E.v.Prentice Machine Works, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1958

120 N.L.R.B. 1691 (N.L.R.B. 1958)

E. V. PRENTICE MACHINE WORKS, INC. 1691
reduced to writing, it will therefore be recommended that Local No. 65 execute
the said contract as drawn, dated July 17, 1956, and effective to July 17, 1958.
Upon the basis of the foregoing findings of fact , and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Inland Steel Products Company is engaged in commerce within the meaning
of the Act, and its operations meet the jurisdictional standards set by the Board.
2. Sheet Metal Workers Union, Local No. 65, AFL-CIO, is a labor organization
within the meaning of the Act, and represents and bargains for the unit of employees
described herein as an appropriate unit for collective bargaining.
3. Since July 15, 1953, and at all times material herein, Sheet Metal Workers
Union, Local No. 65, AFL-CIO, has been the representative for the purposes of
collective bargaining for the following described unit of the employees of Inland
Steel Products Company, Cleveland, Ohio:
All hourly rated manufacturing employees at the Company's Cleveland, Ohio,
plant excluding all warehouse employees (including shipping-receiving and
maintenance employees), truckdrivers, office and clerical employees, and all
supervisory employees as defined in the Act.
4. By failing and refusing to bargain with the Inland Steel Products Company
in its capacity as the exclusive representative of the employees within the appro-
priate unit , the aforesaid Local No. 65 has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
E. V. Prentice Machine Works, Inc. and International Associa-
tion of Machinists , District Lodge No . 24, AFL-CIO. Case No.
36-CA-788. June 07,1958
DECISION AND ORDER
On January 30, 1958, the Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was ehgaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report, and the
Respondent filed a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed.' His
' For the reasons stated in The Great Atlantic and Pacific Tea Co., 118 NLRB 1280,
we find no merit in the Respondent's exceptions to the Trial Examiner's rulings denying
Respondent's motion at the hearing that the Board make available to the Respondent for
Inspection and copying affidavits of the three complainants herein which the General
Counsel obtained during the investigation of the charges, the General Counsel having
previously denied such request by the Respondent. Member Jenkins, who expressed his
120 NLRB No. 210.
1692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case , and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the following additions :
The Trial Examiner found, and we agree, that the Respondent in
violation of Section 8 (a) (3) and (4) of the Act discriminatorily
laid off complainants Lavadure, Pedersen, and Pettit on May 3, 1957,
because of their union membership and activities, and because each of
them gave testimony adverse to the Respondent at a hearing, from
April 30 to May 2, 1957, in a previous Board proceeding. The Deci-
sion and Order of the Board in the previous proceeding, Case No.
36-CA-770, was issued on April 15, 1958, finding the instant Respond-
ent in violation of Section 8 (a) (1), (3), and (5) of the Act.' Com-
plainants Lavadure, Pedersen, and Pettit were among the 10 employees
found by the Board ,in Case No. 36-CA-770 to have been discrimina-
torily terminated by the Respondent on February 22, 1957, on ac-
count of their union activities. However, the Board in that case did
not include the 3 complainants in its reinstatement order as it appeared
in that record that these 3 individuals, of the 10 discriminatees, had
been recalled to work by the Respondent early in April 1957. We find
that the credited evidence in the present case considered in conjunc-
tion with the material evidence and findings in Case No. 36-CA-770
fully supports the Trial Examiner's conclusion that the Respondent's
defense of economic justification advanced here, as it was in the previ-
ous proceeding, was only a pretext for its discriminatory reasons, and
that in again terminating Lavadure, Pedersen, and Pettit, on May 3,
1957, the Respondent violated Section,8 (a) (1), (3), and (4) of the
Act, as alleged.
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 Respondent, E. V. Prentice
disagreement with the majority 's denial of a similar motion in the cited case, and who
continues to believe his dissent to be correct, now concurs because he feels bound by
Board policy as determined by the majority in that case ( see Communist Party of the
United States v. Subversive Activities Control Board , 254 F . 2d 314 (C. A., D C ).
