General Industries Co.

National Labor Relations Board - Board Decisions

Apr 30, 1936

1 N.L.R.B. 678 (N.L.R.B. 1936)

In the Matter of GENERAL INDUSTRIES COMPANY, A CORPORATION ancc
HOBART FLENNER , ARTHUR BARBKNECHT , WILLIAM COX AND JOHN
ALBERTS
Case No. C-30-Decided April 30, 1936
Phonograph and Parts Industry-Inte•fercnce, Restraint or Coercion: sur-
veillance of organizational activities and meetings-D#scrint-tnation: discharge-
Reinstatement Ordered-Back Pay: awarded.
Mr. Harry L. Lodislz for the Board.
Mr. King Fauver, of Elyria, Ohio, for respondent.
Mr. Isaiah S. Dorfman, of counsel to the Board.
DECISION
STATEMENT OF CASE
On October 30, 1935, Hobart Flenner, Arthur Barbknecht, William
Cox and John Alberts, hereinafter called the discharged men, filed
with the Regional Director for the Eighth Region a charge that the
General Industries Co., of Elyria, Ohio, had engaged in and was
engaging in unfair labor practices contrary to the National Labor
Relations Act, approved July 5, 1935, hereinafter called the Act.
On December 30, 1935, the National Labor Relations Board, by its
agent, the said Regional Director, issued its complaint against the
General Industries Co., the respondent herein, alleging that the re-'
spondent had engaged and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8, subdivisions (1)
and (3), and Section 2, subdivisions (6) and (7) of the Act. In
respect to the unfair labor practices, the complaint as amended at the
hearing on January 13, 1936, alleged, in substance, that the respond-
ent on October 16, 1935, discharged Hobart Flenner, Arthur Barb-
knecht and William Cox, and on October 17, 1935, discharged John
Alberts, all four of whom were employed by the respondent at its
plant in Elyria, Ohio, as plastic moulders, and has since that date
refused to reinstate them, for the reason that they had assisted a
labor organization known as the American Federation of Labor.
The complaint and accompanying notice of hearing were duly
served on the respondent and the discharged men. On January 6,
1936, the respondent filed a motion to dismiss the complaint on the
ground that the above metioned sections of the Act, if applied to the
678
DECISIONS AND ORDERS 679
respondent 's business , are in contravention of the 5th , 9th, and 10th
amendments to the Constitution of the United States. On the same
day the respondent filed an answer and without waiving its claim that
the Act as applied to it is unconstitutional , alleged that its manufac-
turing operations are not commerce and do not affect commerce within
the meaning of the Act; admitted that it did dismiss the discharged
men; and denied each and - every other allegation in the complaint.
On January 13th and 14th , 1936 , a hearing was held at Cleveland,
Ohio before Walter Wilbur, duly designated by the Board as Trial
Examiner. The respondent was represented by counsel and partici-
pated in the hearing . Full opportunity to be heard , to examine and
cross-examine witnesses , and to introduce evidence bearing upon the
issues was afforded to the parties. I
During the hearing the respondent moved to dismiss the complaint
for lack of jurisdiction , and on the constitutional grounds stated in its
motion to dismiss. At the conclusion of the testimony in support of
the complaint , the respondent again moved to dismiss on the ground
that the Board lacked jurisdiction , and on the further ground that the
allegations in the complaint had not been proven. The Trial Exam-
iner denied each of the motions to dismiss. The rulings are hereby
affirmed.
On January 11, 1936, the Board, acting pursuant to Article II, Sec-
tion 35, of National Labor Relations Board Rules and Regulations-
Series 1, directed that the proceeding be transferred to and continued
before it . A brief was filed on behalf of the respondent on February
15, 1936.
