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A.O. Smith Corp. v. National Labor Relations Board

March 18, 1965


Author: Hastings

Before HASTINGS, Chief Judge, KNOCH and CASTLE, Circuit Judges.

HASTINGS, Ch. J.: These cases are before us on the petition of A. O. Smith Corporation (Company) to review and set aside an order of the National Labor Relations Board issued against Company on July 21, 1961, pursuant to Section 10(f) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 151, et seq., the Board's cross-petition for enforcement of that order and the petition of the Board for enforcement of its order against International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local Union No. 575 (Boilermakers), pursuant to Section 10(e) of the Act.

These cases were consolidated for hearing before the trial examiner and for briefing and argument before us.

The Board adopted the trial examiner's intermediate report and recommended order. Its decision and order are reported at 132 NLRB 339 (1961) and its supplemental decision and order are reported at 137 NLRB 361 (1962).

The transcript of testimony in the hearing before the trial examiner exceeds 5600 pages. Because of the voluminous record before us, we shall limit our summary to the relevant parts thereof.

Company's Granite City, Illinois plant, which produces automobile frames, is the site of the alleged unfair labor practices. This plant began operation in June, 1954.

Several labor organizations conducted organizational campaigns among employees and representation petitions were filed with the Board. The Board entered an order on January 13, 1955 directing that an election be held. The names of five labor organizations appeared on the ballot. On February 14, 1955, Boilermakers was certified by the Board as the exclusive bargaining representative for production and maintenance employees, excluding machine shop employees who were represented by District 9 of the International Association of Machinists, AFL-CIO (Machinists).

The organizational campaigns of these five labor organizations apparently divided the employees into factions and caused work stoppages and lack of discipline within the plant prior to certification. After certification these factions continued the struggle for control of Boilermakers.

Throughout Company's first two years, it operated in a "background of mutiny." Union officials of Boilermakers, without obtaining permission to leave their work stations, wandered about the plant. There was an average of one work stoppage or wildcat strike every twenty-eight days. During the latter half of this period the collective bargaining contract contained a no-strike clause.

In June, 1956, Machinists went on strike and set up a picket line. Boilermakers, whose contract contained a no-strike clause, refused to cross Machinists' picket line and joined Machinists in picketing. This resulted in a shutdown of the plant for one month.

In response to an appeal from Company, International Boilermakers placed Local Boilermakers in trusteeship and appointed Fred George as trustee. George ordered Local Boilermakers to return to work. Fifty-nine members, out of more than 1000, obeyed this order by crossing the picket line and returning to work. These members were confined in the plant for nine days by mass picketing.

Company obtained a court injunction against mass picketing and acts of violence at the plant gates.The injunction was violated, nineteen persons were held to be in contempt of court and six of these nineteen were given jail sentences. Company discharged these nineteen members. Following negotiations a settlement was reached a part of which provided that Company would reinstate the discharged members. Plant operations resumed on July 16, 1956.

The fifty-nine men who crossed the picket line and entered the plant were designated by the trial examiner as "insiders" and the others were called "outsiders."

After Boilermakers retunrned to work International removed George and appointed William Costello as trustee.

Boilermakers officials, at the time the employees returned to work, were insiders. Costello called for an election which resulted in the replacement of these officials by, among others, Willard Herzing, as president and Bill Warfield, as vice-president. Herzing, Warfield and two other newly elected officials were among the nineteen outsiders held in contempt of court for violation of the injunction against mass picketing. They were discharged by Company and later rehired as part of the agreement of Boilermakers to return to work.

Subsequent to the election the insiders were harassed. Cherry bombs were exploded behind their work stations, their lockers were set on fire, their tool boxes filled with grease, oil, garbage and other things and their tool handles painted. Company asked Boilermakers officials to cooperate in stopping these incidents and instructed its supervisors to watch for such occurrences.

In August, 1956, Costello proposed to Alfred E. Treen, manager of industrial relations at the plant, that Herzing and Warfield be made available full time to help Boilermakers get organized to handle grievances and to prevent work stoppages.Company released both men from their production work for these purposes and agreed to pay them their existing hourly wage for no more than eight hours a day.

In June, 1957, while Company and Boilermakers were negotiating wages, labor unrest increased and walk-outs and slow-downs were frequent. Company, in an attempt to maintain discipline, suspended several employees. By June 26, 1957, 300 to 500 employees had been suspended and told to stay out of the plant. Boilermakers officials urged these employees to disregard Company's order and a number of suspended employees forced their way into the plant.

As a result, Company shut down the plant and posted notices that the plant would remain closed until "order and reasonable discipline * * * were restored." Company announced it was considering closing the plant and moving operations to Milwaukee.

An agreement was reached on the conditions which Company would require in order to reopen plant. This agreement was in writing and included a code of employee behavior called "Points of Good Order." These points were a revision of previous points and included such items as damaging and taking another's property, fighting on premises, refusing to work and damaging company property. Upon ratification of this agreement by the members of Boilermakers the plant was reopened on July 10, 1957.

