Textile Machine Works And United Steelworkers Of America, C. I. O., 784 (1946)
In the Matter of TEXTILE MACHINE WORKS and UNITED STEELWORKERS OF AMERICA, C. I. O.
Case No. 4-C-1474.-Decided July 23, 1946 Mr. John H. Garver, of Philadelphia, Pa., for the Board.
Messrs. Joseph S. Kleinbard and Robert John Brecker, of Philadelphia, Pa., for the respondent.
Mr. Harry Boyer, of Reading, Pa., for the Union.
Miss Helen Hart, of counsel to the Board.
DECISION AND ORDER On March 5, 1946, Trial Examiner T. B. Smoot issued his Intermediate Report in the above-entitled proceedings, 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 Intermediate Report attached hereto. Thereafter, on April 12, 1946, the respondent filed exceptions to the Intermediate Report, and a brief in support of its exceptions. The Board. has considered the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.
Upon request of the respondent and pursuant to notice, a hearing was held before the Board in Washington, D. C., on June 11, 1946, for the purpose of oral argument. The respondent and the Union were represented by counsel and participated in the argument.
The Board has considered the Intermediate Report, the exceptions and briefs filed by the respondent, and the entire record in the case, and hereby adopts the findings of fact, but not the conclusions of law, of the Trial Examiner, except insofar as they are inconsistent with our findings hereinafter set forth; and sustains the exceptions to the extent indicated below.
The Trial Examiner made the subsidiary finding that statements made in direct violation of Section 8 (1) of the Act occurred in only one instance. In January 1945, when the Union was attempting to expand its organization to include the machine shop, the Trial Exam 784 785 iner found that Assistant Foreman Kantner, while setting up Harry Snyder's work, made certain derogatory remarks about the Union, including the statement that 'anyone who joins the Union is a damn fool.' This incident involved an isolated and unauthorized statement of a minor supervisory employee who had personal reasons for his animosity toward unions. In view of the absence of evidence showing that the respondent harbored general hostility toward the Union and our subsequent finding that the discharge of Harry Snyder was not motivated by anti-union bias, we consider this statement only as an expression of personal opinion.' Therefore, we are of the opinion that this statement alone does not warrant a finding that the respondent has violated Section 8 (1) of the Act.2 2. The Trial Examiner found that the respondent discriminatorily discharged Harry Snyder on February 8, 1945, because of his activities on behalf of the Union. The respondent contends, however, that Snyder, an employee with an unsatisfactory work record, was discharged for violation of the Company's no-smoking rule. We cannot agree with some of the subsidiary findings upon which the Trial Examiner's conclusion is based, nor with his ultimate conclusion that Snyder was discharged for union activity.
In referring to the discussion of Snyder's employment record by Superintendent Kaul and his assistants a few days prior to Snyder's discharge, the Trial Examiner states that the respondent did not attempt to explain why the discussion of Snyder occurred at this time.
He asserts that no explanation was given by the respondent as to why, with over 2,000 employees in its machine shop, 1 employee, who at the time had committed no overt act, aside from his union activity, was singled out for discussion of his work record and rule violations for the purpose of deciding whether his employment should be terminated.
From this the Trial Examiner infers that Snyder's union activity was responsible for his being thus singled out, and that his hold on his job was precarious from that date. But the uncontradicted testimony of Kaul is that the work records of all employees were discussed practically daily after 5 o'clock because these records were submitted to his office at this time, and that, on this particular occasion, general rule violations were discussed and Snyder's name was brought up. Thus, it does not appear that Snyder was inexplicably singled out for dis1 See Matter of Gulf States Utilities Company, 2 The Trial Examiner also found that Foreman Gross, who met Snyder at the Lone Star Athletic Club after the Union's meeting, told employees of the respondent that Snyder was an 'agitator.' The record, however, establishes the fact that Gross made the statement to Mr. Lewis, a Board Agent, telling him that he was not surprised at seeing Snyder at the union meeting because Snyder was always an 'agitator.' There was no testimony to show that Gross made this remark about Snyder to any employees of the respondent.
