Screw Machine Products Company

National Labor Relations Board - Board Decisions

Jun 27, 1951

94 N.L.R.B. 1609 (N.L.R.B. 1951)

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, ETC. 1609
- Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CoNcLusIoNs of LAW.
1. The operations of Consolidated Western Steel Corporation constitute trade,
traffic, and commerce among the several States within the meaning of Section
2 (6) and (7) of the Act.
2. International Brotherhood of Boilermakers, Iron Ship Builders, Welders
and Helpers of America, Local #6, AFL, is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Ross
E. Dulinsky, thereby encouraging membership in a labor organization, the
Respondent Company has engaged and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
4. By causing the Respondent Company to discriminate in regard to the hire
and tenure of employment of Ross E. Dulinsky in violation of Section 8 (a) (3)
of the Act, the Respondent Union and Respondent Rainbow have engaged and
are engaging in unfair labor practices within the meaning of Section 8 (b) (2)
of the Act.
5. By interfering with, restraining, and coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent Company has
engaged in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
6. By restraining and coercing employees of the Respondent Company in the
exercise of their right to refrain from any and all of the concerted activities
guaranteed by Section 7 of the Act, the Respondent Union and Respondent
Rainbow have engaged and are engaging in unfair labor practices within the
meaning of Section 8 (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
"labor organization" and its "agents " by Section 8 (b), and of the definition of labor
organization" provided by Section 2 (5) of the Act , it may not be assumed that Congress
intended the term "labor organization ," as used in Section 10 (c), to include its "agents."
The coupling of the words "labor organization " and "agents" in Section 8 (b) by specific
use of the terms and the omission of "agents " from the relevant provision of Section 10
(c) evidences a statutory design to limit the obligation for back pay to employers and
unions . The undersigned will accordingly not recommend that Respondent Rainbow
reimburse Dulinsky for wage losses resulting from the discrimination against him.
C. A. BRAUKMAN and LUCILLE BRAUKMAN D/B/A SCREW MACHINE
PRODUCTS COMPANY and INTERNATIONAL UNION OF OPERATING ENGI-
NEERS, LOCAL 1. AFL. Case No. 30-CA -34. June 27, 1951
Decision and Order
On December 29, 1950, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding,' finding
' Trial'Examiner Josef L. Hektoen conducted the hearing in this proceeding but due
to his death Trial Examiner Whittemore prepared the Intermediate Report.
94 NLRB No. 234.
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent had engaged in and was engaging in certain un-
fair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter the Respondent
filed exceptions to -the Intermediate Report and a brief in support
-thereof. The Respondent's request for oral argument is hereby de-
nied, as the record and brief, in our opinion, adequately present the
issues and the positions of the parties.
The Board has reviewed the rulings of Trial Examiner Hektoen
:and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
-the exceptions and brief, and the entire record in the case, and finds
inerit in certain of the Respondent's exceptions for the following
reasons.
On September 24, 1948, the Board dismissed the International Asso-
ciation of Machinists' petition for certification as bargaining repre-
sentative of the Respondent's employees, stating that "we do not be-
lieve that it would effectuate the policies of the Act to assert jurisdic-
tion in this case, because we think that the effect of the Employer's
business on interstate commerce is too remote." 2 Again, on July 11,
1949, the Board-for the same reason dismissed a similar petition filed
by the International Union of Operating Engineers, AFL.3
In the meantime, on December 6, 1948, and on February 15, 1949,
the charge and amended charge in this proceeding were filed. As
-detailed in the Intermediate Report, all the Respondent's activities
alleged as unfair labor practices occurred after the Board dismissed
-the first representation case on September 24, 1948, and before the
Board dismissed the second representation case on July 11, 1949.
.Despite the Board's refusal to assert jurisdiction over the Respond-
ent's operations at that time, the former General Counsel, who by
statute had sole authority over the disposition of charges, did not
dismiss the pending charges. The charges remained on file until
August 29, 1950, when the General Counsel issued the complaint in
this matter.
When the complaint issued, the Board was reexamining its policy
concerning the exercise of jurisdiction; 4 thereafter, during October
1950, we announced certain specific criteria for the assertion of juris-
2 Screw Machine Products Company, 79 NLRB 980.
8 Screw Machine Products Company, 85 NLRB 129. ( Chairman Herzog and Member
Reynolds dissenting.)
4 See Beaver Machined Tool Co ., Inc., 90 NLRB 529.
SCREW MACHINE PRODUCTS COMPANY 1611
diction s It appears , as found by the Trial Examiner, that the Re-
:spondent's volume of interstate commerce at about the time the alleged
unfair labor practices were committed satisfied the Board's current
jurisdictional criteria. The question thus posed is whether or not the
Board should apply retroactively its present jurisdictional standards,
and assert jurisdiction in the instant complaint case, although the
Board had before and after the commission of the alleged unfair labor
practices, refused to assert jurisdiction over the Respondent's opera-
tions on the basis of then existing standards.
