NLRB v. MAHON COMPANY, 13625.

• Decision Date: 17 July 1959
• Docket Number: No. 13625.,13625.
• Citation: 269 F.2d 44
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. R. C. MAHON COMPANY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

269 F.2d 44 (1959)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. R. C. MAHON COMPANY, Respondent.

No. 13625.

United States Court of Appeals Sixth Circuit.

July 17, 1959.

Owsley Vose, Washington, D. C., (Jerome D. Fenton, Thomas J. McDermott, Marcell Mallet-Prevost and William J. Avrutis, Washington, D. C., on the brief), for petitioner.

Charles Wright III, Detroit, Mich. (Beaumont, Smith & Harris, Detroit, Mich., on the brief), for respondent.

Before ALLEN, McALLISTER and MILLER, Circuit Judges.

ALLEN, Circuit Judge.

The National Labor Relations Board found that respondent had discriminated in regard to the hire and tenure of employment of Arthur J. Bussel and Edmund Warznie on December 3, 1954, and Claude V. Peters on December 4, 1954. It was ordered that respondent immediately reinstate the named employees and make them whole for loss of pay. Also, the Board found that respondent closed its plant protection department on December 31, 1954, and terminated the employment of all its plant protection employees on that date in violation of Section 8(a) (3) of the Act, 29 U.S.C.A. § 158(a) (3), and ordered respondent to reopen its plant protection department and offer to all employees discharged on December 31, 1954, immediate and full reinstatement with back pay.

This order was a two-to-one decision, one member of the Board dissenting. Also, the order rejected the recommendation of the trial examiner that the complaint be dismissed in its entirety.

The case arises out of the following facts, in general not disputed: Respondent, a Michigan corporation operating partly in Detroit and engaged in interstate commerce, was a manufacturer, erector, and fabricator of steel and metal products, at the plant involved herein at which respondent employed around 2,000 people. During 1953 it had plant guards numbering from fifteen to eighteen, one Rudolph Franson being the Chief. Harry Lowther, secretary-treasurer of the company, was directly responsible for all personnel decisions and plant protection. His assistant was Joseph P. McNally.

In 1954 respondent's business substantially declined. The booked orders for 1953 totaled some $44,000,000 and for 1954 less than $30,000,000. The booked orders for the first quarter of 1953 were approximately $14,000,000, while for the third quarter of 1954 they totaled some $4,000,000. The trial examiner found that as a result of this financial difficulty a curtailment in general expenses of operation was made by respondent throughout the entire plant. It discontinued certain consultant engineers, substantially cutting down its selling and administrative expenses, thereby reducing general manufacturing, production and erection overhead expenses 30%. Through elimination of clerical personnel the payroll was cut more than $25,000 in 1954. At the request of R. C. Mahon, president of the company, figures on the cost of operating the plant protection department were submitted to Mahon, who talked with Lowther in 1953 about the possibility of respondent's contracting for plant protection instead of employing plant protection guards.

Lowther and Mahon were each ill for most of the latter part of 1954. Both men died in the spring of 1956 prior to the hearing in this case. During 1954 George McKeough, personnel manager, was also ill and absent for considerable periods. During October, 1954, the structural steel plant was taken out of operation because structural steel fabrication cost from $20 to $50 a ton more than it was selling for at the time. The structural steel plant was closed for some six weeks.

Respondent had dealt with unions on a large scale since 1945, its production employes being represented by the Steel Workers of America. In the associations of steel operators to which respondent belonged it contracted with the Bridge, Structural and Ornamental Iron Workers' union, the Sheet Metal Workers' union and many types of AFL construction workers. It had no record of union hostility.

Late in 1954 Arthur Bussel, plant guard, gave a few of the guards some union application cards. In 1949 the guards had been represented by the Amalgamated Plant Guard Workers' union, but after two abortive meetings the movement died out. Bussel's passing the cards was the only union activity among the guards during 1954. The incident was reported to Chief Franson, who was told by McNally to transfer Bussel from the night shift to the day shift. This transaction was authorized by Lowther in order to ascertain whether Bussel was distributing union cards or soliciting on respondent's time. On December 3 Bussel and Warznie received termination slips. Franson testified that McNally ordered him to lay off Warznie "so that it would not look so obvious" and to lay off Peters because Peters had said the union was the only way they could get security. McNally categorically denies making these two statements. Wherever McNally's testimony and that of Franson are in dispute the trial examiner believes McNally. The reason set forth on the termination slips was "reducing force". An additional notation made by Franson on his own authority was that the employees would not be rehired...