to close plant ; advising employees -to
resign from union ; charges that employer , caused its employees to, be watched
and spied upon , dismissed.
Remedial Orders : cease and desist unfair labor practices.
Mr. Eugene R. Nelson, for the Board.
Mr. H. Templeton Brown, of St. Joseph , Mo., for the respondent.
Mr. Warren S. Welsh , of St. Joseph , Mo., for the Union.
Miss 'Melvern Krelow , of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on May 27, 1941, by International Mold-
ers and Foundry Workers Union of North America, affiliated with
the American Federation of Labor, herein called the Union, the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Seventeenth Region (Kansas City, Mis-
souri), issued its complaint, dated March 21, 1942, against Loco-
motive Finished Material Company, St. Joseph, Missouri, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, accompanied by notices of hearing thereon,
were duly served upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged
in substance that the respondent: (1) threatened retaliatory meas-
41 N. L. R. B , , No. 246
1374
LOCOMOTIVE FINISHED MATERIAL CO. 1375
ures if its employees affiliated with the Union; (2) threatened to
curtail its production and close its plant should its employees affiliate
with or remain members of the Union ; (3) threatened to discharge
and force resignations from employment should its employees affiliate
with the Union; (4) threatened to destroy the Union; (5) uttered
statements and speeches prejudicial to and disparaging of the Union;
(6) instructed its employees to resign from the Union; (7) questioned
and intimidated those employees who assisted the Union; (8) caused
its employees to be watched and spied upon to obtain 'information
with regard to their union affiliation and activities; and (9) by the
foregoing acts interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
On or about March 31, 1942, the respondent filed its answer in
which it admitted some of the allegations of the complaint but denied
that-it had engaged in any unfair labor practices.
Pursuant to notice, a hearing was held at St. Joseph, Missouri, on
April 2, 1942, before George Bokat, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board and the respondent
were represented, by counsel and the Union by its representative;
all participated in the hearing. Full opportunity to, be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. At the conclusion of the
hearing, counsel for the Board moved that the pleadings be con-
formed to the proof. This motion was granted without objection.
In the course of the hearing the Trial Examiner made several rulings
on other motions and on objections to the admission of the evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed. The parties were afforded an opportunity to argue orally
before, and to file briefs with, the Trial Examiner, but did not avail
themselves thereof. None of the parties requested permission to pre-
sent oral argument before the Board.
The Trial Examiner thereafter filed his Intermediate Report, dated
April 15, 1942, copies of which were duly served upon the parties.
He found that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and Section 2 (6) and (7) of the Act, but had not
engaged in unfair labor practices within the meaning of Section 8 (1)
of the Act insofar as the complaint alleged that the respondent
caused its employees to be watched and spied upon to obtain informa-
tion with regard to their union affiliation and activities.' He recom-
mended that the respondent cease and desist from the unfair labor
practices so found and post notices in its plant in St. Joseph, Mis-
souri, stating that it would not engage in the conduct from which he
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommended that it cease and desist. He further recommended that
the allegation of the complaint that the respondent caused its em-
ployees to be watched and spied upon to obtain information regard-
ing their union affiliation and activities be dismissed for lack of
proof. On May 15, 1942, the respondent filed exceptions to the
Intermediate Report, and a statement and brief in support of its
exceptions. The Board has considered the respondent's exceptions
and its statement and brief and insofar as the exceptions are incon-
sistent with the findings, conclusions, and order set forth below,
finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Locomotive Finished Material Company, a Kansas corporation hav-
ing its principal office and place of business in Atchison, Kansas, is
licensed to do business in the State of Missouri where it operates a
foundry at St. Joseph, which is the only plant of the respondent
here involved. Approximately 20 percent of the raw materials used
by the, respondent at its St. Joseph foundry is received from States
other than the State of Missouri, and in excess of 80 percent of the
finished products manufactured by the respondent at the St. Joseph
foundry is sold and distributed in States of the United States other
than the State of Missouri. The total gross sales- of the St. Joseph
foundry for 1941 were in excess of $125,000. The respondent admits
that it is engaged in commerce within the meaning of the Act.
