Allied Materials Corp.

National Labor Relations Board - Board Decisions

Aug 14, 1951

95 N.L.R.B. 1064 (N.L.R.B. 1951)

1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorized to make a union-security agreement covering this unit,
within the meaning of Section, 8 (a) (3). We note that the Board
would be faced with a completely different question if the employees,
of Taylor and Borroughs had filed decertification petitions under
Section 9 (c) (1) (A) (ii), or deauthorization petitions under Sec-
tion 9 (e) (2).
Because the Board determines the appropriate unit on the par-
ticular facts "in each case," as Section 9 (b) requires, we emphatically
disagree with our colleagues' so-called graphic illustration of the
alleged error of our view by pointing to a different set of circuni-
stances. We agree that the assumed circumstances would change the
whole character of the unit.
The majority makes one other assertion which should not remain
unanswered. They argue that we would be giving preference to the
employees of old Association members if Taylor and Borroughs em-
ployees were subjected to a union shop without a separate election.
But that is merely a restatement of the common fact that any election,
whether political or otherwise, binds not only the losing voters but
also the newcomers to the unit.
It follows that we would dismiss the petitions here, on the ground
that Congress did not intend to require further authorization elec-
tions merely because an accretion took place in an existing union-shop
unit.
ALLIED MATERIALS CORPORATION and INTERNATIONAL UNION, UNITED
AUTOMOBILE , AIRCRAFT & AGRICUIJruRAL IMPLEMENT WORKERS 01-
AMERICA (UAW-CIO). Case No. 7-CA-405. August 14, 1951
Decision and Order
On May 11, 1951, Trial Examiner Louis Plost issued his Iuternie-
diate Reports in the above-entitled proceedings, finding that the Re-
spondent 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
3 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this proceeding to a three-member panel
[ Members Houston, Reynolds , and Styles].
95 NLRB No. 142.
ALLIED MATERIALS CORPORATION 1065
termediate Report, the exceptions, and the entire record in this case z
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.-'
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Allied Materials Corpora-
tion, Detroit, Michigan, its officers, agents, successors, and assigns,
shall :
1. Cease and • desist from :
(a) Discouraging membership in International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica (UAW-CIO, or in any other labor organization of its employees,
by discriminating in regard to their hire or tenure of employment or
any term or condition of their employment, except to the extent per-
mitted by the proviso to Section 8 (a) (3) of the amended Act.
(b) Inquiring into the union membership or any of its employees,
seeking information with respect to the identity of union members
or attempting to induce employees to report to it with respect to
union affairs, or in any other manner interrogating or questioning its
employees with respect to their union membership or sympathies.
(c) In any other manner interfering with, restraining, or coercing
its employees in their exercise of their rights of self-organization, to
form labor organizations, to join or assist International Union, United
'Automobile, Aircraft & Agricultural Implement Workers of Amer-
ica (UAW-CIO), or any other labor organization, to bargain col-
lectively through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a,labor organization as a condition of
employment, as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which we find will effectu-
ate the policies of the Act:
(a) Offer to Anthony Thompson, Huston Adams, and Maurice Ott
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and make each of them whole for any loss
The Respondent ' s request for oral argument is hereby denied because the record and
exceptions , in' our opinion , adequately present the issues and the positions of the parties.
3 The Intermediate Report inadvertently states that Thompson was one of those who
attended the first meeting to organize the Union. The record does show that Thompson
Attended subsequent meetings of the Union at the union hall. In any event, this
inaccuracy does not affect the Trial Examiner 's conclusion that Thompson was' discharged
for discriminatory reasons, nor our concurrence therein.
1066 DECISIONS"OF* NATIONAL LABOR RELATIONS BOARD
of pay each may have suffered by reason of the discrimination against
him, in the manner provided in the section of the Intermediate Report
entitled "The Remedy.",
(b) Upon request, make available to.the National Labor Relations
Board or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and.
reports, and all other records necessary to analyze the amounts of back
pay due.
(c) Post at its plant in Detroit, Michigan, copies of the notice
attached to the Intermediate Report marked "Appendix A." 4 Copies
of said notice, to be furnished by the Regional Director for the
Seventh Region, shall, after being duly signed by a representative of
the Respondentbe posted by it immediately upon receipt thereof, and
be maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for, the,Seventh Region, within
ten (10) days from the date of this Order, what steps the Respondent
has taken to comply therewith. •
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed March 13, 1950, by International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America (UAW=
CIO), herein called the Union, the General Counsel of the National Labor
Relations Board, herein called the Board, by the Regional Director for its
Seventh Region ( Detroit, Michigan ), as agent for the, Board , issued a complaint
dated February 6, 1951, against Allied Materials Corporation, Detroit, Michigan,
herein called the Respondent, alleging that. the. Respondent had engaged in
and was engaging in unfair labor practices within ° the meaning of .Section 8
(a) (1) and (3) and Section 2 (6) and ( 7) of the National Labor Relations
Act, 61 Stat. 136, herein called the Act. A 'copy of the charge was duly served
on the Respondent on March 14, 1950 , and a notice of hearing was duly served
upon the Respondent and the Union on February 6, 1951, copies of the charge
and of the complaint being attached to the notice of hearing.
With respect to the unfair labor practices , the complaint alleges in substance
that the Respondent on January 24, 1950 , terminated the employment of three
named individuals because of their membership in and activities on behalf
of the Union , in violation of Section 8 (a) (3) of the Act and engaged in certain
other conduct violative of Section 8 (a) (1) of the Act.
* This , notice,, however, , shall be, and it hereby is, amended by striking from line 3
thereof the words "The Recommendations of a Trial Examiner " and substituting in lieu .
thereof the words "A Decision and Order ." In the event this Order is enforced by a
decree of a United States Court of Appeals , there shall be inserted in the notice before
the words : "A Decision and Order ," the words : "A Decree of the United States Court
. of Appeals Enforcing."
ALLIED MATERIALS CORPORATION 1067
On-February 16, 1951, the Respondent filed an answer in which it denied that
it had engaged in any of the unfair labor practices alleged in the complaint,
admitted that it terminated the employment of. the ; individuals named in the
complaint-, and-averred that such terminations were for cause.
Pursuant to notice, a hearing was held at Detroit, Michigan, on February 26
through March 2, 1951, before Louis Plost, the undersigned Trial. Examiner.