The Board believes that the question should be answered in the
negative. This result is dictated not only by the Board's obligation to
respect its own* prior decisions,' but also by a desire for fair play. It
would be inequitable now to hold the Respondent liable for the activi-
ties in question, as the Board, almost 3 years ago, in effect advised the
Respondent that such activities occurred at a time when "it would
[not] effectuate the policies of the Act to assert jurisdiction" over
the Respondent's operations. This ruling imposes no hardship upon
the Respondent's employees which they might not reasonably have
anticipated, as they engaged in the concerted activities in question
after the Board had refused to assert jurisdiction over the Respond-
ent's operations.
Moreover, in Yellow Cab Company of California 7 the Board re-
cently held that "sound policy precludes reconsideration of complaint
cases which were disposed of before the adoption of the present juris-
dictional standards." True, the Board has not heretofore considered
the instant complaint case. However, because the Board does not,
with respect to the question of jurisdiction, differentiate between
representation and complaint cases, we believe that dismissal of the
second representation case on jurisdictional grounds on July 11, 1949,
was in effect, notice to all parties concerned that any complaint case
based on alleged unfair labor practices occurring before that date
would similarly be dismissed. The policy considerations which war-
ranted dismissal of the complaint in the Yellow Cab case are analogous
to those presented here.
On the basis of the foregoing, we shall therefore dismiss the com-
plaint in its entirety. This ruling, however, is not to be taken as
5 For these criteria see : WBSR, Inc., 91 NLRB 630 ; W. C. King , d/b/a Local Transit
Lines, 91 NLRB 623; The Borden Company, Southern Division , 91 NLRB 628 ; Stanislaus
Implement and Hardware Company, Limited , 91 NLRB 618 ; Hollow Tree Lumber Com-
pany, 91 NLRB 635; Federal Dairy Co. , Inc., 91 NLRB 638; Dorn's House of Miracles,
Inc., 91 NLRB 632; The Rutledge Paper Products, Inc., 91 NLRB 625; Westport Moving
and Storage Company, 91 NLRB 902.
6 Cf. Compressed Air, Foundation , Caisson, Tunnel, Subway , Sewer, Cofferdam Con-
struction , Local Union 147, New York, New Jersey , States and Vicinities , 93 NLRB 1646.
7 93 NLRB 766.
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning that the Board would not assert jurisdiction in proper new
complaint or representation proceedings involving this Respondent
or other employers involved in previously decided cases, whose opera-
tions meet present jurisdictional criteria. Nor do we here decide
that we would dismiss a complaint solely because the alleged unfair
labor practices occurred at a time when the Board would not have as-
serted jurisdiction over the particular employer involved. That ques-
tion is not before us. What is controlling in the instant case is the
fact that the Board issued a decision declining to assert jursdiction
after the commission of the alleged unfair labor practices .
Order
IT IS HEREBY ORDERED that the complaint herein be, and it hereby is,
dismissed.
MEMBER HOUSTON, dissenting :
Unlike my colleagues of the majority, I find that the decisions in
two prior representation cases, refusing to assert jurisdiction over the
Respondent, do not require dismissal of this subsequently issued
complaint. Our jurisdictional criteria, upon being enunciated,.
became applicable, without reservation, to all pending and undecided
complaint cases. The instant.complaint case falls into that category..
Accordingly, as the Respondent's operations satisfy the Board's
jurisdictional criteria, and as the complaint is properly before the
Board, I would assert jurisdiction and proceed to a determination of
the case on the merits.
Intermediate Report
Mrs. Margaret L. Fassig, for the General Counsel.
Messrs. Jean S. Breitenstein, and James D. Geissinger, of Denver, Colo., for
the Respondent.
Mr. Henry H. Herbolsheimer, of Denver, Colo., for the Engineers.
STATEMENT OF THE CASE
Upon charges duly filed by International Union of Operating Engineers, Local
No. 1, AFL, herein called Engineers, the General 'Counsel of the National Labor
Relations Board, herein respectively called General Counsel and the Board, on,
behalf of the Board by the Regional Director for the Seventeenth Region
(Kansas City, Missouri), issued a complaint dated August 29, 1950, against.
C. A. Braukman, and Lucille A. Braukman, d/b/a Screw Machine Products Com-
pany, Denver, Colorado, herein called upon the Respondent, alleging that the Re-
spondent had engaged in 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 (Public Law 101, 80th.
Congress, herein called the Act. Copies of the charges, the complaint, ands
notice of hearing were duly served upon the Respondent and Engineers.
SCREW MACHINE PRODUCTS COMPANY 1613
With respect to unfair labor practices, the complaint alleges in substance
that the Respondent: (1) has interrogated its employees concerning their union
affiliations, conducted polls among them as to their union choice, and warned
them against becoming members of any labor organization; (2) discriminatorily
terminated the employment of four employees in 1948 to discourage membership
in Engineers,' and (3) by these acts interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed by Section 7 of the Act.