Upon the evidence adduced at the hearing and from the entire
record now before it , including the transcript of the hearing , all the
/p-ccumentary evidence received , and the respondent 's brief, the Board
! 1 + tikes the following :
it,
THE RESPONDENT AND THE NATURE OF ITS BUSINESS
1. The respondent, the General Industries Co., an Ohio corporation,
is both an operating and a holding company. It operates a plant in
Elyria, Ohio, for the manufacture, sale and distribution of phono-
graphs and electric motors, record changers, fishing reels, bakelite
compounds and synthetic resin products. It employs about 700 per-
sons, 120 of whom are moulders working in three shifts. It owns the
entire stock of the General Phonograph Manufacturing Company,
Putnam, Connecticut, a company which manufactures phonograph
needles, textile pins and ice picks. In turn 99% per cent of the
respondent's common stock is owned by a third company, the General
Phonograph Company of Putnam, Connecticut.
97571- 6-vol 1-44
680 NATIONAL LABOR RELATIONS BOARD
2. The manufacture of synthetic resin'products constitutes about
50 per cent of the respondent's operations. Various resins and metals
are used in the manufacturing `process; the resins being principally
bakelite, tenite, durez and plaskon, acid the metals mainly brass, cop-
per and steel:' The resins arrive at the respondent's'plant in powdered
form. 'At the plant the powder' is compressed into "pills" of various
sizes, then sent to the moulding department where the pills are pressed
into requisite shapes in steam' dies operated by moulders. The' cast-
ings thus made are transmitted 'to' other' departments of the plant for
preliminary inspection, drilling, edging, 'milling, buffing, polishing,
and final inspection. '
3. The bakelite, tenite, durez and plaskon are purchased by the
respondent, f. o. b. the sellers plant, from New Jersey, Tennessee, New
York and Ohio, respectively.' The record does not disclose where the
brass,-copper, 'steel and other metals are purchased.
For the year 1935 total purchases of the' respondent amounted to
approximately $582,418, of which 55.47 per cent was from states other
than Ohio and 46.53 per cent from Ohio. A siding of the New York
Central Railroad enters the respondent's yards and the greater part
of the respondent's purchases are delivered by means of this railroad.
4. Sales of the respondent for the year 1935 totaled approximately
$1,407,539.90 of which 34.13 per cent went to customers in Ohio, and
65.87 per cent to customers in New York, Pennsylvania, Connecti-
cut, Michigan and Illinois, by rail and truck, f. o. b. the respondent's
plant.
5. All of the aforesaid constitutes a continuous flow of trade, traffic
and commerce among the several States.
THE UNFAIR LABOR PRACTICES
6. In November 1934, Local No. 15 of the Mechanics Educational
Society of America, a labor organization, hereinafter called the
M. E. S. A. was organized among the' employees of the respondent,
including the moulders.
On March 12, 1935, after a strike vote was taken among the mem-
bers of the M. E. S. A., and upon the intervention of a Commissioner
of Conciliation of the United States Department of Labor, the re-
spondent entered into a written agreement for a period of 6 months
with the M. E. S. A. A committee consisting of 5 employees of the
plant was selected to represent the employees in their dealings with
the respondent.
For some reason, not entirely clear from the record, the M. E. S. A.
gradually ceased to function as the representative of the em-
ployees. This condition became so patent that the management,
in order to retain its contact with the employees, posted suggestion
DECISIONS AND ORDERS 681
boxes thruout the plant. The moulders especially lost interest in the
M. E. S. A.,'most of them severing their relationship with it in April
and May, 1935.' One employee 'explained that one could complain'to
the M. 'E. S. A. committee, "but it wasn't any good. They were
working for the company more than for the Union."
7. Late in September, 1935 a movement was inaugurated to organ-
ize among the' 'employees of the respondent, a' federal union to be
affiliated with the American Federation of Labor. The first open
meeting for purposes of organization was held on Sunday, October
13, 1935: John Alberts, Hobart Flenner and William Cox walked
into the meeting hall together. At that time Orlo William Marsh,
superintendent of the plant, George T. Waller, foreman in the mould-
ing department, 3rd shift, Mr. Wolf, the employment manager, and
Mr. Monroe, the paymaster, were standing on the sidewalk near the
hall and saw Alberts, Flenner and Cox enter the hall. Monroe and
Wolf each had a pad of paper in his hands and appeared to be writ-
ing. The following morning Monroe reported to Allan W. Fritsche,
the general manager of the plant, that he thought that he (Fritsche)
"would be glad to know that only 14 attended the meeting." Under
these circumstances it is impossible for us to believe, as the respond-
ent urges, that the four members of the supervisory staff merely
happened to be in front of the hall at the time of the meeting.