The General Counsel, the Respondent, and the Union were all represented at
the hearing. The representatives of the parties, herein referred to in the
names of their principals, were afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce evidence bearing on the issues, to
argue orally on the record, and to file briefs and/or proposed findings of fact
and conclusions. of law with the undersigned. The General Counsel and the
Respondent argued orally on the record. A date was fixed for the filing of
briefs and/or proposed findings and conclusions.. This date was later extended
at the Respondent's request. At the close of the hearing the undersigned granted
an unopposed motion by the General Counsel to conform all. the pleadings to
the proof with respect to dates, places, spellings, and like matters. A brief
has been received from the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The parties entered into the following stipulation :
Respondent , Allied Materials Corporation, is a Corporation created under
the laws of the State of Delaware, with its principal office at Oklahoma
City, and that it is a producer of petroleum products. That it operates a
plant at Stroud, Oklahoma, and also operates a plant in Detroit, Michigan.
That.during the year 1950, the Respondent received at its plant in Detroit,
Michigan from points outside the State of Michigan, raw materials con=
sisting principally. of petroleum products valued in excess of one-half million
dollars. That also during the same period, namely the year 1950, the
Respondent at its Detroit Plant, produced finished products consisting
principally of undercoating and sound deadner, valued in: excess of orie=
half million dollars and that approximately twenty percent of these finished
products were shipped from Detroit to points and places outside the State
of Michigan.
II. THE ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America (UAW-CIO), is a labor organization within the meaning
of Section 2 (5) of the Act, admitting employees of the Respondent to member-
ship.
III. THE UNFAIR LABOR PRACTICES
A: Interference, restraint, and coercion
1. Synopsis
On or about January 10, 1950, six of Respondent's employees, together with
a representative of the Union, met in the home of one of their number for the
purpose of discussing the organization of a union . The group planned an
1068 DECISIONS -'OP. NATIONAL LABOR RELATIONS BOARD
organizing campaign, signed application cards for membership in the Union,
and took similar cards to circulate throughout the plant.
On January 24, two of those who attended the meeting were discharged and
another was laid off, being reinstated the following week and then later again
laid off and not recalled.
The General Counsel contends the terminations above referred to were dis-
criminatory and violative of the Act. The Respondent asserts they were for
cause.
2. Acts of interference, restraint, and coercion
(a) Attributed to Plant Superintendent Charles Kurtz: James Hatcher testi-
fied credibly that on January 10.or 11, 1950, at which time he was employed by
the Respondent, six of the Respondent's employees met at his home, together
with a representative of the Union,' for the purpose of organizing a union among
the employees ; all those present signed union-application cards, made plans,
including the timing of solicitation for membership. With respect to the meeting,
Hatcher was corroborated by all those present.
Paul Higgs, then employed by the Respondent, testified that he attended the
meeting at Hatcher's home and further that "a couple of weeks" after the
meeting Charles Kurtz, at that time the Respondent's plant superintendent,
quizzed him with respect to the Union. The incident took place in the warehouse
during working hours. Higgs testified :
Well, he called me off and said he wanted to talk to me. Said he didn't
know hardly how to go about it. I told him to let it chew. So he asked
me if I knew who was starting the, union. I told him no. He asked me if
I-if anybody approached me, if I would tell him.
* s' s s s s
I just shrugged it off and said okay, that is all.
John Welty also employed by the Respondent during January 1950, testified
that he attended the meeting at Hatcher's home; signed an application for
membership and thereafter became active on the Union's behalf. Welty further
testified that "just shortly after. our first union meeting" Plant Superintendent
Kurtz talked to him about the Union, "out in the shipping room of the plant."
Welty testified :
He called me up and asked me if I had belonged to the union, I had
union cards and I told him no, sir. He asked me if I'd been approached by
anybody and I told him no, sir. He says that we don't want a union in
here, that big shots down in Stroud, Oklahoma, would not stand for it. He
said when you go back out in the plant, I would like for you to keep your
eyes and ears open, and anybody comes up to you with union cards or you
see anybody handing union cards, I will ask you to report it to me. 'It will
not hurt you in any way and I will personally see that these men ` are'fired.
Q. Can you recollect anything else he said?
A. He said that also that the plant would be sold, that it wasn't large
enough. That the union would not be brought in there.
Harold Haney, also a former employee of the Respondent, testified that some-
time in December 1949, "before the first meeting" he talked to Kurtz "several
times," , .
1 Those attending the meeting were employees Harold Haney, John. Welty, Maurice. Ott,
huston Adams, Paul Higgs, Hatchet, and Sam Blackburn, the union organizer.
ALLIED MATERIALS CORPORATION. 1069
It was about the samething: ^:He said it more-, than one time. He said
about the same thing:tha"t;he said. to- meat the-s'and bin, that if, the com,
pany-the company wasn't large enough forsa union; couldn't operate with
a"union . The pension plan would !be done away.:with;
Kurtz denied that he ever talked to Welty about the Union. He was not
asked to-deny the testimony of Higgs' and' Haney but` did' testify that he never
told any employees that the plant would close if the Union was organized.
Kurtz did not impress the undersigned as a reliable witness and therefore
the undersigned does not credit his testimony insofar as it contradicts the above-
found testimony of Higgs, Welty, and Haney.'
Upon the entire record, `considered as a whole, and from his observation of
the witnesses the undersigned credits the testimony of Higgs, Welty, and Haney.
(b) Attributed to General Foreman Virgil Adams: Huston Adams testified
without contradiction that he had been acquainted with Foreman Virgil Adams
In Tennessee ; that he came to Detroit from Tennessee in the foreman's car and
obtained employment with the • Respondent ` on his recommendation. Huston
Adams is not related by blood to Virgil Adams. Huston Adams testified : "No sir,
no kin, no more than my son and him [Foreman Virgil Adams] married sisters."
The relationship between the two men, according to the testimony of both, was
good and has remained so.
Huston Adams testified :
A. Well, him [Virgil Adams] and his "family was over at my house and
spent the day one day, while I was working there. I don't know, back before
'Christmas in '49, probably a couple of months. I wouldn't say what date,
but anyway, back about then, anyway.'
So, we was-you know how it is 'here, it ain't like it "is at home. We
didn 't have seats, me and him was laying across the bed and talking and got to
talking about the mill and the hands.
And he'said they got a union talk over there, one thing, Mr. Adams. You
ever catch any union talk, let me know at-'once.' Makes no difference. who
it is, if it was the best hand we had there, :we'd fire him.