2E V. Prentice Machine Works, Inc, 120 NLRB 417. The Trial Examiner granted
the General Counsel 's motion to incorporate in the present record the record of the previous
proceeding, which involved the same parties and the prior discriminatory termination of
the three complainants heiem, among others The evidence in the previous case is clearly
material and relevant to the issues herein, inter alia, with respect to Respondent 's union
animus , discriminatory motivation , and circumstances bearing upon the Respondent's
defenses of economic justification We take judicial notice of the Board 's decision in the
earlier case and have considered the findings therein as evidence in the instant proceed-
ing. See , e. g, N. L. R B v Reed if Prince Manufacturing Company, 205 F. 2d 131,
i39; Editorial "El Impareial,", Inc., 99 NLRB 8, 9. Cf ., Winter Garden Citrus Products
Cooperative , 116 NLRB 738 , 740, in which the unfair labor practice findings of the prior
case, unlike the situation here, antedated the 6 -month limitation period under Section
10 (b) of the Act, and was therefore considered in the later proceeding only as background
evidence.
E. V. PRENTICE MACHINE WORKS, INC. 1693
Machine Works, Inc., Portland, Oregon, its officers, agents , successors,
and assigns, shall:
1. Cease and desist from :
(a) Discharging, laying off, or otherwise refusing employment to
any employee because he has given testimony in a National Labor.
Relations Board proceeding.
(b) Discouraging membership of Its employees in International
Association of Machinists, District Local No. 24, AFL-CIO, or any
other labor organization, by discriminating in any manner with regard
to their hire and tenure of employment, or any term or condition of
employment.
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for purposes of
collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment as authorized in Section 8
(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Pedersen immediate and unconditional reinstatement to
his former or substantially equivalent job, without loss of any rights
or privileges heretofore enjoyed by Pedersen.
(b) Make Lavadure, Pedersen, and Ernest H. Pettit whole for any
loss of pay they may have suffered by reason of Respondent's dis-
crimination against them in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary for a determination of the amount of
back pay due and the rights of employment under the terms of this
Order.
(d) Post in its offices in Portland, Oregon, copies of the notice at-
tached to the Intermediate Report marked "Appendix A." 3 Copies.
of said notice,-to be furnished by the Regional Director for the Nine-
teenth Region, shall, after being signed by Respondent's duly au-
thorized representative, be posted by Respondent immediately upon,
8 This notice is to be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to •a Decision and Order" the words "Pursuant to a Decree of the-
United States Court of Appeals, Enforcing an Order."
1694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receipt thereof, and be maintained by it for a period of at least sixty
(60) consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify said Regional Director in writing, within ten (10) days
from the date of this Order, what steps it has taken to comply herewith.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on July 3 , 1957, by International Association of Machin-
ists, District Lodge No . 24, AFL-CIO, herein called the Union , the General Counsel
of the National Labor Relations Board , herein respectively called the General
Counsel I and the Board , issued a complaint , dated September 23, 1957, against E. V.
Prentice Machine Works, Inc., herein called Respondent , alleging that Respondent
had engaged in, and was engaging in, unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1), (3 ), and (4 ) and Section 2 (6) and ( 7) of the
National Labor Relations Act, as amended , 61 Stat. 136, herein called the Act.
More specifically , the complaint alleged that Respondent , on May 3 , 1957,2 laid
off Robert M. Lavadure , Hans O. Pedersen , and Ernest H. Pettit, and discriminatorily
delayed recalling them to work until May 27, because of their membership and activi-
ties in behalf of the Union or because each had given testimony in a prior unfair
labor practice case before the Board involving Respondent.
Respondent duly filed an answer denying the commission of the unfair labor prac-
tices alleged.
.Pursuant to due notice, a hearing was held on October 29 and 30,3 at Portland,
Oregon, before the duly designated Trial Examiner. The General Counsel and
Respondent were represented by counsel and the Union by a representative thereof.
Full opportunity was afforded all parties to be heard, to examine and cross -examine
witnesses , to introduce relevant evidence , and to file briefs with the Trial Examiner
on or before December 9.4 After the close of the hearing , the parties hereto entered
into a written stipulation correcting certain inaccuracies appearing in the stenographic
transcript of the hearing . The stipulation is hereby approved and received in evi-
dence as Trial Examiner 's Exhibit No. 2.