In its answer , duly filed, the Respondent denied the commission of the alleged
unfair labor practices and set out certain affirmative defenses. The Respond-
ent denied that the Board has jurisdiction.
Pursuant to notice, a hearing was held on October 10 and 11, 1950, before
Josef L. Hektoen, a Trial Examiner duly designated by the Chief Trial Exami-
ner. The Respondent and General Counsel were represented by counsel, the
Engineers by an official. All parties participated in the hearing, and were af-
forded full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues. All parties waived the
opportunity to argue orally before Trial Examiner Hektoen ; the Respondent
and General Counsel availed themselves of the opportunity to file briefs.
On December 4, 1950, by order of the Chief Trial Examiner, the undersigned
'rial Examiner was designated to prepare an Intermediate Report in this
case, due to the death of Trial Examiner Hektoen.
Upon the entire record in the case, the undersigned Trial Examiner makes
the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
A. Stipulation of Facts
At the hearing the Respondent and General Counsel entered into the following
stipulation of facts :
1. Prior to December, 1949 C. A. Braukman and Lucille A. Braukman were
a partnership doing business as the Screw Machine Products Company and
operated a machine shop in Denver, Colorado. This machine shop was
engaged in the business of making, on order, small machine parts which it
sold to others who used such parts in the assembly of articles manufactured
by them. Examples of items produced by Respondent are : parts for gun
sights ; parts for fishing reels and rods ; parts for camera photo flood
synchronizing device; pipe and hose joints and fittings; bits for horse
harnesses ; screws ; knobs ; and cams. In December, 1949 a corporation
known as Screw Machine Products Company was incorporated under the
laws of the State of Colorado and took over the assets, liabilities, em-
ployees and business of the partnership which did business previously
under the name of the Screw Machine Products Company, and the cor-
poration has since that time operated the business at the same location
and in the same manner as did the partnership. Some of the Respond-
ent's current production is used in the assembly of products which are sold
by customers of the Respondent to the United States Government.
2. All of the Respondent's machinery and equipment, which is valued at
in excess of $35,000, although purchased by the Respondent within the
1 Elizabeth Merriman, Charles F . Mensing, Marie Saltzgaber , and Hilda Body. It
developed at the hearing that the last mentioned had married since the alleged discrimina-
tion. Hereafter in this report she will be referred to as Hilda Body Ralston , or as Ralston.
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
State of Colorado , was manufactured outside of Colorado - During 1948;
Respondent's purchases of tools and supplies amounted to approximately
$5,400, of which approximately $1,600 represented shipments to, Respond-
ent from points outside of Colorado. During 1949 and the first eight
(8) months of 1950 Respondent purchased tools and shop supplies valued
respectively at approximately $2,373 and $4,180, of which more than ten
percent was shipped to Respondent from outside of Colorado.
3. The principal raw materials used by Respondent are steel , brass and
aluminum. During 1947, 1948, 1949, and the first eight (8) months of 1950
Respondent purchased raw materials valued respectively at approximately
$29,692, $22,512, $5,970 and $13,866; of these, materials valued respectively
at approximately $19,644, $9,870, $992 and $2,800 were shipped to Respondent
directly from points outside of Colorado. While most of Respondent's total
purchases of raw materials were made from wholesale distributors located
within Colorado and delivered to Respondent from the sellers' warehouses
within the State of Colorado, all such raw materials were originally brought
into Colorado from another State. Frequently the raw materials used
by Respondent bear the names of nationally known producers engaged in
interstate commerce within the meaning of the National Labor Relations
Act.
4. During 1948 , Respondent sold finished products valued at approximately
$91,834 ; of these, products valued at approximately $2,295 were shipped to
points outside Colorado . During 1949 Respondent 's total sales amounted to
$53,600.66, of which approximately $3,790 represented shipments to points
outside Colorado. During the first eight (8) months of 1950 Respondent's
total sales amounted to approximately $62,769, of which approximately
$5,795 were shipped to points outside Colorado . During 1947 and 1948•
Respondent sold finished products valued at more than $100,000 to Colorado
customers , and during 1949 and the first eight (8) months of 1950 Re-
spondent sold machined products to its Colorado customers valued at more
than $125,000. The Respondent 's Colorado customers in turn incorporated
the items produced by this Respondent in their own production , and Re-
spondent believes that more than fifty ( 50) percent of such production by
the Respondent 's customers was shipped to points outside Colorado. More
than fifty percent of Respondent 's sales to its Colorado customers , in dollar
volume, represent sales to firms who are engaged in interstate commerce
within the meaning of the National Labor Relations Act, and over many of
whom the National Labor Relations Board has asserted its jurisdiction.
Included among the Respondent 's customers for whom it manufactures
parts are firms listed on Appendix A attached hereto.'
Respondent does not, by this stipulation , admit or concede that its opera-
tions are in or affect commerce within the meaning of the National Labor
Relations Act.