Foreman Virgil -Adams did not deny the above-related testimony which is
credited by the undersigned.
Harold Haney testified that sometime in December 1949, he had "been accused
of" union sympathies by persons not specified or named. He testified as follows:
A. I don't know, it was around-must -have .been about December, maybe
somewhere along there. That was before the first meeting they had. Well,
I approached Virgil [Foreman Adams] in the- front shipping room and
because I'd been accused of trying to get a union. I knew what the conse-
quences would be if I was to-if that was to get out, which it had already
got out. Virgil said , "I hope you.'are"hot."' Isaid , "Well, it is a bunch of
lies" because I knew what would happen if it was got out. He said, "Yes,
the plant couldn't operate, with a union and they might have to -sell out."
The Pension Plan would be done away with.
Haney further testified that on the same day he began a similar conversation
with Plant Superintendent Kurtz and was told that the plant "couldn't operate
with a-union. They'd-have to do away with tpe pension plan."
Kurtz did not specifically deny Haney's above-related testimony but as herein
found did testify that he at no time told any employee the plant would be closed
? An analysis of Kurtz's testimony and the undersigned ' s reasons for failing to credit
much of it will be more fully discussed at a, later point herein.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If the employees were represented by a union . The undersigned on the entire
record, considered as a whole , and from his observation of the witnesses.does
not credit Kurtz but does credit Haney. .
Virgil Adams did not deny Haney 's testimony as above related.. The under-
signed credits Haney.
Anthony Thompson , one of the three employees alleged to have been discharged
in violation of the Act , testified to the following conversation with Foreman
Virgil Adams :
A. I'd say while I was on midnights , sometime in January . He [Virgil
Adams ] was telling me, says, "Tony , what do you think about the union
around here ? The boys wanting a union ?" I said, "Well, I don 't know."
I said , "I don 't want to say too much one way or the other about it." He
says, "Well , I think they 'd be foolish in wanting a union around here."
He says, "The company has a wonderful Pension Plan around here and
that's what most . of the boys are after, in my opinion . Better working
conditions and a Pension Plan or something of that description ." He said
that he had a leaflet on it that he was going to bring me down and let me
read but I never did-receive it.
In fact, I'd never heard of a Pension Plan before that. When .I was
hired in there, no one mentioned a Pension Plan to me.
This testimony was not denied . Thompson is credited by the undersigned.
The record discloses that the Respondent had knowledge of the organizational
activities of its employees almost as soon as they began.
The record is clear that employee Ray Hearld who lived in the home of Fore-
man Virgil Adams was given a -union-application card by employee Maurice
Ott. Hearld testified that he showed the card to Superintendent Charles Kurtz
under the following circumstances :
Charlie said he'd like to see the. card and. asked me could I get one and I
had it in my pocket then. I said here it is, do you want to see it? He looked
at it and give it back to me.
Q. Did you tell him where you got it?
A. Yes, sir. '
Q. What then did you tell him in that respect?
A. Yes, sir.
Q. What did you say to him? -
A. Just handed him the union card and said here it is.
Q. Did you tell him who gave it to you?
A. Yes.
Q. Who did you say gave it to you?
A. Maurice Ott.
Kurtz was not questioned with respect to Hearld's testimony.
Foreman Virgil Adanis testified that Hearld told him he had been given an
application card for the Union.
Although the testimony of the three men is peculiar in that there is no direct
.corroboration of Hearld in the testimony of Kurtz, whom Hearid mentions, while
.Adams, 'whom -Ilearld does not mention, testified that he was told of-the union
-cards by Hearld, the sum of the testimony of the three men is that Kurtz and
Adams obtained knowledge of the circulation of the union applications from
Hearld . The undersigned so finds.
Paul Higgs testified credibly and without contradiction that "about a week"
after Huston Adams was discharged, a date fixed as being January 24, 1950,
Virgil Adams inquired of him whether or not Higgs "was in it [the Union ] or not."
Higgs told Virgil Adams that he had been "in it from the start."
ALLIED MATERIALS CORPORATION 1071
(c) Attributed to other supervisors : James Hatcher testified that "about a
week" after the meeting in his home and after he and, others began to solicit
signers to union applications, Bob Hillerman, whom the 'Respondent admitted
was a chief chemist and as such had supervision," called him into.the laboratory
anti asked if he "knew anything about" the Union and whether Paul. Higgs was
behind it. Hatcher denied, any knowledge.
The testimony was not denied and is credited by the undersigned.
Anthony Thompson testified without contradiction that on unspecified dates in
1949,.various of the Respondent's employees discussed the formation of a union
during their lunch periods, and that at one of such discussions Foreman Edward
F. Danbert was present and told the men "we were crazy to want a union in there,
because the overtime would be cut off and said they'd push you a little harder.
Also that some of your easy work would be taken away from you."
CONCLUSION
The Respondent does not contend that the conduct of Superintendent Kurtz,
General Foreman Adams, and Supervisors Hillerman and Danbert with respect
to labor matters is not binding on it insofar as it relates to the guaranteed
rights of the Respondent's employees.
The undersigned has found that the Respondent had knowledge of its employees'
union activities from the information supplied by employee Hearld. The conduct
of Kurtz and the other supervisors as found herein follows a clear pattern ; all of
them sought information regarding the Union, by questioning employees as to
their interest and activity in behalf of the Union, asking that the identity of
others interested in the Union be disclosed, threatening the loss of a pension
plan and both Kurtz and Adams also sought to make informers of certain
employees.
Questioning employees with respect to their union membership, seeking the,
identity of union members, attempting to corrupt employees into becoming spies
and informers with respect to a union and its adherents, is all conduct which
has long been held to be violative of the Act, neither the constitutional, tight of
free speech nor the guaranteed right of "expression of views, argument or
opinion" contained in the Act,' is a sanction therefor.
The Respondent argues in its brief that a finding cannot be sustained -by.
unsupported testimony of an employee with respect to statements made "to him
alone." However, the pattern of the conduct of the Respondent's supervisors,
in the main not denied, and as found herein, is such that none of it was in reality
"isolated" but all was clearly calculated to achieve a single result. This being
so, is sufficiently persuasive on the credited testimony of the party directly
involved to sustain the findings made.