The respondent normally employs from 65 to 86 employees at its
St. Joseph foundry.
II. THE ORGANIZATION INVOLVED
International Molders and Foundry Workers Union of North
Alne.^ica is a labor organization affiliated with the American Federa-
tion of Labor, admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
Organizational activities at the respondent's St. Joseph plant com-
menced on about May 5, 1941, when employees Elmer McKee and
Herman Gawatz conferred with Warren Welsh, president of the St
Joseph Labor Council, concerning organization of the respondent's
employees. On the following day, about 15 employees attended a
LOCOMOTIVE FINISHED MATERIAL CO. 1377,
meeting at the A. F. of L. Labor Temple in St. Joseph and` discussed
the formation of a, union. On about May, 9, approximately, 20 em--
ployees gathered at the Labor Temple, signed' application blanks foi
membership in the Union, and executed a formal application for a
charter to, establish a local chapter-of the Union. At another meeting
held on May 15, officers were, elected, and at a meeting held on June,
4,, 1941, the charter was formally installed. By this time about 29
employees, had applied for membership in the Union, but, interest
therein had already begun to dwindle to, the, extent that, only 11
employees attended the installation ceremonies. No meetings, of the
local have taken place since, sometime in September 1941, when about
10, employees attended its last meeting. The defections, from the
Union and loss of interest therein may fairly be ascribed, at least in
part, to the respondent's interference, restraint,, and coercion as
described below. -
B. Interference, restraint , and' coercion
On about May 15, 1941, General Foreman Lester Jarrett asked
employee Ernest Hall to come into his office . Hall testified- that
Jarrett then inquired whether other employees had spoker^ to him
about the Union and whether he had joined; that upon receiving an
affirmative answer, Jarrett stated : -
Do you, know if the union goes in all of us fellows would be out
of work; the company at Atchison would close the , plant down
here,1 . . . They, tried to organize there once before; and you
know we fired two of the men, rather we, didn't fire , them,, we
waited a few days and let them go .. .
Hall further testified that Jarrett also told him :
You have only twenty-two members now and two , of them have
backed down and resigned and two more have promised me that
they, was going , to and I am not afraid that the union is going
in because I work 'with all of these men, and -I am not afraid
of them j oining up.
According to Hail, Jarrett then advised him to, send a letter of
resignation to the, Union . 2 Jarrett categorically, denied having any
conversation with Hall about the Union. The,Trial Examiner found
Hall to be direct and forward in, his , testimony and was, favorably
impressed by his demeanor, as , well as by the demeanor of Board
' The main plant of the respondent is locatedi at Atchison, "Kansas ; in 1937 the re-
spondent established' its St Joseph plant when it acquired, the foundry, oof. another. company
located there
2 Hall did not follow Jarrett's advice, but on May 17, 1941, three-employees, including
James Duncan, who had, been elected vice president of the local at the May, 15 meeting,
sent letters to Welsh resigning from the Union
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1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witnesses Sam Creal, Joseph Rosky, and Tyra Parks, who attributed:
similar remarks to Jarrett. We credit the testimony of Hall, as
did the Trial Examiner, and find that Jarrett made the foregoing
statements, substantially as testified by Hall.
Creal, an employee, testified as follows concerning a conversation
he had with Jarrett on about May 16, 1941:
He came-out where I was working . . . and he said that he
wanted to talk to me and he wanted to know if I had heard
anything about the union and he wanted to know if I had
joined it and I told him not yet but I promised that I would
and he told me that he wouldn't if he was me and I said well
the reason I figured that it would-get more money for me than
I was getting, that I had been getting 63 cents an hour and that I
taken a job for 50 cents and he said well, if you stay here and that
union don't go through you will get more money so I joined the
next day . . . he asked me then he said we have some welders
that may in a few days two or three men are going to get a
letter next week asking for their resignations and we will be in
need of some welders and he thought that he was going to let me
do that, I was welding in a sand bin then and he was going to
ask for the resignations of the ones that were starting the. union
and things.