A number of the respondent's employees found their way to the
hall, but failed to enter. There is good reason to suppose that the
presence of the managerial array in full view of the entrance to the
hall discouraged these employees from attending the meeting. Be-
cause so few employees of the respondent attended, (estimates vary
between 6 and 14), no formal meeting was held and no formal organ-
ization attempted.
8. Three days later, on October 16th, the respondent discharged
Hobart Flenner, William Cox and Arthur Barbknecht, and on Octo-
ber 17th discharged John Alberts. Flenner, Barbknecht and Alberts,
who were employed as plastic moulders in Department 51 of the
respondent's plant, 3rd shift, were discharged allegedly for "horse-
play" during working hours. Cox, who was also employed as a plas-
tic moulder in the same department, but on the 2nd shift, was dis-
charged allegedly for inefficiency.
9. Without doubt, various pranks had been indulged in at one time
or another over a period of about two years before the discharges by
almost all of the twelve moulders employed on one floor of the 3rd
,shift, which operated from 11: 30 P. M. to 7: 30 A. M. This tended
to increase the aggregate of defective work and to retard production.
From July to October, 1935, this condition became more pronounced,
due in part to neglect of duty by a member of the supervisory staff
of the plant.
682 NATIONAL LABOR RELATIONS BOARD
10. At one point in his testimony, George T. Waller, foreman of
the 3rd shift, and who was in front of the meeting hall on October
13th, stated that the reason he singled out Flenner, Barbknecht and
Alberts for discharge was that "most of these troubles existed right
around the area where those men were working". However, it ap-
pears that while Flenner and Barbknecht worked within 15 or 20
feet of each other, Alberts was stationed three quarters of-the way to
the other end of the room.
At another point in his testimony, Waller stated that he had based
his selection of these men on the ground that about two weeks before
their discharge he saw them talking together, and he therefore sus-
pected them of plotting pranks. Subsequently, in answer to the lead-
ing question put by counsel for the respondent, "Was there trouble
after that, or not," he replied, "During the night." On cross-exami-
nation he then stated that there was "trouble" every night.
11. While all three men admitted playing pranks on other mould-
ers in retaliation for pranks played upon them, each testified that he
did not participate in any pranks during October, 1935. Waller
admitted that he did not at any time know the identity of the guilty
persons.
12. The record indicates that Barbknecht was a poor moulder, and
in addition thereto had been admonished several time.; for being under
the influence of liquor while on duty. He did not attend the meeting
of October 13th, nor was his interest in the American Federation of
Labor union called to the attention of the respondent in any other
way at that time. He asserts that the respondent was aware of his
desire to join such a union because in the summer of 1934 the gen-
eral manager and the plant superintendent were in the immediate
vicinity of the meeting hall and saw him there on two occasions when
attempts had been made to organize an American Federation of Labor
union. Without more, we do not believe that the evidence sustains
the, allegation in the complaint that he was discharged because he
assisted a labor organization. The complaint as to Arthur Barb-
knecht will therefore be dismissed.
13. The discharge of Flenner and Alberts is in a different category.
The respondent did not complain of their workmanship. They took
an active part in organizational activities, first on behalf of the
M. E. S. A. and later in an effort to establish the federal union to be
affiliated with the American Federation of Labor. Both were seen
attending the meeting of October 13th by members of the respondent's
supervisory staff, and were discharged within three and four days
thereafter respectively. We believe that the respondent has turned
to the "horseplay" and the "pranks" merely to give itself a convenient
pretext to rid itself of two workers who were zealous in their efforts
to organize its employees.