On°the entire record and on the following conduct as hereinbefore found:
Kurtz' inquiry of Higgs and his request that Higgs obtain information regard-
ing the Union for him, and the same conduct on the part of Kurtz with respect
to Welty ; Kurtz' inquiry of Haney and his request that Hearld obtain a union-
application card for Kurtz' inspection ; Virgil Adams' request that Huston Adams
inform him of any union activity among the employees.; his statements to Haney
to the effect that the plant could not operate and that the pension plan would be
abolished in the event a union was organized among the employees ; his similar
statement to Thompson, and his inquiry of Higgs regarding the latter's union
membership ; Hillerman's request that Hatcher give him information regarding
the Union and its leadership Danbert's statement- to Thompson and various
3 Section 8 (c).,
1072 DECISIONS '• OF ,',NATIONAL; -ABOR, RELATIONS BOARD
unidentified employees to. the . effect : that: they would lose certain benefits if the
Union organized the employees ; and on the entire record the undersigned finds
that the Respondent - has: interfered . with, restrained , and coerced its employee.%
in the exercise of rights guaranteed in Section 7. of the Act.4
B. The discrimination in hire and tenure of employment
1. The'ihsthllation of'the third mixer -
The record establishes beyond.-any question that on January, 24, 1950, the
Respondent discharged: Anthony- Thompson:-and. Huston Adams and laid off
Maurice Ott.
,. Walton Moore, the Respondent's vice president in, charge of manufacturing,
testified that he divides his time between Stroud, Oklahoma, and Detroit, which
he visits every "three or four weeks" for a stay of 2 or 3 days. Moore further
testified that prior to January 1950; the Respondent had in operation two
"mixers," which are machines essential to its manufacturing process, and that
"between the 20th, 22nd and 23rd," of January a third "mixer" was installed under
his direct supervision. This installation was very important to the Respondent
and Moore testified in detail with respect to the actual installation and further
that he "worked around the clock" on. the day the job was completed.
Moore's testimony on cross-examination cast serious doubt on the reliability
of his memory. Moore testified that he recalled the discharge of Huston Adams
and that he in fact advised it on the day it was made. He further testified that
he had just arrived from Oklahoma on the day Adams was discharged and had
not been in the plant the previous night ; he further testified that the third mixer
was installed 30 days prior to Adams' discharge and was in operation at the,
time but that "I couldn't tell you whether it was two days or two months."
Adams was discharged January 24. -
Jack Dahlgren, now the Respondent's assistant sales manager and its assistant
plant superintendent in January 1950, testified that Anthony Thompson was
discharged for inefficient work performed on the, shift immediately preceding
the discharge. Dahlgren testified in effect that three mixers were in operation.
at the time, including one Thompson allegedly kept down by failing to repair a
pump. Dahlgren testified :
Q. (By Mr. YoE.) [Respondent] What would be the effect of not having;
that pump work during the night?
A. It would eliminate the mixer from the production line.
Q. What would be the effect of eliminating the mixer?
A. Our production would have been cut by a third.
Q. Would that affect any employees, any other employees?
A. Yes. It meant that we had, some.that stood around a great deal of the
time. .
On cross-examination Dahlgren testified that the third mixer was installed.
January 15, 1950, or "maybe the 17th; 18th, 19th" of January ; that it had been
in operation several days before Thompson was discharged. .
Thompson was discharged January 24.°
Edward F. Danbert testified that three mixers were in operation on Thompson's-
final shift. Thompson's last shift ended January 24, at 8:30 a. in.
-Robert J. Hillerman, the Respondent's chemist, testified that Moore's testimony
to the effect that the third mixer was installed on January 22 to 23, was "possibly
* Other similar' alleged violations are discussed at a later point herein.
°'Thompson 's discharge is discussed later herein.
ALLIED ,MATERIALS CORPORATION. ;_. 1073
correct:''-, He further testified that the -first,batch of material to be run through
the third mixer was on February 4, 1950.
.William G. Galinet, the Respondent's office managet,,;,likewise testified that the
third mixer was not put in operation until Februar3it14::', He testified that the
mixer was installed on January 22'to' 23, but could not be put in operation because
the proper type of motor to operate it did not arriveuntil,after February 1.
All of the above testimony; relating to the third:'mixer is by witnesses called
by the Respondent; .the undersigned has carefully considered it and is mindful
of the self and mutual contradictions appearing ., therein; having weighed the
testimony including his observation of the witnesses the undersigned is con-
vinced and finds that the Respondent installed the third mixer between the 20th
and 23rd of January 1950, including both these dates, and .that the third mixer
was in operation on January 24.
The undersigned therefore cannot and does not credit Moore's testimony that
he arrived from Oklahoma on January 24, and was not in the plant the preceding
night. The undersigned does not credit any of the testimony adduced to cor-
roborate Moore's testimony in this respect.
2. The discriminatory discharge of Anthony Thompson
Anthony Thompson worked in the Respondent's maintenance crew. When he
was first hired it was understood that he was not skilled at certain types of
work associated with maintenance and that his remaining in the maintenance
department depended on his performance. . Thompson received a laborer's rate
of pay. He was the only maintenance man on the midnight shift. Thompson
reported for work at 12 midnight, and was discharged when his shift ended.
at 8:30 it. in.
Thompson testified that when he arrived 'he found Foremaii Charles Burkett
at -work repairing a pump connected with one of the mixers which was shut
down because of the.failure of this pump. According to Thompson the pump,
was for "a new mixer that was put in over the weekend."'
The mixer itself was a large open tank in which the ingredients of the Re-
spondent's product were mechanically compounded. Under the tank .was a pump
whose function was to force the mixture through a screen in order to remove
any foreign objects which might have fallen into the mixture, and also to convey
the product to drums. The pump itself consisted of two gears enclosed in a.
case or jacket . The mixture passed through the gears.
Thompson testified :
Well, when I came in, he [Burkett] had the pump torn down, was taking.
some material out of the pump that was in the mixer that didn't belong in
there.
Thompson further testified :
He says, "Tony, might as well change clothes and come on in." Says,,
."We've really got trouble. All kinds of stuff flowing through the pump here
and we just can't get this batch out, it seems like. Having to repair this
pump one right after the other, trying to get this mix out. They installed
the' tank over the weekend and' everything under the sun must have dropped
in," he says.
Thompson continued:
Well, he, stuck around. As a rule, he.usually leaves around, I'd, say mid-
might . Anywhere from 12 to 1 o'clock- somewhere in there. That particular
s January 20, 1950, fell on Friday . January 23 , 1950, fell on Monday.