Accordingly, we find that Foreman Gross did not tell employees that Snyder was an 'agitator.'
cussion at this particular meeting, but rather that he was logically the subject of conversation due to his infraction of factory rules on several occasions. The Trial Examiner's finding to the contrary, and the inference he draws therefrom, is not supported by the record.
The Trial Examiner found, in connection with the widespread violation of the no-smoking rule, that supervisors and Army and Navy personnel could smoke anywhere, at any time, in the plant. The implication is that this group were permitted to smoke and the Trial Examiner states that such a policy could not but reduce in the employees' minds the necessity of the no-smoking rule and thus lead to its open violation. This finding of the Trial Examiner that supervisors and Army and Navy personnel could smoke anywhere, at any time, is apparently based on the General Remarks Section which appears at the end of the regular inspection report of the respondent's insurance company. The report is dated May 1943 and reads:
Smoking during working hours is not permitted in the machine shop areas. Smoking on the part of those in charge, as well as by the representatives of the U. S. Army or Navy, should not be practiced during operating hours, thus setting the proper example to other employees.
At the hearing, Assistant Superintendent Kline was asked if smoking was being engaged in by foremen, assistant foremen, or any of the supervisory personnel in the machine shop. Kline stated that it occurred 'only during that period before the war or at the beginning of the war when smoking was permitted during overtime periods.' Kline's attention was also directed to that portion of the insurance company's report set forth above. Kline testified that Superintendent Kaul had warned some of the Army and Navy inspectors that 'it was a rule at Textile not to smoke during working time on the premises,' and that steps were taken to bring about discontinuance of the practice. He further stated that the rule was and still is strictly enforced as far as he knew. This testimony was unrefuted.3 On this state of the record we cannot conclude that the Trial Examiner was justified in finding that the no-smoking rule did not apply to supervisors or to Army and Navy personnel, and drawing an inference therefrom.
The finding of the Trial Examiner that 'the record fails to show that Snyder was warned in the 4 years of his last employment with respondent that he was unsatisfactory in any manner' is not borne out by the record.4 The record is replete with warnings. The Trial 3 Charles Kilpatrick, another employee of the respondent and a Board witness, testified that he had never seen any foremen or assistant foremen smoking during working hours.
* It is noted that, in a footnote following this statement, the Trial Examiner states that Assistant Superintendent Smith did testify that he had 'cautioned' Snyder about not expending enough effort on his work. In view of this footnote, it appears that when the Trial Examiner refers to the dearth of warnings given Snyder during his last employment,
Examiner himself refers to the testimony of Assistant Superintendents Smith and Kline that they had 'cautioned' Snyder about smoking. In a footnote to the Intermediate Report, he also sets forth Foreman Behney's testimony that on one occasion he had warned Snyder and other employees in a group to 'cut out smoking' and that on another occasion he had warned Snyder alone. Snyder, himself, admitted that he was cautioned by Foreman Behney and Assistant Superintendent Kline; he failed to recall that Smith had spoken to him about smoking but he did not deny that he may have. Behney testified that about 6 months before Snyder's discharge he had 'cautioned [Snyder] about smoking and he [Snyder] realized it was a violation and what the penalty might be.' Behney further testified that a month before Snyder's discharge, he had cautioned Snyder again about smoking and about 'a slight violation in certain things.' Kline testified that he had reminded Snyder about factory rules regarding smoking approximately 6 months prior to Snyder's discharge and that he told Snyder 'that this held for him or any other employee. If we caught any one smoking during working hours in the plant they were subject to immediate dismissal.' Assistant Superintendent Smith testified that he had cautioned Snyder '3 times at least, about his efforts that he was expending on work and also that [he] had suspicions that he was smoking.' On the last occasion, about 3 months prior to Snyder's discharge, Smith testified that he 'called his attention to the breaking of the rule of smoking,' and that breaking the rule would lead to discharge.
The record supports the respondent's contention that it was engaged in war production involving many fire hazards and that as a result it sought to enforce the no-smoking rule.6 The facts set forth above show that...
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