B. Conclusions
In view of inconsistencies in the above-quoted stipulation, the undersigned
Trial Examiner is not at all certain that an accurate analysis of the Respondent's
business , based upon the figures appearing therein is possible . For example,
there appears to be lack of consistency in the following statements made in para-
graph 4 of the stipulation :
2 "Appendix A" is attached to the written stipulation in evidence . The undersigned
Trial Examiner has not considered it in reaching his conclusions. The concerns listed,
if any, over which the Board has exercised jurisdiction are not identified.
SCREW MACHINE PRODUCTS COMPANY 1615
( 1) During 1949 ... total sales amounted to $53,600.66.
(2) During the first eight ($) months of 1950 . . . total sales amounted
to . . . $62,769.
(3) During 1949 ' and the first eight months of 1950 Respondent sold:
machined products to its Colorado customers valued at more than $125,000.
(Emphasis supplied.)
Addition of (1) and (2), according to the undersigned Trial Examiner 's calcu-
lation, brings the sum of $116,369.66 . Yet item ( 3), limited apparently to,
Colorado sales, stipulated an amount for the 20 months considerably larger than
the total sales for the same period.'
For the purposes of this report, the undersigned Trial Examiner will assume
to be accurate and use, as did counsel for the Respondent in a detailed analysis.
set forth in his brief , the lesser of the two amounts-the "total sales" for speci-
fied periods . And also for the purpose of this Report it will be assumed and found
as stipulated , that "more than fifty percent of Respondent 's sales to its Colorado,
customers , in dollar volume, represent sales to firms who are engaged in inter-
state commerce within the meaning of the National Labor Relations Act."
The undersigned Trial Examiner is inclined to agree with counsel for the
Respondent , as he ably argues in his brief , that only one of the sundry standards
enunciated by the Board in determining commerce jurisdiction can here be
reasonably applied with a result which may bring the Respondent within such
jurisdiction . The standard set out in The Rutledge Paper Products , Inc.,4 will be
applied. In short, that standard establishes that where an employer 's direct
inflow and outflow of materials through interstate channels is less than the
minimum requirements ($500,000 and $25,000 respectively ) established by the
Board as standards whether jurisdiction should be asserted on either basis, the
Board will nevertheless exercise jurisdiction , where the employer 's inflow and,
outflow of materials "when considered in ratio to the respective inflow and out-
flow requirements , are together equivalent to the minimum requirements in
either category."
Also for the purposes of this Report, the undersigned Trial Examiner considers
material, for analysis , only the years 1948, during which the unfair labor prac-
tices are alleged to have occurred , and the year 1950, in which the hearing was
held.
The following compilation is drawn from figures appearing in the above-
quoted stipulation and, except for one minor correction ( indirect inflow for
1950 ) are as set forth in the Respondent 's brief. Percentages are approximate.
Tools, supplies, and materials
Direct inflow:
1948, $11,470, which equals 2.3% of $500,000.
1950 (8 mos.), $3,218, which equals 1 % of $333,333.5
Indirect inflow:
1948, $16,442, which equals 1.6% of $1,000,000.
1950 (8 mos.), $14,828, which equals 2.2% of $666,667.
3 Nor does the same paragraph reveal what the "belief" of General Counsel is, if any,
in regard to the statement emphasized in the following quotation : "The Respondent's
Colorado customers in turn incorporated the items produced by this Respondent in their
own production , and Respondent believes that more than fifty ( 50) percent of such
production by the Respondent's customers was shipped to points outside Colorado."
4 91 NLRB 625.
E Since the 1950 figures in the stipulation cover only 8 months, it is obviously appropriate
that the minimum standard set up by the Board should also be reduced to two-thirds of the
annual amount, thus equalizing the periods covered.
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Products sold
Direct outflow:
1948, $2,295, which equals 9% of $25,000.
1950 (8 mos. ), $5,795, *which equals 34.8% of $16,667.
Indirect outflow:
1948, $44,769, which equals 89% of $50,000.
1950 (8 mos.), $28,487, which equals 85% of $33,333.
Summarizing the above compilation:
1948
Direct-----------------
Indirect ---------------
outflow Inflow
9% Direct-------------- 2.3%
89% Indirect ------------- 1.6%
Combina-
tion
-------
------
98% 3.9%
1950
Outflow Inflow
101.9%
Combina-
tion
Direct----------------- 34. 8% Direct-------------- 1% -------
Indirect --------------- 85% Indirect -------- ------ 2.2% -------
119.8% 3.2% 123%
Unless the undersigned Trial Examiner , who is not an accountant , has in-
advertently erred in calculation , it appears that when tested by the Board
standard cited above-a combination of inflow and outflow, the Respondent's
business during both 1948 and 1950 exceeded the 100 percent requirement. It is
so found.
Contrary to the contention of the Respondent, it is concluded and found that
the Respondent is engaged in commerce within the meaning of the Act, and that
exercise of the Board 's jurisdiction will effectuate the policies of the Act.'