Jarrett admitted talking to Creal about the possibility of using
him as a welder, but denied discussing the Union with him. We
find, as did the Trial Examiner, that Creal's testimony is substan-
tially accurate, and that Jarrett's part in the foregoing conversation
was as Creal described it.
Rosky, another employee, testified that on about May 15 or 16,
Jarrett asked him whether he had been solicited to join the Union,
and upon learning that he had already joined, Jarrett stated that
the Union would not be successful unless the Atchison plant was
organized "first." According to Rosky, Jarrett further stated : "I
guess you know that this plant is an overflow from Atchison . . . If
we sign up and a hundred per cent union all they would have) to do
was to take the orders away from us as they had the controlling
power to shut the power down." Rosky further testified that within
the next day or two Jarrett again discussed the Union, with him.
Concerning this conversation Rosky gave the following testimony :
He told me that he didn't think it would do any good for us
to sign up with the union, on account of we couldn't get the
majority there in the plant, that he knew some of the older men
would not join -and then he also stated, .:. the . . . Company
was going to send'a couple of letters to men employed there at
the company to resign .. .
LOCOMOTIVE FINISHED MATERIAL CO. 1379
While Jarrett admitted having spoken to Rosky about the Union,
his version of the first of the two conversations varied substantially
from that of Rosky. ' Jarrett gave the following - testimony "I asked
hini, I believe , how the Union was coming and he said , `Well , I joined
last night ' and he pulled a piece of paper out of his pocket 3 and
showed that to me and he asked me what I thought about it and I
told him that I didn't think they would ever be able to make it."
Ave, as did the Trial Examiner , believe Rosky's version of the con-
versations concerning which he testified . We accordingly find that
Jarrett made the remarks attributed to him by Rosky. - -
Parks, also an employee , testified that on about May 19 Jarrett
stated that he had heard that there were only 10 or 12 employees in
the Union and that it did not look as though the Union "would do
[them] any good." Despite Jarrett's denial we find , as did the
Trial Examiner , that Park's testimony is substantially accurate.
On or about May 17, McKee, the president , and Gawatz, the cor-
responding secretary , of the Union , together with employee Wayne
Bermond, visited Atchison in order to ascertain whether the em-
ployees at the respondent 's Atchison plant were organizing . Accord-
ing to Gawatz , they had heard rumors that , if the respondent's St.
Joseph plant was organized but the Atchison plant was not, the
Company would shut down the St. Joseph plant. While in Atchison,
the three men met Foreman Bowles of the respondent 's Atchison
plant, who informed them that he had no knowledge that the Atchi-
son plan was being organized , but told them they were making a
"mistake" in attempting to organize the St. Joseph plant , and that
if they dropped out of the Union they would earn more money
"without organizing." 4 Bowles then suggested they go to see
Arthur H. Moorhead , the respondent 's sales manager , and, "get this
thing straightened out." That evening the same trio visited Moor-
head. McKee gave the following uncontroverted and credible testi-
mony as to his conversation with Moorhead :
"Mr. Moorhead , I understand the boys are interested in or-
ganizing and we started to organize in St. Joseph and got ap--
proximately the majority of the plant there " and he said, "They
are not going to do nothing down here, the boys started organiz-
ing in March and went so far as to picket the plant a few days
but' everything is settled , but if the boys want to join the union
there is nothing we can do about it," and so then he told us, "if
you boys want to straighten it up you go back and talk to Mr.'
Marr' and I will call Mr. Marr and tell him you are coming"
3It appears from Rosky's testimony that this "piece of paper" was his receipt from
the Union for payment of initiation fees.