Upon the entire record 5 in the case , and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS OPERATIONS
Respondent , an Oregon corporation , has its principal offices and place of business
in Portland, Oregon , where it is engaged in the business of manufacturing machines
used in the production of various forest products . During 1956, Respondent manu-
factured and sold machines valued in excess of $500,000 , approximately 80 percent
of which were made in the State of Oregon , to E. V . Prentice Co. Inc., which , in turn,
during 1956 , resold and shipped to points located outside the State of Oregon, ma-
chines valued by Respondent in excess of $200,000.
1 This term specifically includes counsel for the General Counsel appearing at the hearing.
2 Unless otherwise noted all dates refer to 1957.
3 At the conclusion of the session on October 30, the hearing , on Respondent 's request,
was adjourned to November 12, to allow Respondent 's counsel time to decide whether he
desired to adduce further evidence By letter dated November 5, copies of which were
duly served upon the General Counsel and the Union, Respondent 's counsel advised the
Trial Examiner that he had no further evidence he wished to adduce By order, dated
November 19, copies of which were duly sei ved upon the parties and received in evidence
as Trial Examiner ' s Exhibit No 1, the Trial Examiner closed the hearing.
' At the request of the General Counsel the time to file briefs was extended to January 6,
1958.
6 The stenographic report of the hearing falls to disclose that Respondent 's Exhibit
No. 8, was received in evidence over the objection of the General Counsel The record
is hereby corrected to show such receipt.
E. V. PRENTICE MACHINE WORKS, INC. 1695,
Upon the above-admitted facts, the Trial Examiner finds that Respondent is, and-,
during all times material was, engaged in commerce within the meaning of Section
2 (6) and (7) of the Act and that it will effectuate the purposes of the Act for the
Board to assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists , District Lodge No. 24, AFL-CIO, is a
labor organization admitting to membership Respondent 's employees.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Upon a charge, dated February 25, and an amended charge, dated March 6, the
General Counsel issued a complaiht,6 dated April 12, against Respondent alleging
that Respondent violated the Act by, among other things, (1) discriminatorily laying
off or discriminatorily discharging, on February 22, 10 named employees because
of their union membership and activities, and (2) on February 22, and thereafter,
refused to bargain collectively with the Union, the exclusive bargaining representative
of Respondent's production and maintenance employees. On April 25, Respondent
duly filed an answer denying the commission of the unfair labor practices alleged.
Pursuant to due notice, a hearing was held on April 30 and May 1 and 2, at Port-
land, Oregon, before Herman Marx, the duly designated Trial Examiner. On August
13, Trial Examiner Marx issued his Intermediate Report and Recommended Order
wherein he found that Respondent had (1) on February 22, discriminatorily laid off
or discriminatorily discharged 10 employees named in the complaint; (2) on March
5, and thereafter, refused to bargain collectively with the Union as the duly designated
representative of Respondent's production and maintenance employees; and (3) en-
gaged in certain other unfair labor practices. Trial Examiner Marx recommended
that Respondent (1) cease and desist from (a) refusing to bargain collectively with
the Union as the exclusive representative of the employees in the appropriate unit;
(b) discouraging membership in the Union, or any other labor organization, by dis-
criminatorily laying off or discriminatorily discharging any of its employees; (c) un-
lawfully interrogating its employees about their union membership or activities;,,
(d) in. any other manner interfering with, restraining, or coercing its employees in
the exercise of the rights guaranteed by Section 7 of the Act; and (2) upon, request,,;
bargain collectively with the Union, offer immediate reinstatement to the 10 em-
ployees named in the complaint, make each of them whole for any loss . of. wages
suffered as the result of their unlawful separation from their jobs, and post the .
customary notices.
On or about September 16, Respondent duly filed exceptions to the aforesaid
Intermediate Report and a supporting brief. The matter is now pending undeter-
mined before the Board.
In making the following findings of fact, conclusions of law, and recommendations,
the Trial Examiner has carefully read and considered the stenographic transcript of
the hearing in Case No. 36-CA-770, the exhibits received in evidence, the Respond-
ent's brief to the Trial Examiner, the Trial Examiner's Intermediate Report and
Recommended Order and the Erratum attached thereto, and Respondent' s excep-
tions •to the Intermediate Report and Recommended Order and its supporting brief.