II. THE LABOR ORGANIZATIONS INVOLVED
The International Union of Operating Engineers, Local No. 1, AFL, and
International Association of Machinists , herein called Machinists , are labor
organizations admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
Early in 1948 employees C. F. Mensing and another ' approached C. A. Brauk-
man and requested a wage increase for all 9 or 10 shop employees . then on the
payroll. Braukman turned down the request . The 2 employees then prepared,
circulated , and submitted a petition for a general increase . Upon receiving it
Braukman assembled the workers , explained that the concern had lost money
in 1947, and said that no increase could be given . The employees, dissatisfied,
decided to seek affiliation with some union. Employee Hilda Body Ralston
° The -undersigned Trial Examiner finds no merit in the Respondent 's claim to the
effect that having twice declined the Board may not now assert jurisdiction.
7 Robert Matthesen , who since then has been promoted to foreman and is not involved
in these proceedings.
SCREW MACHINE PRODUCTS COMPANY 1617
was selected to approach the Machinists . A representative of that organization
came to the shop, and sometime in April a meeting was held. On April 26 the
Machinists filed a petition for certification as the representative of the Re-
spondent 's employees
e Braukman was notified of the filing and a few days
thereafter voluntarily gave the employees a wage increase. According to Brauk-
man's testimony : "There was still unrest in the shop . I put it in nevertheless
and I said to them at the time we announced it, `This is a cost of living in-
crease. It isn't put in to encourage or discourage your union activities: "
Union activities continued . Mensing was elected shop steward , and repre-
sented the Machinists at a Board representation hearing held in the summer
of 1948. Braukman received a copy of the Board's decision , dated September 24,
1948, in which it declined to assert jurisdiction . Upon receiving it, according
to his own testimony , Braukman called all employees together and asked them
to vote "Yes" or "No" on the question , prepared by himself , as to whether or
not they wanted an "outside labor union " to represent them. The polling of em.
ployees on this occasion is at issue , and will be discussed more fully below.
The employees decided to seek affiliation with the Engineers , and most of
them signed applications on or about September 30. The next day Mensing left
on a month 's vacation . Not long after his return he was laid off: During his
absence employees Ralston and Elizabeth Merriman were also laid off. Also'
during October office employee Marie Saltzgaber , daughter of Henry Herbol-
sheimer , organizer for the Engineers , was asked by Braukman to resign. She
declined . Engineers filed a petition for certification as the representative of the
Respondent 's employees on November 12.° Braukman refused to consent to an
election , despite the fact that a few weeks before he had undertaken to conduct
his own balloting . Upon her return from a vacation , early in December, Saltz
gaber was transferred from her regular job in the Respondent 's office. The lay-
offs.of Ralston, Merriman , and Mensing, and the transfer of Saltzgaber are in
issue.
B. The poll of employees
There is no dispute as to the fact that Braukman , during the last week in
September and immediately after the Board issued its decision in Case No.
30-RC-82, called all employees together during the working day and, after
having Mensing read to them the Board decision , distributed among them
ballots on which appeared this test :
Check yes or no if you want an outside labor union to represent you as
a bargaining agent.
Yes
No
It is also established by credible evidence that before distributing the ballots
Braukman told the employees , in effect : "This thing has gone far enough, I
would like to get it settled ." When Ralston protested that they had not been
responsible for "stalling ," Braukman said he did not like the idea of not being
informed "of what was going on." Having distributed the ballots , Braukman
left. The employees , however , decided not to use his ballots and returned
them, unused , to Superintendent Dale Young who was present. They then
conducted a vote among themselves , using paper towels for ballots, and . decided
seven to one to continue organizing efforts.
As a witness Braukman said that his attempt to ascertain the desires of
his employees for union representation was, prompted only by the "considerable
e Case No. 30-RC-82.
Case No . 30-RC-127.
953841-52-vol. 94--103
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amount of unrest" occasioned by the Board's "not choosing to take jurisdiction.""
His testimony leaves unrevealed , however : ( 1) what unrest, if any, he ob-
served , since he did not have the Board decision read to them until just before
passing out ballots already prepared by him ; and (2 ) why he asked for a
vote on an "outside" union . His protest of neutrality is also discredited by
his admitted refusal to consent to a Board election shortly after this event.
The undersigned Trial Examiner concludes and finds that Braukman 's conduct
in initiating the poll above described constituted interference , restraint, and
coercion of employees in the exercise of rights guaranteed by the Act10
C. Discrimination to discourage union activities
1. Marie Saltzgaber
Saltzgaber is the daughter of Herbolsheimer , business representative of the
Engineers . For about 2 years before December 1948, she had performed general
office work for the Respondent . On September 30, after the employees had
signed application cards for the Engineers , Herbolsheimer asked Braukman
for a bargaining conference . The same afternoon he was called to the office
of the local "Employers Council," where Braukman told him that because of
the "peculiar situation"-the father -daughter relationship-he could not permit
Saltzgaber to work for him.