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
night, they had so much trouble that he stuck around until lunch period of
the third shift, which is around three or three-thirty when we eat.
Q. What instructions if any, did he give you as to what you were to
do when he went home?
A. He told me the only thing I could do is continue doing what we had
been doing, continue to change pumps and gears and maybe the solution
would start flowing. We got all the matter out of there and parts would
start to pump the solution out of the vat. By this time, we just about prac-
tically ran out of all the reserve in gears and pumps and one thing and
another, and we were just doing the best we can by pulling the foreign
matter out and getting the pump assembled, starting the pump up again to
pump again. She'd run a very short time and the same thing would happen
again.
Thompson testified that he and Burkett changed the gears in the pump "four
or five times." They could not get the pump into operation because foreign
matter, such as bolt heads, nuts, and pieces of welding rod and the like would
come into the pump with the mixture and clog the gears.
At about 3:30 a. in. Burkett left, first, however, Burkett, according to
Thompson : ,
He told me he was leaving then and he says, he had his other foreman
that was on midnight, Walter Stabinski, and he told Walter, he says, "The
only thing you can do is keep changing the pumps and gears." He said,
"Walter, you assist him sometime, because it is really mean for one ma.u
to change the whole pump. It could be done, but it is a tough job, in other
words." So Walter and myself worked on them the rest of the .morning
after he'd left or the rest of the shift.
Thompson testified he was unable to get the pump to operate efficiently, "the
gears would keep clogging. Material wouldn't pass through." At 8 a. in. he
quit work, the shift being ended.
Sometime before the shift ended, according to Thompson's testimony, he went
to the boiler room to check the gauges and there met Huston Adams who was
changing into his working clothes. The boiler room, door could not be closed
entirely because a steam hose from the boiler. lay in the doorway. The glass
in the door and in some of the windows was broken. Thompson testified that
he and Adams entered into a discussion of the Union while some "three feet
away from the door." Thompson testified :
Well, the main topic was that we were wondering if we had enough signed
up to win the election when the election time came. Adams there said
he thought that he did. He was sitting there counting them off his fingers,
naming them.
Thompson testified further that as they were talking Foreman Virgil Adams
came into the boiler room. Huston Adams spoke to the foreman, who did not
answer, but "opened up his valves and went out."
After Virgil Adams left the boiler room, Thompson also left and reported to
Maintenance Foreman Edward F. Danbert, who was just coming on duty.
Thompson testified :
A. Yes, I found him back there and I told him that they had trouble all
that night with the pump. I say and Charlie Burkett stuck around until
lunch hour that morning-or that night, to see if he could get them going
along with me. Walter Stabinski had been on them with me. He told me
not to worry, they'd take care of it that day.
ALLIED MATERIALS CORPORATION 1075
Thompson also reported on some difficulties Burkett had with a loose mounting
for a motor and then went to change clothes. When he went to' punch out on
the time clock he could not find his card. He testified as follows :
So I -went and looked all over the racks for my card then, wondering
what happened to it. Thinking one of the boys had misplaced it or punched.
it and I couldn't find it no where. I looked in the doorway that leads to the
office and I saw Ed Danbert coming in the-coming in with the card in his
hand and he walked up to me and says, "Here's your. card, Tony, punch
it out, you are through." I says, "What do you mean" and he says, "You
know you held production up all night long, you can't do that on the job
all night." I says, "What do you mean I held up production? You knew
what was in the tank, you fellows installed that over the weekend and the
matter got in there and the gears couldn't take it through." I said, "Don't
try to say I held up production. I was working under orders, to change the
.pumps and gears to try to keep it going, which was impossible to do.
The only thing could be done was the pump could be removed and that batch
cleaned out and put a new batch in." . He says, "Well, Tony, it is your job
or my job." And he says, "It's not going to be my job." He says, "Fur-
thermore, you can't do electrical welding." I said, "Listen, when you, and
Charlie Kurtz hired me in, I -told you I couldn't do electrical welding," and
I says, "Has my work been satisfactory" and he said, "I have no complaints
with your work up until tonight." And he says, "You can't hold up produc-
tion around a place like this."
Then, he said Charlie Kurtz is not here to sign the check, so he says
that you could either come back sometime today to. pick up your check or
we will mail it to you. I says, "You can mail it to me, mail the damn
thing to me, I'm getting out of this joint." So then I went on.
Thompson's check was sent to him.
Thompson was one of those who attended the first meeting to organize the
Union and was very active in its behalf thereafter. .
Assistant Superintendent':Dahlgren testified that he learned of the "pump
incident" above referred to as soon as he arrived at the plant on the morning
of Thompson's discharge. Dahlgren testified that he did not..talk, to Thompson,
but that Danbert and Kurtz did so. in his presence. Dahlgren testified that
Danbert "told Anthony [Thompson] that it should not take over thirty, thirty-
five minutes to replace a pump on the bottom of the mixer.. Yet, it had, taken
him all night, and asked him why. Then he went on to say.that the Company
could-just couldn't afford to have thirty. minute jobs asking eight hours."
According to Dahlgren, he then heard Thompson reply "that he. was sorry he
tried his best and if he couldn't do the job, they-the way that they wanted it,
he had tried. If they required him to do..it in, that length of time, lie said
that he didn't think he could."
Dahlgren was. qualified as being familiar with pumps and pump repair. He
testified that all that had been necessary was to disconnect the pump, remove
it, and replace it with another. He also testified that such pumps were available
for the change.
Dahlgren further testified that Danbert had no authority to discharge em-
ployees, only Kurtz could make discharges and that he was present in Kurtz
office and heard Kurtz tell Danbert "to pull his [Thompson's] card and send
him up to the office and he'd fire him."
Now assistant sales manager.
961974-52-vol. 95-69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter Thompson came to the office and was discharged. Dahigren
testified :
Q. What did he [Charles Kurtz] say to him?
A. Told him that his work wasn't satisfactory, and that he had been
taken on a trial basis and it just didn't pan out.
Q. Is that all he said to him?
A. No.
Q. What else did he say to him?
A. May I include Anthony Thompson's statement to make this coherent?
Q. If you wish.
A. Thompson asked him if there was any chances of coming back and
going to work for Allied. Charlie said yes. He said not in the maintenance
department. He says, "you will probably be a laborer." But, didn't have
any room for him in the maintenance department. Mr. Thompson said
that he would return to the plant for another position in the plant, after he
took a few days off.
