Ryan Car Company And Charles M. Bates, Trustee In Bankruptcy, Successor To Ryan Car Company And Felix Michalowski, Floyd Jordan, Homer L. Burke, Gail Edwards, Steve Brooks, John Kabat, Theodore Kabat, John Frakes, James Brienzo, Edwin Murphy, And John F. Blackford, 139 (1940)

Docket Number:C-1028
Party Name:161


STEVE BROOKS, JOHN KABAT, THEODORE KABAT, JOHN FRAKES, JAMES BRIENZO, EDWIN MURPHY, AND JOHN F. BLACKFORD Case No. C-1028.-Decided March 5, 1940 Freight Cars, Underframes, and Fabricated Freight-Car Parts Manufacturing Industry-Interference, Restraint, and Coercion: anti-union statements; warning not to discuss unions-Employer: respondent in bankruptcy; trustee in bank-.ruptcy not operating business-Procedure: record reopened to make trustee in bankruptcy party to the proceeding where respondent filed petition in bankruptcy and trustee appointed after hearing while case pending before Board; waiver of hearing by all parties, decision issued on record as made-Strike: involvedDiscrimination: discharges because of participation in strike: employees regarded as participants in strike included in; discharge of one employee because of coinctdence of presence at time of his son's dismissal for having participated in strike;

discharges to discourage concerted action by employees; allegations of sustained as to eight employees and dismissed as to two employees-Back Pay: awarded to date of cessation of operation of respondent's business.

Mr. Robert R. Rissman, for the Board.

Mr. William M. Ryan, Jr., of Highland Park, Ill., for the respondent.

Mr. David Findling, of counsel to the Board.

DECISION AND ORDER STATEMENT OF THE CASE Upon a fourth amended charge duly filed by Felix Michalowski,

Floyd Jordan, Homer L. Burke, Gail Edwards, Steve Brooks, John Kabat, Theodore Kabat, John Frakes, James Brienzo, Edwin Murphy, and John F. Blackford, by J. F. Blackford, authorized agent, herein called the employees, the National Labor Relations Board, herein called the Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois) issued its complaint dated August 2, 1938, against The Ryan Car Company,1 Chicago, Illinois, herein called the respondent, i Erroneously named as 'Ryan Car Company' in the complaint, which was amended at the hearing.

alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing thereon, were duly served upon the respondent and J. F. Blackford.

With respect to the unfair labor practices the complaint alleged in substance (1) that the respondent, on or about December 20, 1937, locked out and discharged certain named employees 2 and failed and refused to reinstate said employees, because they participated in a strike and otherwise engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection; (2) that the respondent, from on or about December 15, 1937, down to and including the date of the filing of the complaint herein, advised and warned its employees to refrain from joining any labor organization, and threatened its employees with discharge if they joined any labor organization or participated in concerted activities in their own behalf; and (3) that the respondent, by these acts and other acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On August 9, 1938, the respondent filed its answer to the complaint admitting the allegations of the complaint with respect to the nature of its business but denying the averments of unfair labor practices.

Pursuant to notice, a hearing was held at Chicago, Illinois, on August 11 and 12, 1938, before Peter F. Ward, the Trial Examiner duly designated by the Board. The Board, represented by counsel, and the respondent, represented by its authorized representative, participated in the hearing. Full opportunity to be heard, to examine and crossexamine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the close of the Board's case, the Trial Examiner granted the motion of counsel for the Board to dismiss the allegations of the complaint as to James Brienzo who was alleged in the complaint to have been discriminated against, but who did not appear or testify at the hearing. The Trial Examiner also granted the motion of counsel for the Board to conform the pleadings to the proof. During the course of the hearing, the Trial Examiner made various other rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed.

On September 8, 1938, the respondent filed a petition in bankruptcy under Section 77 (b) of the National Bankruptcy Act, and, on 2 1. e., all of the employees, named above, who filed the fourth amended charge.