The.next day Braukman requested her to resign . She asked why. Braukman
told her that it would be better for her to leave because the "folks out in the,
shop were organizing" and her father was business representative of the union,
She countered that her work in the office made her ineligible for the Engineers,
or the bargaining unit, and declined to resign. Finally, after discussion , Brauk-
man told her he would "let it ride" for a time, and said she could keep her
job if the employees decided not to have her "father's union represent them."
At the September 30 meeting with Herbolsheimer Braukman refused to con-
sent to a Board election . On November 12 the Engineers filed its petition with
the Board . A few days later Saltzgaber went on her vacation , returning
December 6. Upon reporting for work she was asked by Braukman , and con-
sented, to "help out" Mrs. Braukman at the latter 's real estate office in North
Denver . Although Braukman clearly implied that she was needed by Mrs.
B,raukman only "for a while," and until she had gotten "things straightened
out," she was not recalled to her regular job with the Respondent , and about`
6 months later her employment was fully terminated by Mrs. Braukman.
The record reveals no major dispute in the evidence from which the foregoing
findings are drawn . Braukman , as a witness , admitted asking Saltzgaber to
resign and transferring her to his wife's office.
General Counsel contends that Braukman ' s treatment of Saltzgaber was dis-
criminatory and designed to discourage organization of the employees in Engi-
neers. Braukman claims that his action was taken , in effect, for self-protection,
and because Saltzgaber had been serving as his confidential secretary.
The circumstances of the transfer fully support General Counsel's position.
Although Braukman answered in the affirmative when asked by his counsel. if
she had acted as his "private secretary ," his factual description of her duties
reveals nothing of a "confidential" nature. "She did typing , minor bookkeeping,
posting, cost records," he said. Moreover , having transferred her to his-wife's
office, for a long period thereafter Braukman continued to take similar work to
Saltzgaber , and she performed it as before but at another location . Finally, the
'ON. L. R. B. v. Stocker Manufacturing Company, 185 F. 2d 451 ( C. A.3), enforcing
86 NLRB 666.
SCREW MACHINE PRODUCTS COMPANY 1619
timing of Braukman's request that she resign shows that his purpose was other
than he claimed. His demand was made the day after her father had asked to
bargain and he had refused even to consent to a Board election. No negotia,
tions were in progress, and Braukman had clearly implied that none would be
engaged in, since the Board had once declined jurisdiction.
Furthermore, when Saltzgaber declined to resign, Braukman made it plain that
her continued employment depended upon further action on the part of the shop
employees: On November 12 the Engineers' petition was filed, demonstrating to
Braukman that organizational efforts had not ceased. Immediately upon her
return from vacation Saltzgaber was transferred. Braukman's previous threat
was, in effect, carried out. She was promptly removed from the Respondent's
office and payroll.
The undersigned Trial Examiner finds no merit in the Respondent's position
as to Saltzgaber;' but concludes and finds that her employment at the Respond-
ent's plant was discriminatorily terminated on December 6, 1948, for the purpose
of discouraging membership in Engineers.
2. Hilda Body Ralston, Elizabeth Merriman, and Charles F. Mensing
Although all were not laid off the same day, these three employees were active
union leaders, known as such to Braukman, and it is the Respondent's conten-
tion that all were removed from the payroll for economic reasons, in accordance
with a necessary reduction in force. Their terminations, therefore, reasonably
may be considered not in isolation but as a group.
Ralston, previously identified as the employee who was selected by other
employees to seek aid in their efforts at self-organization and who, when Brauk-
man sought to poll their union wishes, openly protested against his statements,
was laid off on October 1, the same day Saltzgaber was asked to resign. Mer-
riman, a machine operator with greater seniority than any other employee in the
shop, was laid off on October 25. Her testimony isundisputed that she had
previously discussed with Braukman the fact that she had been an active
organizer of unions in other plants. Mensing, the shop steward, well known to
Braukman as the most active union leader in the shop, was laid off on November
19, shortly after he returned from his vacation.
In her brief, counsel for General Counsel concedes that the layoffs of Ralston
on October 1 and of Merriman on October 25 were nondiscriminatory, and that
they were actually occasioned by lack of work. In view of her concession
and the state of the complaint and the record, the undersigned Trial Examiner
accepts the premise of nondiscriminatory initial layoffs as to these two em-
ployees. The Trial Examiner cannot ignore, however, despite the Respondent's
claim that the layoffs were necessary: (1) Braukmau's testimony that "business
stayed good" the rest of 1948, after voluntarily granting a general wage increase
in May, and (2) the fact revealed by the Respondent's records and the super-
intendent's testimony that Alvis Rice was hired as a new employee in the same.
department, the week after Ralston was laid off and the week before Merriman
was likewise terminated. If work was, in point of fact, as slow as the super-
intendent claimed, his contention that Rice was hired to replace an employee
who had previously quit is plainly inconsistent. Extreme doubt upon the
reliability of management testimony on this point is cast, also, by the contradic-
tion in the testimony of Young and Braukman as to Rice. Young stated that
"Validity of the Respondent's position as to this employee is further discredited by
the claim in its answer that her transfer was "solely the result of the decline in the
business of the partnership."