Q. And did Charlie Kurtz pay him off then?
A. Charles Kurtz told Bill Galinet to make out his check and Bill Galinet
told Anthony Thompson to wait a few minutes and he'd have it for him.
Thompson said no, just mail it to me, I don't believe I want to wait and he
left.
Dahlgren testified that the discharge occurred immediately after Thompson's
shift ; was made on January 25, so fixed by him because he recalled it as having
been the day after Huston Adams was discharged and from his examination of
Thompson's time card ; and because Bill Galinet, the Respondent's chief clerk,
had told him 2 days before the day on which the testimony was being taken that
the Respondent's records established this date.
William G. Galinet, the Respondent's office manager, testified that the Respond-
ent's office records showed that Thompson last worked on January 25, 1950,
(Wednesday), and was paid by check dated January 26, (Thursday). With
Thompson 's clock card before him, Galinet testified :
A. The last time he rung in, it shows here that he rung in at 12: 00 o'clock
Tuesday evening, January 24th.
Q. And is there anything on the card to indicate -
A. The card indicates that he punched-he did not punch out. It is
marked in pencil at 8: 30 a. in., January 25th.
Trial Examiner PLOST. I see . Then he worked through the night of the
24th and the morning of the 25th, until at least sometime in, the morning
of the 25th?
The WITNESS. 8: 30, yes.
Trial Examiner PLOST. Thank you.
Mr. YoE. That is all.
On cross-examination Galinet, questioned with respect to the clock card,
admitted that it showed that Thompson "punched in on 12: 08 or 12: 0 some-
thing" on Tuesday, January 24, and that a penciled notation on the card showing
8: 30 a. in. of January 25, was "an error."
During Galinet's examination the undersigned received the impression that
Galinet was attempting to confuse the record and create the impression that
Thompson did not start to work until the 25th and that the machine register and
not the penciled notation indicated the error.
ALLIED MATERIALS CORPORATION. 1077
The Respondent sought to-show that the time clock was out of repair . Galinet
at first testified that Thompson's card showed that he started work at "12: 0
something" on the 24th, right after midnight "the beginning of the day" and
that the card showed that he worked until Wednesday. 8: 30 a. in ., January 25.
The undersigned feels that the following is typical of Galinet's attitude and
testimony :
Trial Examiner PLOST. Didn't you testify that Wednesday the 25th was
a clerical error?
The WITNESS. I said it could be.
Trial Examiner PLOST. Now, are you trying to make this record show that
that man worked from midnight' or approximately midnight on the 24th
until the following-until 8 o'clock, two days later?
The WITNESS. I am not.
Trial EXAMINER PLOST. When did he quit working then, when was his time?
The 24th or 25th or 26th?
The WITNESS. This indicates that there is a possible error in the punch„
that the clock did not trip properly or there is an error in the marking of the
Wednesday, 25th.
Trial Examiner PLOST. That's what the card indicates?
The WITNESS. That is right.
Trial Examiner PLOST. Are you trying to tell us that he worked up' to that
time, or do you know?
The WITNESS. I don't know.
Galinet also testified :
Trial Examiner PLOST. All right. Then you are still of the opinion now,
that the one that is marked on Wednesday-on the 25th, is a clerical error?
The WITNESS. It must be.
Trial examiner PLOST. There is a clerical error on that card, isn't there?
The WITNESS. Must be.
Q. (By Mr. YOE.) Do you know whether or not that clock trips at 12•
o'clock midnight or not?
A. It is supposed to. We did have some trouble with the clock. I cannot
say we had trouble at this time.
Galinet then testified that the payroll record (which was not introduced in
evidence ) showed that Thompson's last day of work was January 24. The pay
check is dated January 26.
On redirect examination by the Respondent Galinet testified :
Q. (By Mr. YOE.) Since noon recess, Mr. Galinet, have you examined the
time card, being General Counsel's Exhibit No. 5?
A. Yes.
Q. And did you make a comparison of the other records?
A. I did.
Q. What do you find?
A. I find that according to this card, the man punched in at 12: 0 something,
Tuesday morning and should have punched out actually at 8:30 a . in., Tues-
day morning.
Trial Examiner PLOST. And Tuesday morning is what date?
Mr. YOE. The 24th.
The WITNESS. The 24th.
`1078 DECIS'IONS.OF',NATIONAL' LABOR RELATIONS BOARD
Charles Kurtz 8-called, by the' Respondent testified.:
Mr. Danbert was the man in charge of maintenance. He came to me with
the report that Anthony Thompson had failed to do a job which ordinarily
required thirty minutes.
Kurtz testified that the repair incident was "`early in the morning" ; that it
was then discussed with Thompson ; that the discussion took place in Kurtz'
office, Danbert, Thompson, Dahlgren,' and himself being present; that the follow-
ing conversation then took place:
Q. (By Mr. YOE.) And what did you say to Anthony Thompson and what
did he say to you?
A. Well, we discussed the situation of changing a pump and of course, I
asked him why it had taken him so long. He in turn told me that be didn't
think he quite was fit for the job, and that because we had agreed on his
taking the job on a trial basis, that he would give up the idea of becoming
a- maintenance man.
Q. Did you have any further conversation?
A. Yes, I did.
Q. State for: the record what it was, referring to the same time and place?
A. Yes, we are.
Q. All right.
A. He then asked me if it would be possible for him to have a job in an-
other department of the plant and I told. him that that was very probable.
But that as a maintenance man, that was out.
Q. Did he say anything to you?
A. Yes, he said that he would be back in a few days, that he had some
ether business that he was going to attend to. Of course, I don't know what
that was. .
On cross-examination Kurtz testified that he discharged Thompson ; that he
was the only one authorized to do so; then changed his testimony to be that
Danbert discharged Thompson; that 'he' (Kurtz) was not in the plant at the
time the discharge was made; that Thompson's final check was mailed to him;
that he had not authorized Danbert to discharge Thompson or to lay him off,
but only "To let him know that his services` as a maintenance man was no longer
:required"; that this was pursuant to an agreement between Thompson, Danbert,
and himself to the effect that if Thompson failed on maintenance, in which he
lacked experience, he would be removed from that. department; that Danbert
had told him Thompson was not capable "several days" before the. discharge;
.that he had a conversation with -Thompson in which he did not discharge him
but:
After discussing his self, it was agreed between Thompson and myself that
he was not eligible for maintenance. ' And I said that Ed has asked me to
leave it to him as regarding the time that you will be. released from
maintenance.
