NLRB v. Ritchie Manufacturing Company

• Decision Date: 11 January 1966
• Docket Number: No. 17978.,17978.
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RITCHIE MANUFACTURING COMPANY, Respondent.

354 F.2d 90 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RITCHIE MANUFACTURING COMPANY, Respondent.

No. 17978.

United States Court of Appeals Eighth Circuit.

December 14, 1965.

As Corrected on Denial of Rehearing January 11, 1966.

COPYRIGHT MATERIAL OMITTED

Gary Green, Attorney, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, and Marcel Mallet-Prevost, Asst. General Counsel, on the brief, for petitioner.

Rex J. Ryden, of Cartwright, Druker, Ryden & Fagg, Marshalltown; Iowa, H. G. Cartwright, of Cartwright, Druker, Ryden & Fagg, Marshalltown, Iowa, for respondent.

Before VOGEL, Chief Judge, and VAN OOSTERHOUT and MEHAFFY, Circuit Judges.

VOGEL, Chief Judge.

The National Labor Relations Board (hereafter Board) seeks enforcement of an order issued on June 30, 1964, pursuant to § 10(e) of the National Labor Relations Act (hereafter Act), 29 U.S. C.A. § 151 et seq. The Board's decision and order are reported at 147 N.L.R.B. No. 123. The Board, adopting the Examiner's findings, conclusions and recommendations, held that the respondent, Ritchie Manufacturing Company, of Conrad, Iowa, a manufacturer of barnyard watering devices, was in violation of § 8(a) (1) (3) and (4) of the Act¹ in dealing with one Robert E. Feltz, a one-time employee of respondent, and in other matters. Respondent was ordered to cease and desist from the alleged unfair labor practices, to reinstate Feltz with back pay and interest and to post appropriate notices.

Feltz, an ordained Baptist minister, was initially employed by respondent on October 15, 1962. At that time Feltz was interviewed by respondent's vice president, Mr. C. D. Wilson, Jr. Wilson, Jr., told Feltz that an employee must work one year before being given any guarantee of permanent employment. In further regard to this interview, Feltz testified as follows:

"I don\'t recall just how Mr. Wilson happened to bring it up, but he did bring up the matter that there was going to be a union election. And I stated that I was for the principle of organized labor but there were things that I objected to in the labor union movement. And I stated that 8½ years before that I worked in a factory in Michigan in between churches, and a union election came up at that time and I voted `No.\'"

As a new employee Feltz was not eligible to vote in the election referred to, which subsequently took place on November 6, 1962.

The election was conducted by the Board to determine if the International Molders and Allied Workers Union, AFL-CIO (hereafter union) would represent respondent's staff of some 60 employees. Union lost the election. Prior to the election respondent, primarily through Wilson, Jr., had threatened to fire anyone contemplating joining the union, to close down if the union won the election, or to take certain other drastic actions.

In February and March of 1963 respondent terminated the employment of three employees who had been "trying to get a union in here". On March 29, 1963, union filed unfair labor practice charges in case No. 18-CA-1603 against respondent as a result of the terminations. A complaint was issued in that case by the General Counsel of the Board on May 21, 1963, and a hearing was set for July 16, 1963. Case No. 18-CA-1603 was ultimately settled on July 24, 1963, when respondent paid the three discharged employees a stipulated sum of back pay and posted notices. There were settlement stipulations that respondent did not admit violations of the Act and that "contingent upon compliance with the settlement's terms," "no further action shall be taken in the above cause".

In preparation for the July 16th hearing, a representative of the General Counsel met with several employees of respondent, including Feltz, who had been subpoenaed as witnesses by the Board. This meeting took place during the evening of July 9, 1963, at the Redwood Motel in Marshalltown, Iowa. According to the testimony of some of respondent's employees, respondent was aware of the meeting and had it under surveillance. None of respondent's officers took the stand to deny this.²

The uncontradicted testimony of Feltz indicated that on the morning of July 10, 1963, he was approached by Mr. C. D. Wilson, Sr., president of respondent. The following conversation took place:

"* * * C. D. Wilson, Sr., came over to me where I was working and said, `I understand that you attended a union meeting last night\'. And I told him that it was much more than a union meeting. He then asked me how many fellows were there, and I said `Some.\' And he said, `Well, we don\'t need a union at the plant.\' And then he said something about `I believe in God\' and turned away, and I didn\'t hear the rest that he said."