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rice was hired to replace Phillips, a foreman, who had quit. Braukman, how-
ever, testified that Foreman Phillips did not quit until June 1949, some 8 months
after Rice was hired. Nor can the undersigned Trial Examiner ignore the
credible evidence that both Ralston and Merriman were satisfactory employees,
and that until October 1948, it had been the Respondent's practice to observe
senority in laying off employees.
As to Ralston, it is General Counsel's claim that she was discriminated against,
as alleged in the complaint, in November, after she had been recalled from her
October layoff. In substance, the circumstances bearing upon this point are
as follows. On November 3 she was recalled by Young, who gave her at least
implied assurance that work would be steady. This assurance she solicited;
because just before the recall she had accepted another position. She worked
steadily until November 19 when, although "right in the middle of a job" accord-
ing her credible and undisputed testimony, she was approached by Young
who told her she was to be laid off again. "I got mad," Ralston testified, and
"told Mr. Young that if Mr. Braukman wanted to get rid of me I wished he would
fire me and get it over with so I could go out get another job and know that I
wasn't going to get called back right away as soon as I got situated someplace
and get called back and fired out again." After consulting Braukman, Young
told her, "If that is the way it is, you are fired." Young then added, "As long
as I am in charge here there will never be any more women in the shop." Al-
though differing in emphasis and some details, the testimony of Braukman and-
Young as to this event agrees substantially with that of Ralston.
The Respondent claims that Ralston quit. The established circumstances fail
to support this claim. It was, in effect, a constructive discharge. In view of
the fact that a new employee had been hired in her department after she had
been laid off, and her assurance from Young when recalled that she would have
steady work, her demand that' management make its position plain was reason-
able.
Merriman was told by Young on October 25 that she was being laid off because
of lack of work. Her testimony is uncontradicted that in January 1949 she
called Braukman and was specifically told her layoff was temporary and that
she would be called back as soon as work "came in." She has never been re-
called, although the Respondent's production force was again increased in May
1949, and at the time of the hearing had almost tripled in number since the 1949
layoffs. At the hearing Braukman testified that "to this date she is merely laid
off." Young, however, as a witness stated that he had no intention of rehiring
her or of hiring any woman. Asked to explain this position, Young declared that
he preferred "men that are willing to learn set-up and take care of themselves
on the machine." Whatever may be Young's general opinion and preference
as to the hiring of male labor, his own testimony establishes that he had never
had any complaint about the work of either Merriman or Ralston. Nor is any
claim made that they were selected for lay-off because they were women. No
credible evidence was offered to support the Respondent's present position, which
in his brief counsel for the Respondent admitted "may be discrimination against
women." Had this position been more than a pretext, it is reasonable to be-
lieve that Braukman, in January 1949, would have told Merriman he intended to
hire no more women.
Finally, there is marked dissonance in management reasons given at the
hearing and the affirmative allegations in the sworn answer. It is contended
in that document that both Ralston and Merriman, "and each of them, were
offered opportunities to return to work for the partnership and declined to do
so." Facts established by the Respondent's own witnesses show that Merriman
has never been offered an opportunity to return to work. So far as the record
SCREW MACHINE PRODUCTS COMPANY 1621
shows, it appears that the Respondent hastily shifted its defense, in an effort
to give it some degree of plausibility, after Ralston volunteered the statement
that Young, having discharged her, told her he would hire no more women
employees. (The answer alleges, furthermore, that Ralston was laid off, on
November 19, not that she quit, as claimed in the Respondent's brief.)
The undersigned Trial Examiner is convinced by the preponderance of credible
evidence, and finds, that discrimination as to the rehiring of Merriman occurred-
not because she was a woman, but because she was an active union adherent.
Specifically, as to the two women, it is concluded and found that Ralston was
discriminatorily discharged on November 19, 1948, and that Merriman was dis-
criminatorily denied recall to her job in May 1949, when the Respondent's
production force was increased, to discourage membership in Engineers.
Mensing, like Ralston, was laid off on November 19, a few days after Brauk-
man had been notified that Engineers had filed its petition with the Board.
It is the Respondent's claim that he was laid off because of lack of work.
As found above, he was the shop steward and well known to Braukman as
the most active union leader in the shop. His services were terminated upon
Braukman's orders and over the superintendent's protests.
Mensing's ability is not questioned by the Respondent. When laid off he was
given a letter of recommendation by the superintendent. It said, in part :
He has always shown an above the average ability and attitude of coopera-
tion on the job.
According to Braukman's own testimony Mensing had more seniority and
more ability in the same department, when laid off, than employee Robert Melson,
who was retained. Braukman further testified that Young protested, when .told
to lay Mensing off, that :
Practically every job that we have needs one person or another to do that
thing. We just haven't any extra people to lay off.
Young's protest to Braukman finds support in Mensing's testimony that when
laid off, "I was busy at the time, in fact, I had always been busy."
In face of the facts that a new employee had just been hired, that Mensing
had both more seniority and ability than another employee who was retained,
and that he was busy when laid off, Braukman's claim that he was laid off
for lack of work fails to have merit or validity.