Kurtz further testified as follows :
Trial Examiner PLOST. Now, just as a mile post here in all this testimony,
what was the primary reason, the immediate reason for the discharge of
Thompson, for letting him go?
What had he done that you let him go that day?
The WITNESS. His work was very unsatisfactory.
e At that time plant superintendent . At present not employed by the Respondent.
ALLIED MATERIALS ` CORPORATION 1079 ,
Trial Examiner PLOST. Well , what had he done, that made you know his
work was unsatisfactory?
The WITNESS. He had failed to do several jobs that we had given him;
one was the changing of the pump.
Trial Examiner PLOST. Yes.
The WITNESS . The other jobs, I don't remember or recall just what they
were, but they were reported to me by his foreman.
Trial Examiner PLOST. Those jobs all had been done immediately before
you let him go, is that it? His unsatisfactory jobs?
The WITNESS . No, from the time he started until the time he was let go.
He only worked about a month , I would say.
Kurtz then testified that he merely agreed to Thompson 's discharge after the
event and was told of the pump incident after Thompson had been discharged liiy
Danbert.
With respect to his final conversation with Thompson , Kurtz testified :
A. It happened when he was released , but I don't know exactly whether it
was the morning before or the morning after. I' don't remember exactly.
I do remember talking with him and everything , and offering him a job
in another department.
Q. When did that occur?
A. I don't know, I can 't remember the exact date.
Q. Was it before he was terminated?
A. I can ' t remember whether it was or not.'
Edward F. Danbert , the Respondent 's maintenance foreman under whom
Thompson worked , testified that upon . his arrival for the 8 a . in. shift, on the
morning that Thompson was discharged , he was told of Thompson 's trouble
with the pump ; that the following conversation occurred between them :
Q. What did you say to him and, what did he say to you?
A. I told him I was sorry , I'd have to pull his time card and he asked me
why? I told him why and that was about all that was said . I told .him
he'd have to wait to see Mr. Kurtz. He said, well ; he said, "If you're going
to send me into Mr. Kurtz, I'm just as good as finished anyway, so," he
said , "You can mail my check to me." And that is the last I seen him.
On cross-examination Danbert testified that he did not talk to Kurtz before
Thompson left the plant because Kurtz "wasn't there right at that moment,"
and further testified :
I didn't fire Tony Thompson . I pulled his.time card and told him that
he would have to see Mr. Kurtz, that . I was going to pull his time card and
take him into Mr. Kurtz. He took it on himself to leave and his check sent
to him.
Danbert further testified that Thompson showed inefficiency in other work
but was only able to give one instance , that being Thompson 's inability to "tap
a tank car" which necessitated Danbert being "called out from home" during
the night.
Danbert also testified that all three mixers were operating during the last
shift Thompson worked ; that it was . impossible to merely remove one pump
and replace it with another but that "you had to disassemble it and reassemble
it." In . this he of course contradicted Dahigren. Regarding Dahlgren he also
testified that he could not recall seeing Dahigren in the plant . on the morning
Thompson was discharged.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUDING FINDINGS
Dahlgren, the principal witness called by the Respondent to sustain ifs con-
tention with respect to Thompson's discharge, testified that the discharge took
place on January 25.
Galinet, called to corroborate Dahlgren, failed to establish the date from the
Respondent's records, admitted that Thompson's time card bore an erroneous
date not made by Thompson or the mechanical recorder, and admitted that the
discharge was made on January 24.
Dahlgren testified in detail to a conversation in his presence between Thomp-
son, Kurtz, and Danbert, in Kurtz' office at the time the discharge was made.
Kurtz, who throughout all his testimony created the impression with the
undersigned of attempting to conceal facts by the use of meaningless and con-
fusing language, admitted on cross-examination that he was not in the plant
on the morning of January 24;° that he did not hold any conversation with
Thompson at the time indicated by Dahlgren; that he discharged Thompson;
also that he did not discharge Thompson ; that he authorized Thompson's dis-
charge ; that he merely authorized his transfer from the maintenance depart-
ment; that he learned of Thompson's failure on the pump repair after Thompson
had been discharged by Danbert; that he agreed to the discharge after it was
made ; and that he did not remember if his alleged conversation with Thompson
was before or after the latter's discharge.
Dahlgren testified that Thompson could have removed the defective pump
and replaced it with another. Foreman Danbert, called to corroborate him,
'testified that a pump could not be so changed but must be taken apart and
repaired at the machine.
The record is clear from the testimony of Respondent's witnesses alone that
Dahlgren's testimony with respect to Thompson's discharge is wholly incredible;
that the testimony offered to corroborate Dahlgren wholly fails to do so being
destroyed by the inconsistencies and contradictions appearing therein. The
undersigned is convinced that Dahlgren, Galinet, and Kurtz were not testifying.
to facts that actually occurred with respect to Thompson's discharge and there-
fore does not credit their testimony.
Charles Oren Burkett, the Respondent's maintenance foreman, called by the
Respondent, testified that he worked beyond his regular shift which ended
at midnight on Tuesday, January 24, until 4: 30 a. in. because "We were just
starting the mixer up from having a new one put in, and we were having quite
a bit of trouble with parts, welding parts and nuts and so forth that didn't
get out of the mixers and pumps."
. Walter Stabinski, who was the Respondent's acting night foreman on Janu-
ary 24, 1950, testified that "two mornings in a row" he reported to Danbert
that Thompson "can't do his work" but he was unable to fix the day, month,
or year when this.occurred ; that one night he called Thompson to fix a pump,
that Thompson was unable to do so and the pump was shut down for "five or
six hours."
On cross-examination Stabinski testified that the pump incident took place
on the last night Thompson worked in the plant, that at the time "the new
At another point in this Report reference is made to Kurtz' testimony that employee
Huston Adams was not promptly discharged on the morning of January 24 , because only
Kurtz had the power to discharge.
The testimony as to who had the right to discharge and any variations therefrom in
Thompson 's case becomes important in the case of Huston Adams ; the exact date is
also important. This will appear later herein.