' This finding is based on McKee ' s credible , undenied testimony.
5 John Marr; plant manager of the St Joseph plant.
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and he said, "Will you do that" and I said, "Well now, I don't
know," and he said, "Well you boys have got an awful nice
Christmas bonus coining and you are going to get more, that
plant was practically bankrupt when we took it over and it has
got to make its own way, the boys down' here are working- Sun-
day, some of them, and you fellows are going to up there, and
when we get more work you will get more pay." 6
Following the conversations with Bowles and Moorhead, McKee,
Gawatz, and Bermond were of the opinion that it might be advis-
able to drop their union activities in St. Joseph. They had in mind
withdrawing from the Union in good standing and did not want to
jeopardize their chances of future employment at a union plant.
According to Marr, when the three employees went to see him the
day following their visit to Atchison, they asked his advice as to how
they could 'best withdraw from the Union and still be "all right"
with the respondent.' Marr admitted that he advised them to write
letters of resignation to the Union, and that he also told them -that
two other employees had informed him that they were going to,
resign and had exhibited to him their proposed letters of resignation.
Marr did not deny the testimony of McKee, Gawatz, and Bermond
that he [Marr] told them that the Union did not have a majority
and would not get one, and we find, as did the Trial Examiner, that
Marr made this statement.8
We find -that the respondent, by the foregoing statements and
activities of its supervisory employees Jarrett, Bowles, Moorhead,
and Narr, engaged in a course of conduct whereby it interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
,The Trial Examiner found', and we agree, that the record does
not support the allegation that the respondent caused its employees
to be watched and spied upon to obtain information with regard
to their union affiliation and activities. We shall accordingly dis-
miss the complaint insofar as it so alleges. -
a Neithei Bowles nor Moorhead testified , and the Trial Examiner credited , as do we,
the testimony of McKee , Gawatz , and Bermond as substantially in accord with the facts.
These witnesses further testified that Moorhead suggested that they take up any griev-
ances with Mair, and that if Marr could not adjust them they might bring the grievances
to Moorhead
71t would appear from. McKee's testimony that -what he spoke to Marr about was not
resigning from the Union but "getting a withdrawal card and dropping out in good faith
and good standing " It was then , according to McKee , that Mair said , "that [you]
couldn ' t do.it, that [ you] would have to write a letter and resign."
B Indicative of the fact that Marr was taking an unusual interest in the Union's activi-
ties is the uncontradicted testimony of Lee Bertrem that in the latter part of May 1941,
Malr inquired whether any of the employees working under the supervision of.-Bertrem
had joined the Union At that time Bertrem was employed by the respondent as a
foreman. -
LOCOMOTIVE FINISHED -MATERIAL CO. ' 1381
IV. THE EYTECr OF THE UNFAIR LABOR PRACTICES UPON COMMERCE_
The . activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the respondent de-
scribed 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 commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, within the meaning of the Act, we shall• order it
to cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following:
CONCLUSION OF LAW
1. International Molders and Foundry Workers Union of North
America, affiliated with the American Federation of Labor, is a labor
organization, within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
4. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (1) of the Act by causing its employees to
be watched and spied upon to obtain information with regard to
their union affiliation and activities.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Locomotive Finished Material Company, St. Joseph,
Missouri, and its agents, officers, successors, and assigns, shall:
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of the right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to-
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post immediately in conspicuous places throughout its plant
in St. Joseph, Missouri, and maintain for a period of not less than
sixty (60) consecutive days from the- date of posting, notices to its
employees stating that the respondent will not engage in the conduct
from which it is ordered to cease and desist in paragraph 1 of this
Order ; and
(b) Notify the Regional Director for the Seventeenth Region in
-writing within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith; and
It IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
-missed insofar as it alleges that the respondent, by causing its em-
ployees to be watched and spied upon to obtain information with
regard to their union affiliation and activities, engaged in unfair
labor practices within the meaning of Section 8 (1) of the Act.