B. The pertinent facts contained in the instant record
Robert M. Lavadure testified that he was called as a General Counsel 's witness in
Case No. 36-CA-770 and testified there on April 30.
He further testified that: He has been recalled to work on April 4; on said day
Wesley Pettit told him that he (Pettit) was superintendent and he was being hired
for a week or two until Pettit's father, E. M. Pettit, recovered from his illness; 7 the
work assigned to him was similar to the work he did prior to his February 22 layoff,
except he did no welding or burning work after being rehired; about a week prior
to May 3, Charles Prentice, plant manager, told him, after there had been some
discussion between them regarding a faulty welding job, he would be given a raise
in wages "as soon as this was over"; on or about May 1, Charles Prentice said to
him that, to quote Lavadure, "he would try to get two of us to go down and change
the parts" on a certain machine which was to be serviced by Respondent; he was
not told by Charles Prentice, or by any other official of Respondent, prior to May-3,
"Case No. 38-CA-770 (120 NLRB 417)
7 E. M Pettit was absent from the plant from March 29 until April 15.
1696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there was to- be a layoff; and a few minutes prior to quitting time on May 3,
General Manager Robert Prentice handed him, Ernest H. Pettit,8 and Hans Pedersen,
their respective paychecks and then said, "I'm sorry to have to lay you off. Hope
it's not over a week or two"; on May 24, he and Richard L. Wurth 8 visited the plant
and inquired of Wesley Pettit regarding returning to work; 10 Pettit replied he
"would have to make a phone call first"; and Pettit made the phone can, but not in
the presence of Wurth or him. Pettit then informed him to be sure to report for
work on Monday, May 27,,and then told Wurth to report May 27, adding, to quote
Lavadure, "He didn't know if he [Wurth] could work or not because it depended
on how many of the other boys were coming back."
Wurth testified that: Wesley Pettit telephoned him on May 23, and asked him
to ascertain how many of the "old employees" wanted to return to the plant; the
following day he and Lavadure called upon Pettit at the plant and were informed
by him that Respondent intended to rehire some of the men previously laid off but
not all of them; after the completion of a telephone call, not made in their presence,
Pettit said, to quote Wurth, "They -wanted Bill Pettit and Hans Pedersen and Bob
Lavadure for sure and for me to come over [on May 27], but he didn't know if
I could go to work or not"; prior to making the above-mentioned phone call, Pettit
remarked, to again quote Wurth, "He wanted to hire us back in the week before that,
but they wouldn't let him"; and he returned to work on May 27, and about a week
later Pettit remarked to him that he needed about 13 men to complete the job on
time."
Pedersen testified that: He was in attendance at the previous hearing on all
3 days it was in session and was a witness for the General Counsel on the first and
last day; he was reemployed by Respondent on April 3, and worked continuously
until May 3; sometime between the dates immediately referred to he had a con-
versation with Ed Heth 12 relative to the progress of the so-called Tri-Play order 13
and that Heth told him, "As far as engineering is concerned, we're ready anytime,
we're ready"; just about quitting time on May 3, he, E. H. Pettit, and Lavadure, were
laid off by Robert Prentice and each given his respective paycheck; he had no
advance notice of any contemplated layoff; Charles Prentice never spoke to him
about a service-call assignment; 14 when Wesley Pettit called him on either May 22
or 23, and requested him to return to work, he told Pettit he had been promised
a job and would advise Pettit the following week which job he would accept; that
when he called Pettit, as promised, the latter said, "Charley [Prentice] wanted to
talk to me before I went back to work" for Respondent; that on or about June 4,,
he saw Charles Prentice who said that before Respondent would rehire him as a
journeyman, he would have to take and successfully pass a welder's test; that he
told Charles Prentice that he could not take the test that day, but would advise him
when he would do so; that later he called Robert Prentice and told him he was
not returning to Respondent's plant; that at no prior time had he ever been asked
by any Respondent official to take a welder's test. .
Ernest H. Pettit testified that: He was a General Counsel's witness in the prior
proceeding; on March 30, his nephew, Wesley, called at his home and told him to
report for work on April 1; he worked continuously until May 3, when he was laid
off with Lavadure and Pedersen; he had no prior warning that he was to be laid off
on that day; on May 26 Wesley Pettit again called at his home and told him to,
report for work the following day and that he did so; during the conversation men-
tioned immediately above, his nephew told him that Respondent was rehiring him,
Pedersen, and another employee; and about a week or so after May 27, Wesley
Pettit told him that he had talked to Charles Prentice "about more men to do the
job he had to do there" and that Charles Prentice replied, "We had plenty of time."