Irvin Steinberg, another employee of respondent who had also attended the July 9th meeting at the Redwood Motel, testified that he had been approached by Dick Sweet, a foreman³ in respondent's plant, near the end of July 1963. According to Steinberg, Sweet allegedly "asked me if I thought Bob Feltz was trying to get the union started; and I told him, `He hasn't said anything to me about it.' And that is all that was said."

Feltz started at a $1.41 hourly wage rate and after receiving a series of automatic raises he was earning $1.74 per hour as of August 2, 1963. From October 15, 1962, to March 25, 1963, Feltz performed general shop work. On March 25th Dick Sweet directed Feltz to do dip painting and to wash steel parts in a wash rack. The washing is done with a commercial fluid, "Apco", which apparently gives off evaporating fumes that "are disagreeable to some employees and make others dizzy, with a sensation of a `cheap drunk'". At the end of a week Feltz, experiencing nausea, headaches, dizziness and aching lungs which apparently resulted from the evaporating fumes, reported to respondent's plant superintendent, Leland Wiseman, that he would have to quit if he had to continue working at the wash rack. Wiseman informed Feltz that he had "a very poor work record" and was not holding up his end of production. After a conference with Wilson, Jr., Wiseman gave Feltz a two-week trial at shop work doing spot welding.⁴ Wiseman discouraged Feltz from quitting because of respondent's policy to do everything possible to allow an employee to work out. Feltz testified that approximately one month after starting the spot welding he was asked by Wiseman if he liked the work. He replied he did, to which Wiseman, who, it should be emphasized, was the plant superintendent, allegedly responded, "Well, that solves our problem for us."

Beginning on July 3, 1963, Feltz worked with employee Charles Baker for two and one-half days on a two-man operation to spot weld larger casings. After that, Feltz again worked on general spot welding by himself until he was reassigned to work with Baker on July 18, 1963, to spot weld large No. 5 casings. After three days Baker, who didn't particularly care for spot welding and who also thought Feltz to be a "slow worker", asked to be transferred and he was taken off spot welding after working through July 23rd. On July 24, 1963, the date of the settlement in Case No. 18-CA-1603, Baker was replaced with Dale Weston, a teenager who was unfamiliar with spot welding and who was taught that operation by Feltz. Production records, which were never produced as such, were kept after Baker was replaced and indicated that the Feltz-Weston team produced 31, 36, 36, 41 (4 of them "bad") and 36 casings for the five working days beginning on July 24, 1963. Feltz's testimony indicated these figures may have been low by four or five casings per day. Another team, who were experienced spot welders and did nothing else, produced some 54 casings per day during the same period. The records were kept, according to Wiseman, to help locate a bottleneck in production. On July 31, 1963, the Feltz-Weston team was replaced with another team "because they weren't producing enough casings". The team replacing the Feltz-Weston team supposedly produced 51 casings their first day, but significantly no further records were kept after July 31, 1963. There was testimony that it took at least a week before a new team could expect to produce in excess of 50 No. 5 casings per day.

Feltz worked on the "big shears" until 11 a. m. of August 1, 1963, at which time he was reassigned to the wash rack. Wiseman testified that one of the reasons he reassigned Feltz to the wash rack was because Feltz's physical structure would not permit him to perform effectively, e. g., on the "breaking operation". Feltz stood 5 feet 6 inches tall and weighed 180 pounds. However, another employee, Robert Ellison, testified that he worked on the "breaking operation" even though at 6 feet 1 inch and 275 pounds he "dwarfed" Feltz. Wiseman further testified that the assignment and transfer of men from one job to another within the plant was in line with respondent's general policy.

Feltz testified that on the afternoon of August 1, 1963, he complained to Wiseman about being ill from the wash rack fumes. Wiseman denied this conversation. Feltz managed to finish out that day. On August 2, 1963, Feltz told Wiseman that he wasn't going to work at the wash rack any longer. Feltz further testified as follows:

"And at about 9:15 Leland Wiseman came by, and I called him over to where I was working. And I told him that, because I had gotten sick from the fumes again, I wasn\'t going to work at the wash rack after 9:30. And I told him that it was because I was sick that I wanted to go home for the rest of the day. And I asked for my paycheck.

"And we talked further, and I asked him why it was that I was put back on that work when I had gotten sick from the fumes back in March. And he told me that that was the only work that was left for me to do. And I asked him then why I was taken off of spot welding, and he told me that it was because I was too slow a worker; that I had a very poor

...