Mensing's following testimony is without credible or substantial refutation in
the record.12 When informing him that he was to be laid off on November 19:
Mr. Young came up to me . . . and he said, "What did you do to make
Braukman mad at you . .. That is the first time he told me who to
lay off."
Not in lack of work but in Young's remark, the undersigned Trial Examiner is
persuaded, is revealed the real motive for the layoff of Mensing. Braukman re-
sented the persistence of his employees in seeking representation by the Engi-
neers, and resented Mensing's continued leadership in those efforts. It is con-
cluded and found that Mensing was, in effect, discriminatorily discharged on
November 19, 1948.
Engineers filed its original charge December 6, 1948, naming Mensing as dis-
criminatorily discharged. On January 28, Young wrote to the employee, who
already had obtained regular employment elsewhere, offering him work on one
specific order, and voicing hope that "other orders" would be forthcoming.
Mensing declined what plainly was uncertain and conditional reinstatement.
21 Young said only that he did not recall making this remark.
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned Trial Examiner finds that he has not been offered full rein-
statement.
In summary, the undersigned Trial Examiner concludes and finds that by the
discriminatory discharges of Mensing and Ralston, and by the discriminatory
failure to reemploy Merriman, to discourage membership in the Engineers, the
Respondent has interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed by Section 7 of the Act."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring in
connection with its operations described in Section I, above, have a close, inti-
mate, 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 unfair labor practices, the
undersigned Trial Examiner will recommend that it cease and desist therefrom
and take certain affirmative action which will effectuate the policies of the Act.
It has been found that the Respondent discriminated in regard to the hire
and tenure of employment of Marie Saltzgaber, Hilda Body Ralston, Elizabeth
Merriman, and C. F._ Mensing. It will be recommended that the Respondent
offer to them immediate and full reinstatement to their former or substantially
equivalent positions 14, and make them whole for any loss of pay they may have
suffered as a result of the discrimination against them by payment to each of a
sum of money equal to that which he or she would have earned as wages from
the date of the discrimination, as found, to the date of the offer of reinstatement.
Loss of pay shall be computed on the basis of each separate calendar quarter or
portion thereof during the period from the Respondent's discriminatory action
to the date of a proper offer of reinstatement. The quarterly periods, herein
called quarters, shall begin with the first day of January, April, July, and
October. Loss of pay, shall be determined by deducting from a sum equal to that
which each would normally have earned for each such quarter or portion thereof,
his net earnings,13 if any, in other employment during that period. Earnings in
one particular quarter shall have no effect upon the back-pay liability for any
other quarter. " In accordance with the Woolworth decision, it will. be recom-
mended that the Respondent, upon reasonable request, make available to the
Board and its agents all records pertinent to an analysis of the amount due as
back pay. -
The unfair labor practices found reveal on the part of the Respondent such a
fundamental antipathy to the objectives of the Act as to justify an inference
that the commission of other unfair labor practices may be anticipated. The
preventive purposes of the Act may be frustrated unless the Respondent is re-
quired to take some affirmative action to dispel the threat. It will be recom-
11 The record reveals but one act of interference which might, inferentially, be construed
as directed against the Machinists : that of Braukman's polling of the employees in
September. The undersigned is convinced that, since the Machinists' petition had been
dismissed by the Board, Braukman's act was designed to discourage membership in any
outside labor organization, and not specifically in the Machinists. It will be recom-
mended, therefore, that the allegations of the complaint as to the Machinists be dismissed.
14 The Chase National Bank of the City of New York, San Juan,-Puerto Rico, Branch,
65 NLRB 827.
16 Crossett Lumber Company, 8 NLRB 440, 497-8.
'O F. W. Woolworth Company, 90 NLRB 289.
STONE PAPER TUBE COMPANY 1623
mended , therefore , that the Respondent cease and desist from in any manner
interfering with, restraining , and coercing its employees in the exercise of rights
guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case , the undersigned Trial Examiner makes the following :
CONCLUSIONS OF LAw
1. International Union of Operating Engineers , Local No. 1, AFL , and Inter-
national Association of Machinists, are labor organizations within the meaning
of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Marie
Saltzgaber , Hilda Body Ralston, Elizabeth Merriman , and C. F. Mensing, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
3. By such discrimination and by interfering with, restraining , and coercing
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 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
STONE PAPER TUBE COMPANY and DISTRICT LODGE #67, INTERNA-
TIONAL ASSOCIATION OF MACHINISTS , PETITIONER . Case No. 5-RC-
738. June 277 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before John J. A. Reynolds,
Jr., 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 power in connection with this case to a three-member
panel [Chairman Herzog and Members Murdock and Styles].
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 organization involved claims to represent employees
of the Employer.
3. No 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, for the following
reasons:
United Mine Workers, UMW, District #50, hereinafter called
the Intervenor, and the Employer have bargained with regard to
94 NLRB No. 238.