Charles Prentice testified that: He could not recall having any conversation with
Lavadure about increasing the latter's wages. He did, however, recall talking to
Lavadure about certain criticism levelled against Lavadure for a faulty welding jolt
8 Uncle of Wesley Pettit and also referred to in the record as Bill Pettit.
8 A complainant in Case No. 36-CA-770.
10 About a week after his May 3 layoff Lavadure visited the plant, evidently seeking
work
u At this time Respondent had four nonsupervisory shop employees.
12 Respondent's then chief engineer with supervisory status within the meaning of the
Act
18 An order running well over $50,000, payment for which was guaranteed by an agency
of the Mexican government. -
14 Charles Prentice testified that he told Pedersen and Lavadure on May 1 that he would
assign them to a service call in order to defer a layoff.
I
E. V: PRENTICE MACHINE WORKS , INC. 1697
which someone had attributed to Lavadure and that during the conversation he told
Lavadure , "If anybody from any branch of the organization came in and criticized
his work or his efforts , he was to send them to Wes [Pettit ] or myself."
Wesley Pettit testified that: He could not recall that during his talk on May 24 with
Lavadure and Wurth , he mentioned that he needed men that day ; when Lavadure
and Wurth came to the plant on May 24, he asked Charles Prentice "if he needed
any more men at this time?" and that Prentice told him "to take on Bob [Lavadure],
and to call Dick [Wurth] on Monday , if he needed him"; he could not recall a
discussion with Wurth regarding the number of men "needed to get the work out";
and he could not recall having a conversation with Ernest H. Pettit a week or so after
May 27, "with reference to needing more men."
In the light of the Trial Examiner's observation of the conduct and deportment at
the hearing of Lavadure, Wurth, Pedersen; and Ernest H. Pettit, and after a very
careful scrutiny of the testimony, all of which has been carefully read, and parts
of which have been reread and rechecked several times, and being mindful of the
contentions of the parties with respect to the credibility problems here involved,
the Trial Examiner finds the testimony given by Lavadure, Wurth, Pedersen, and
Ernest H. Pettit, as epitomized above, to be substantially in accord with the facts.
Accordingly, the Trial Examiner rejects Charles Prentice's and Wesley Pettit's versions
of the incidents and conversations referred to in the testimony of the four named
employee-witnesses. Not only was Charles Prentice an unconvincing witness, but
when questioned by the General Couns'E;l..regarding matters obviously within his
personal knowledge, he would reply, "I assume," "I believe," "I do not recall," or
give some other evasive answer. Wesley Pettit impressed the Trial Examiner as a
witness who was endeavoring to slant his testimony to what he thought would be the
best interest of Respondent.
Charles Prentice testified that: about noontime on Wednesday, May 1, he felt
ill and decided to go home, but before leaving the plant, "I tried to coordinate the
activities of the fellows that were there in order to work the week out so that by
Friday all the work would be done that was pertinent and it would be a normal layoff
time"; he did not think that prior to May 1, he was in a position to definitely determine
whether a layoff was necessary; that prior to May 1, he did not discuss a possible
layoff with his brothers; 15 before *oing home on May 1, he thought he spoke to
Lavadure and Pedersen 16 about going to St. Helens or Scapoose "to take care of a
specific job" the following day; and he did not "specifically" tell Wesley Pettit that
Lavadure, Pedersen, and Ernest H. Pettit would be laid off on May 3, but "I think
he knew it" because of "these arrangements to conclude the work."
Charles Prentice further testified as follows:
Q. Had you talked to Wes at any time before Wednesday about a possible
layoff on May 3?-A. I don't believe I did.
Q. Now, who was it that decided how many men were to be laid off?-A. I
believe that was my decision.
Q. And, when did you reach that decision?-A. I don't believe I reached
that decision, I think it just happened. I think-in looking back on it, I think
that I made, I decided, we'll say, to lay off the recently recalled employees.