October 12, 1938, Charles M. Bates was duly appointed trustee in bankruptcy in said proceedings.3 On October 19, 1938, the Trial Examiner issued his Intermediate Report, which was thereafter filed with the Board, and copies of which were duly served upon the respondent and the employees. In his Intermediate Report the Trial Examiner found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist from the aforesaid unfair labor practices, reinstate with back pay the employees found by him to have been discriminatorily discharged,4 and take certain other affirmative action necessary to remedy the situation brought about by the unfair labor practices found. On November 19, 1938, Floyd Jordan, who the Trial Examiner found had not been discriminated against, filed exceptions to the Intermediate Report, which exceptions the Board has considered and, for the reasons stated below,5 finds to be without merit; no exceptions were filed by the respondent. None of the parties requested permission to file briefs or argue orally before the Board.

On April 6, 1939, the Board, acting pursuant to Article II, Section 36, of National Labor Relations Board Rules and RegulationsSeries 1, as amended, ordered that the record in the case be reopened for the purpose of making the trustee in bankruptcy a party to the proceeding, that a further hearing be held for this purpose, and that the proceeding be remanded to the Regional Director for the Thirteenth Region for the purpose of conducting such further hearing;

and authorized the Regional Director to accept a Supplement to the Fourth Amended Charge, to issue a Supplement to Complaint naming the trustee in bankruptcy a party to the proceeding, and to issue notice of such further hearing. Copies of said Order and Authorization were duly served upon the respondent and the employees.

Pursuant to the foregoing Order and Authorization, a Supplement to the Fourth Amended Charge was thereafter filed with the Regional Director by the employees, by J. F. Blackford, duly authorized agent, and on April 24, 1939, the Board by the Regional Director, issued a Supplement to Complaint. Copies of the Supplement to Complaint, accompanied by notice of hearing thereon, were duly served upon the respondent, the trustee in bankruptcy, and J. F. Blackford. On April 25, 1939, the respondent; the trustee in bankruptcy, successor 8 These facts are embodied in a stipulation dated April 25, 1939 (, infra).

The bankruptcy proceedings, which are entitled 'In the Matter of Ryan Car Company, a corporation, Debtor, 69310,' are pending before Honorable James H. Wilkerson, United States District Judge, in the United States District Court for the Northern District of Illinois, Eastern Division.

* I. e., all of the employees named in the complaint with the exception of James Brienzo and Floyd Jordan.

s See Section II A, 2, infra.

to Ryan Car Company; the employees; and the attorney for the Board stipulated and agreed 6 (1) that the trustee in bankruptcy was the successor to the respondent and was in possession of its assets, but was not operating the business theretofore operated by the respondent; and (2) that the respondent and the employees waived their right to further hearing and the trustee in bankruptcy his right to a hearing under Section 10 (c) of the Act. In accordance with the provisions of the stipulation, the stipulation, the order of the Board dated April 6, 1939, the Supplement to Complaint, the Supplement to the Fourth Amended Charge, notice of hearing, and National Labor Relations Board Rules and Regulations-Series 1, as amended, issued in the proceeding and served upon the parties, together with the affidavits of service thereof, were introduced in the record in the proceeding by filing with the Chief Trial Examiner in Washington,

D. C., on May 25, 1939.

Upon the entire record in the case, the Board makes the following:

FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Ryan Car Company, an Illinois corporation, was, at the time of the hearing, engaged in the manufacture and sale of freight cars, underframes, and fabricated freight-car parts. It maintained and operated a general office, a sales office, and a plant, all separately located, in Chicago, Illinois. This case concerns only the plant, which is located in a section of Chicago called Hegewisch, and at which the respondent employed, during normal operations, approximately 350 persons.7 All of the respondent's business was done on contract and special order from its customers, principally railroads. During the period from July 1, 1937, to June 30, 1938, the respondent manufactured and shipped from its Hegewisch plant, 550 freight cars valued at $1,990,000, 2,853 underframes valued at $1,450,000, and 2,100 tons of fabricated freight-car parts valued at $191,000. All of the freight...

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