The above events provide some of the background for the following occurrences which constitute the alleged unfair labor practices at issue in this case.

Charles W. Harp was sent by Company to the plant in June, 1956 as chief coordinating engineer for the purpose, inter alia, of making a survey and report on how to better the maintenance organization. Among the conclusions in his report were that the maintenance department had too many employees and was oversupervised.

In July, 1957, Company implemented Harp's recommendation by shutting down the automatic assembly line. The trial examiner found that Company was originally going to lay off eleven workers, according to seniority, but since Herzing complained that he wanted William Hogan and Elroy Paschedag laid off, (they were purportedly his enemies and higher on the seniority list) Company laid off fifteen workers, including Hogan and Paschedag. The trial examiner stated that these employees were rehired in the production department, except Hogan, Paschedag and Thomas Willmore, and that Herzing persuaded Company not to rehire these employees. As a result of his discharge, Hogan filed a charge against Company with the Board on November 20, 1957. This charge was dismissed by the Regional Director on January 20, 1958 and the dismissal was sustained by the General Counsel on May 14, 1958. These acts, among others set out infra., are relied upon by the trial examiner and Board to support the finding of the trial examiner that Company gave illegal assistance to Boilermakers.

In November, 1957, Hogan organized and used his home as headquarters for a group referred to as the dissident Boilermakers. The dissidents were opposed to Herzing and their purpose was to replace him and the other officers of Boilermakers.

On December 16, 1957, twenty to twenty-five employees met at Hogan's home. They discussed the discharge of Albert Rowden (related infra.) and heard a report from Hogan, who had spoken with Stanley Schuchat, a labor law attorney, concerning how to get rid of Herzing. About December 20, 1957, Hogan and three other dissidents met with Schuchat who suggested a deauthorization election under Section 9(e)(1) of the Act, 29 U.S.C.A. § 159 (e)(1).

The deauthorization campaign began on January 9, 1958 and continued for about ten days. Deauthorization cards were made available at Hogan's home, a local tavern and a vegetable stand near the plant. Herzing and other Boilermakers officials observed these three sites and learned the identity of employees who visited them. It was estimated that 300 to 800 employees signed deauthorization cards.

On January 11, 1958, Herzing began a campaign to have the deauthorization cards revoked by their signers. Herzing, with Treen's permission, posted campaign literature on plant bulletin boards and distributed handbills at the north door of the plant denouncing the deauthorization campaign. Herzing prepared a mimeographed letter which was sent to all employees. He obtained from Treen the names and addresses of the employees on address slips prepared on IBM cards at Company's home office in Milwaukee. Company permitted employees to attend two union meetings during working time, without pay, where the deauthorization movement was discussed. There was testimony and the trial examiner found that some employees who had signed deauthorization cards were threatened by Boilermakers officials with loss of their jobs if they did not sign revocation cards.

On December 13, 1957, the financial secretary of Boilermakers, Raymond Ropac and a clerical employee, Delores Lane were in the plant cafeteria collecting and adjusting members' dues. Albert Rowden, a union steward, received a complaint from an employee in his shop that Ropac had demanded dues payments in excess of the amount the employee believed payable.Rowden went to the cafeteria and confronted Ropac with this complaint. Lane and Ropac, in statements recorded and witnessed by personnel supervisor Anthony Trelc, stated that Rowden used profane language in speaking to Ropac, slapped Ropac's hand and stated, "Don't get smart with me or I'll slap you in the puss." Rowden testified at the hearing before the trial examiner that Ropac extended his arm across the table and shook his finger within two or three inches of Rowden's nose. Rowden stated he said, "You get your finger out of my face and stop talking about that or I will slap you in the puss." He denied using profanity or striking Ropac.

Herzing informed Treen that Rowden had struck Ropac.Treen directed Trelc to investigate the matter. After investigating, Trelc reported his findings and gave his written reports to Elmer Betz, Rowden's department head. Betz conferred with Rowden's immediate foreman, Mike Zickovich, and after considering the situation for a couple of days they decided to discharge Rowden. The discharge, according to Company, was for using profane and abusive language and threatening an employee in violation of the Points of Good Order.

As discussed supra, in July, 1957, the number of employees and supervisors in the maintenance department was reduced. As a result of this reduction, William Randolph, who had been a foreman in the department, was relieved of his supervisory status and put in a position as a production employee on November 4, 1957.

On January 16, 1958, Company and Boilermakers signed an agreement which provided that foremen would no longer receive seniority credit for time worked as supervisors. This agreement was made retroactive to February 7, 1957 and reduced Randolph's seniority with the result that he was laid off on January 17, 1958. Randolph testified before the trial examiner that he thought he had been demoted and discharged due to "union pressure." The trial ...

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