Q. You think you reached that decision on Wednesday before you went
home?-A. I say I don't think I reached a decision, I think it just happened.
Q. Well, then, did you contact Wes Pettit at any time after Wednesday
before May 3 or on May 3?-A. No, I don't believe I did.
Q. Well, then, did Wes simply on his own volition lay off the last three men
that were taken back?-A. No.
Q. Well, then, how did Wes know who to lay off?-A. On Friday after-
noon, as I recall, I received a call from Robert Prentice who asked me if I
had any more work for the men for next week. And, as I recall our conver-
sation, I said, I didn't see that there was anything there for them. And, he
says, "Shall I lay them off?" And, I said, "I would appreciate it if you would."
Wesley Pettit testified that during the latter part of the week immediately
preceding May 3, "I'd asked Charlie [Prentice].. . If we didn't have work,
we'd probably have to lay them off," to which Prentice made no comment; and
that he did not know the three men were going to be laid off until "about five or
ten minutes before quitting time" on May 3, when Robert Prentice came into the
shop and so informed him.•
15 Namely, Robert, the general manager, and David. a member of the board of directors.
1E Pedersen was in attendance on that day at the hearing in the prior proceeding.
483142-59-vol 1210-108
1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regarding his telephone conversation with his brother Charles on May 3, Robert
Prentice testified on direct examination as follows:
Q. Did you have any talk with Charlie Prentice?-A. I did.
Q. What d:d you tell Charlie?-A. The subject of shop work had been of
concern for the previous few weeks. I called Charlie-Charles was sick for
about two days-prior to the layoff. I called him on Friday to find out if
there was anything I could do for him; since I was General Manager, I was-
I felt it my responsibility to fill in for the Manager in his absence if there was
anything I could do for him.
Q. What conversation did you have with Charlie?-A. In realizing-in
regards to what?
Q. In regard to the layoff?-A. In regards to the layoff, I asked Charlie if
he had anything that he wanted done out there in the shop, and he said that-
he asked me had any orders come in since he had been home sick. I told him
that there were no orders that had come through the office for the shop, and
he said, "In that case, you'll have to reduce the crew back down to the standby
crew," and by that, he meant Wes and Wes' father.
C. Concluding findings
Both on direct and cross-examination, Charles and Robert Prentice each tried
to convey the impression that the sole cause of the May 3 layoff was due to a lack
of shop orders 17 on hand, and because of such shortages there had been discussions
about an imminent layoff over a period of approximately 2 weeks prior to May 3,
between Charles and Robert Prentice and between Robert and David Prentice.
It is true that on May 3 there were not many shop orders. Be that as it may, that
condition does not necessarily mean that the May 3 layoff was not unlawful. The
record in this case, as well as the record in Case No. 36-CA-770, clearly indicates,
and the Trial Examiner finds, that no layoff was contemplated until the three named
complainants herein testified at the previous hearing and there disclosed their
un on membership and activities and gave evidence adverse to Respondent's
position.18
The Trial Examiner is convinced , and finds, upon the entire record in this case,
including the documents referred to in section III A, above, that Lavadure, Pedersen,
and Ernest H. Pettit were laid off on May 3, and not recalled until May 27, because,
as alleged in the complaint , each of them gave evidence before the Board in Case
No. 36-CA-770, and because of their union membership activities. The Trial
Examiner also finds that Respondent 's offer to reinstate Pedersen on May 27 was
conditioned upon his taking a welder 's test and hence such offer was not in accord-
ance with the requirements of the statute . This finding is buttressed by the fact
that throughout Pedersen 's entire employment with Respondent he had been a
journeyman and during said period had never been asked by any Respondent official
to take such a test . The Trial Examiner further finds that Respondent 's contention
that its economic conditions were such that it was forced to lay off the three men
on May 3 was advanced solely for the purpose of distracting attention from its real
reason , to wit, its union animus. Accordingly , by discriminating against Lavadure,
Pedersen , and Ernest H. Pettit , in the manner set forth above, Respondent violated
Section 8 ( a) (3) and ( 4) of the Act, thereby interfering with , restraining, and
coercing its employees in the exercise of the rights guaranteed by Section 7, in
violation of Section 8 (a) (1) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent 's activities , set forth in section III, above , occurring in connection
with Respondent 's operations described in section 1, 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 Respondent has engaged in the unfair labor practices set
forth above , the Trial Examiner recommends that it cease and desist therefrom
17 As distinguished from orders not processed by the engineering department.
'8 The record in the prior case Is replete with substantial evidence indicating Respond-
ent's antiunion bias. It would serve no useful purpose to set forth at length such evi-
dence, for that case is now before the Board for decision.