DECISIONS A\D ORDERS 683
14. William Cox was employed by the respondent as a plastic
moulder on the second shift for about 21/2 years. He had been a shop
steward for the M. E. S. A. until he severed his affiliation with it
in May, 1935. He attended a meeting of those interested in form-
ing the federal union on October 6, 1935, and subsequently, as above
related, was seen attending the meeting of October 13th. Three days
thereafter he was discharged allegedly for inefficiency. We conclude
on the basis of all the evidence before us that Cox was not one of the
better moulders employed by the respondent, but that other mould-
ers of similar ability and capacity were at the time of the hearing
still retained in the employ of the respondent; and that but for his
participation in the attempt to organize the federal union, he would
not have been discharged.
15. We find that the respondent discharged and refused to rein-
state Hobart Flenner, John Alberts and William Cox for the reason
that they assisted a labor organization, known as the American Fed-
eration of Labor, and engaged in concerted activities with other em-
ployees for the purpose of collective bargaining and other mutual aid
and protection.
16. The respondent has discriminated against Flenner, Alberts and
Cox with respect to hire and tenure of employment for the purpose
of discouraging participation in the formation of and membership
in a proposed labor organization, and by such acts, the respondent
has interfered with, restrained and coerced its employees in the exer-
cise of the rights of self-organization guaranteed in Section 7 of
the Act.
17. We find that the aforesaid acts of the respondent tend to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact the Board makes
the following conclusions of law:
1. By its discharge of Hobart Flenner, John Alberts, and William
Cox, and each of them, and by its refusal to reinstate them, and each
of them, for the reason that they and each of them assisted in an
attempt to form a labor organization, the respondent did interfere
with, restrain and coerce, and is interfering with, restraining and
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, and by said acts did engage in and is engaging
in unfair labor practices within the meaning of Section 8, subdivi-
sion (1) of the Act.
2. By its discharge of the persons aforesaid and by its refusal to
reinstate them, the respondent did discriminate and is discriminating
in regard to the hire and tenure of employment of said persons and
684 NATIONAL LABOR RELATIONS BOARD
each of them, and did thereby discourage and is thereby discouraging
the formation of and membership in a labor organization, and by all
of said acts and each of them did engage in and is engaging in unfair
labor practices, within the meaning of Section 8, subdivision (3) of
the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions
(6) and (7) of the Act.
ORDER
On the basis of the findings and conclusions of law, and pursuant
to Section 10, subdivision (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, the General Industries Co., and its officers and agents shall :
1. Cease and desist from in any manner interfering with, restrain-
ing or coercing their employees in the exercise of their rights to
self-organization, to form, join or assist labor organizations, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, as guaranteed in Section 7
of the National Labor Relations Act;
2. Cease and desist from discouraging its employees from forming
or joining any labor organization, by discrimination in regard to
hire or tenure of employment or any term or condition of employ-
ment.
3. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act;
(a) Offer to Hobart Flenner, John Alberts and William Cox
immediate and full reinstatement to the respective positions formerly
held by them, without prejudice to their seniority or other rights and
privileges previously enjoyed by them;
(b) Make whole said employees for any loss they may have suf-
fered by reason of their discharge, by the payment to each of them,
respectively, of a sum of money equal to that which each would nor-
mally have earned as wages during the period from the time he was
discharged to the date of such offer of reinstatement, computed at
the average weekly wage at the time of discharge as set forth in
Appendix A, attached hereto and made a part hereof, less the
amount which each, respectively, has earned subsequent to the time
of discharge and up to the time of said offer of reinstatement.
4. Post immediately notices to its employees in conspicuous places
in its plant stating (a) that the respondent will not discharge or in
any manner discriminate against employees for participating in the
formation of or for becoming members in a labor organization affili-
ated with the American Federation of Labor, or any other labor
DECISIONS AND ORDERS
organization; and (b) that such notices shall remain posted for a
period of at least thirty (30) consecutive days from the date of
posting.
685
APPENDIX A
Name
Average
weekly
wage 1
Wages earned
from date
discharged to
Jan 14, 1936
Hobart Flenner--------------------------------------------------------------
John Alberts ------------------------------------------------------------------
William Cox------------------------------------------------------------- ---
$19 51
17 511
18 68
$100 00
15 53
73 54
I Computed on the basis of wages received by each of the three discharged men for a period of 15 weeks
next preceding the week of their discharge