NLRB v. AR Gieringer Tool Corp., 13874.

• Decision Date: 08 March 1963
• Docket Number: No. 13874.,13874.
• Citation: 314 F.2d 359
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. A. R. GIERINGER TOOL CORP., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

314 F.2d 359 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. A. R. GIERINGER TOOL CORP., Respondent.

No. 13874.

United States Court of Appeals Seventh Circuit.

March 8, 1963.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Gary Green, Attorney, National Labor Relations Board, Washington, D. C., Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Morton Namrow, Attorney, National Labor Relations Board, for petitioner.

Victor M. Harding, Whyte, Hirschboeck, Minahan, Harding & Harland, Milwaukee, Wis., for respondent.

Before DUFFY, KNOCH and KILEY, Circuit Judges.

DUFFY, Circuit Judge.

This case is here upon petition of the National Labor Relations Board (Board) seeking enforcement of its order dated December 13, 1961, against respondent A. R. Gieringer Tool Corp. The Board's decision and order and a supplemental decision issued July 18, 1962, are reported at 134 N.L.R.B. No. 124 and 137 N.L.R.B. No. 152, respectively.

Respondent is located at Milwaukee, Wisconsin. It manufactures, sells and distributes dies, jigs and fixtures. It is a comparatively small operation. From the period August 7, 1960 to May 7, 1961, the number of employees fluctuated from a high of nineteen to a low of eleven.

This case involves two separate proceedings brought by the Board. The first was tried on December 6, 1960 which was subsequent in time to the subject matter of both complaints. The evidence offered by the Board in the two proceedings was substantially the same. The witnesses were almost identical. In the second case, the General Counsel contended that employees David Fletcher, Gary Hetzer and Irving Groves were discharged for union activities. All three had testified at the first hearing. However, the discharges of Fletcher, Hetzer and Groves were not an issue in the first hearing.

The trial examiner, in the first case, found unfair labor practices and recommended an order directing the respondent to cease and desist. He found, however, there had been no discriminatory discharge as to employee Ballsieper, and recommended dismissal of the Section 8 (a) (3) charges. Respondent gave the Board a notice of its willingness to comply.

The second case was heard by a different trial examiner. He also found there were no discriminatory discharges and recommended a dismissal of the complaint.

The Board did not follow the findings and recommendations of the trial examiners. It found that employees Fletcher, Hetzer and Groves were discharged on account of union activities and, therefore, respondent violated Section 8(a) (3) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (3) and (1).

DAVID FLETCHER.

We consider first the discharge of David Fletcher. He was one of five apprentices. He was second in seniority but had the lowest rating of the five as to skill and workmanship. Until about six months before his discharge, he had been a satisfactory employee. Thereafter, his attitude changed. He objected to doing machine work and created a disturbance in the shop in urging other apprentices not to do machine work. He would not take advice from journeymen machine workers who were there to instruct him. On an occasion about four weeks prior to his discharge, he called an experienced tool maker employee a vile name and threatened him with physical violence. He showed a marked indifference to his work and to mistakes which were called to his attention.

After Fletcher's discharge, respondent commenced a formal proceeding before the Wisconsin Industrial Commission to cancel Fletcher's apprenticeship indenture. A full hearing was had before the entire Industrial Commission. Fletcher was represented by the union's attorney.

The Wisconsin Industrial Commission made findings which, although not binding on us, are persuasive of the validity of the findings of the trial examiner herein. A few extracts from the findings of the Wisconsin Industrial Commission are: "That on October 6, 1960, the apprentice, David Fletcher, was dismissed because there was insufficient work and because of dissatisfaction with his work. * * * That from a period commencing in the month of April, 1960, up to the time of his dismissal the apprentice, David Fletcher, had not evidenced the degree of diligence and faithful performances of his work as could rightfully be expected of an apprentice. * * * That David Fletcher objected to doing machine work because he believed that he had done sufficient machine work under his indenture. * * * That on several occasions the apprentice had made errors in doing his work but his attitude when these errors were called to his attention was one of `So what if I made an error'. * * * It appears that his conduct instead of improving as these different matters were called to his attention tended to deteriorate. * * *"

We think the trial examiner herein was entirely warranted in finding "* * * And long before union organization began, Fletcher began displaying an attitude of indifference towards his work, reported for work late, and declined to work overtime when requested. * * *"

The trial examiner obviously believed the testimony of Donald Mohr, Production Manager, who testified that Fletcher's layoff was due in part to economic reasons, but that it was his "insolence to supervision" that was the "straw that broke the camel's back."

We can find no justification or support in this record for the Board's finding that Fletcher was discharged because of his union membership and activities.

GARY HETZER.

In November 1960, respondent reached its lowest rate of production. Out of a total work force of sixteen, there were four apprentices. It was necessary to reduce the work force, so respondent decided to reduce the number of apprentices to two. The company consulted with the Wisconsin Industrial Commission on how to make the selection, as the Industrial Commission has broad power pertaining to the handling of apprentices. The Commission advised laying off the two apprentices with the least seniority. This...