E. V. PRENTICE MACHINE WORKS, INC. 1699
and that it take certain affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent discriminatorily laid off Lavadure and Ernest
H. Pettit on May 3, and discriminatorily refused them reinstatement until May 27,
the Trial Examiner recommends that Respondent make them whole for any loss
of pay suffered by each as a result of its unlawful conduct, by payment to him of
a sum of money equal to the amount he normally would have received as wages
during said period , less his net earnings.
Having found that Respondent discriminatorily laid off Pedersen on May 3, and
thereafter failed and refused to offer him unconditional t'einstatement, the Trial
Examiner recommends that Respondent offer Pedersen immediate unconditional
reinstatement to his former or substantially equivalent job and make him whole
for the loss of pay from May 3 until Respondent offers him unconditional rein-
statement by payment to him of a sum of money equal to the amount he normally
would receive as wages during said period, less his net earnings. In computing the
amount of back pay due Pedersen, the customary formula of the Board set forth
in F. W. Woolworth, 90 NLRB 289, shall be followed.
The violations of the Act committed by Respondent are persuasively related to
other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future is to be anticipated from the Respondent's conduct in the past.
The preventive purposes of the Act will be thwarted unless the order is coextensive
with the threat. In order, therefore, to make more effective the interdependent
guaranties of Section 7, to prevent a recurrence of unfair labor practices, and
thereby minimize industrial strife which burdens and obstructs commerce, and thus
effectuate the policies of the Act, the Trial Examiner recommends that Respondent
be ordered to cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Association of Machinists, District Lodge No. 24, AFL-CIO, is
a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Lavadure,
Pedersen, and Ernest H. Pettit because each of them gave testimony in a proceeding
before the Board, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (4) of the Act.
3. By discriminating in regards to the hire and tenure of employment of Lavadure,
Pedersen, and Ernest H. Pettit because of their membership in, and activities on
behalf of, the Union, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discharge, lay off, or otherwise refuse employment to any of
our employees because they have given testimony in a National Labor Relations
Board proceeding.
WE WILL NOT discourage membership in International Association of Ma-
chinists, District Local No. 24, AFL-CIO, or any other labor organization of
our employees, by discriminating in any manner with regard to their hire and
tenure of employment, or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,' to form labor organizations, to
join or assist the above-named or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in con-
1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certed activities for the purposes of collective bargaining or other mutual aid or
protection , of to refrain from any and all such activities except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section 8 (a) (3) of
the Act.
WE WILL offer Hans Pedersen immediate , unconditional reinstatement to his
former or substantially equivalent position.
WE WILL make whole Robert Lavadure , Hans Pedersen , and Ernest H. Pettit
for any loss of pay suffered them by reason of the discrimination practiced against
them , in accordance with the recommendations of the Intermediate Report, and
Recommended Order.
All our employees are free to become , remain , or refrain from becoming members
of the above-named Union or any other labor organization except to the extent that
this right may be affected by an agreement in conformity with Section 8 (a) (3) of
the amended Act.
E. V. PRENTICE MACHINE WORKS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced, or covered by any other material.
Local 229 , United Textile Workers of America , AFL-CIO [J. Rad-
ley Metzger Co., Inc. ] and Local 485, International Union of
Electrical , Radio and Machine Workers , AFL-CIO. Case No.
2-CB-203,6'. 'June 30,1958
DECISION AND ORDER
On January 23, 1958, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report. The Charging Union filed
exceptions to the Intermediate Report seeking an expanded remedy.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the following additions and modifications :
Although it had been served with the charge, the complaint, and
notice of hearing, Respondent neither filed an answer nor entered an
appearance until the General Counsel, approximately 21/2 months
after issuance of the complaint, filed a motion for judgment on the
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 Leedom and Members Bean and Jenkins].
120 NLRB No. 218.