ALLIED MATERIALS CORPORATION 1081
mixer, I believe it was in there, if I ain't mistaken," and that Burkett did not
stay over into Thompson's shift that night. On this he testified :
Q. Are you sure?
A. I'm sure of that.
Q. What time did he quit, go home that night?
A. 12: 30 I believe. That's when the afternoon shift quits, 12: 30, I think.
From his observation of Stabinski and Burkett on the witness stand and con-
sidering the character of Stabinski's testimony, the undersigned does not credit
Stabinski but does however find substantial corroboration for Thompson in
Burkett's testimony, which he credits and therefore finds that when Thompson
arrived for work, January 24, the third mixer was not operating because of
trouble with the pump and that Foreman Burkett remained for a considerable
part of the night and that both Burkett and Thompson worked on the pump.
The undersigned is convinced that Thompson was an honest witness, therefore,
on the entire record, considered as'a whole, he credits Thompson's testimony
and finds that his account of the events surrounding his discharge represents
the accurate version thereof ; further finds that Thompson was discharged on
January 24, 1950; and further finds that he was not discharged for the reasons
advanced by the Respondent.
There is added support for this conclusion in Thompson's credited testimony
to the effect that Danbert displayed no concern when first told by Thompson
of his failure to repair the pump. The undersigned believes it a fair inference
that it was only after Foreman Virgil Adams disclosed the conversation between
Huston Adams and Thompson in the boiler room, and Thompson's interest in.
the Union was known, that Danbert seized upon the pump incident as a pretext
for Thompson's discharge.
The undersigned so finds.
3. The discriminatory discharge of Huston Adams
Huston Adams was employed by the Respondent as a laborer from July 15,
1949, until January 24, 1950, at which time he was discharged. As has been
found herein, Adams obtained his job with the Respondent through Foreman
Virgil Adams.
Adams attended the union meeting in Hatcher's home and thereafter was
active in its behalf by talks with employees and seeking signers to application
cards. ,,
Adams, whose work shift began at 8 a. in., testified that on January 24 he
arose at 5 a. in. and :
Well, after I got up that morning, I was in the habit of doing a lot of
times, I went and taken me a couple of swallows of whisky.
Trial Examiner ProsT. Before breakfast?
The WITNESS. Yes, sir, that is right.
11 *
Adams further testified that he arrived at the plant "right after 7 o'clock";
went to the boiler room to change into his working clothes and there met Thomp-
son, and entered into a conversation with him, his account corrobating Thomp-
son's version of the same incident. Adams testified :
A. Me and him spoke a few words in there and then I said to him, I said
of course, I have talked to Tony, in fact I had been talking to. Tony and
got him to agree to be in our union with us. I asked him, "Tony, do you
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know how our union is going and how many , cards we got ?" And we was
talking and we counted up-maybe 17'that morning , we had thought-that
had cards in. And we was talking about a few more that we might get
some. At the time he was saying that ,. why; Virgil Adams, he pushed the
door open right quick and we was standing right there at the door, and we
hushed and that was about all we said. I said, good morning to Virgil
and if he answered , I didn't hear him.
According to Adams he worked together with employee Maurice Ott at a
machine which carried ingredients ' to the mixing tank and that shortly after
he began work , which was at 8 a. in., Foreman Virgil Adams entered into a
conversation with him. Adams testified :
As me and Virgil was talking , we was very close together there, and
he noticed my breath smelling whisky on me. He said to me, "Mr. Adams,
you watch that breath now,"
He say, "Don 't let the big men see on you," he says , "They are getting
tight on this drinking ." I said, "Okay, no more than I drink , Virgil, it
couldn 't harm anybody."
Adams, according to his testimony , continued to work with Ott until "between
10 and 1.1 o'clock" at which time Foreman Adams put him to work on a grinding
machine where he remained until shortly before quitting time, Foreman Adams
then sending him to work in the drum shed as the grinder was overheated.
At the close of the shift Adams was discharged ; with respect to his discharge
Adams testified :
A. He was ready to go out. We went to the clock to punch out and we
didn't have our cards there . Seen there was a bunch of them gone. Virgil
Adams-was not too far from me'and I called to him and says , "Virgil where
is the cards at?" He made a step or two and he says, "Mr. Adams see
Charlie Kurtz up at the office , he's got them up there." - I said all right, and
-Maurice he goes with me. We walked on up and walked in. Charlie said
to me, he said , "Well, Adams , they tell me you were drinking in the shop on
the job." I said no sir . He says, "You 're not drinking , then, on the job?"
And I says, "No, sir ." I says, "Charlie , I won't lie to you. I taken two
swallows of whisky this morning before breakfast before I come to work."
Well, then , a few words and he says, "Adams, I hate to do this, but
looks like I am going to have to let you go." I says, "All right."
'Adams testified further that after leaving the office :
I walked on over where Virgil was and I said to Virgil , "You -know, I am
not fired for taking two drinks of whisky this morning ." So he looked at
me and he says, "I'll be frank with you, that is not it."
"But it going to be tended to now," he said, so I hushed and he did too.
Before he left Adams spoke to Foreman Virgil Adams asking the latter, "Have
I made you a hand here, have I done my duty?" , The foreman replied, "You
certainly have, you made as good a hand as we've had."
With respect to the circumstances surrounding Huston Adams' discharge, his
immediate foreman , Virgil Adams, testified :
A. Mr. Adams came in and I started him out on production downstairs,
which is feeding the material into the conveyors . Or, that was my intention
to start him off. I happened to notice Mr. Adams was drinking . I don't know
how much , but I asked him was he drinking . He said he 'd had a couple of
ALLIED MATERIALS CORPORATION 1083
shots before leaving home. So, I figured he was drinking a little too much to
work around the conveyors . We had had some grinding to do, we were
changing materials , to a material which they called Ford C., which required
ground asbestos from a different source from what we were using. So,
I-that was Mr. Adams ' job that we had been using him on . I talked to
him and walked on back to the grinder . He said he'd have to place some bags
up there before starting. He did and staggered a little. I knew he was
drinking too much at the time and so I decided not to put him on there.
So, we had some unloading to do from box cars. I put Mr. Adams helping
on the trucks , and I reported his condition to Mr. Jack Dahlgren.
And he said , well he didn't do anything about it at the present time, until
Mr. Kurtz arrived . So, we kept Mr. Adams, as I remember , unloading the
balance of the day.
According to Foreman, Virgil Adams that afternoon he reported to Kurtz,
telling him what he had told Dahlgren that morning, namely, that Adams "was
drinking when he came on the job," and suggested that Kurtz discharge Huston
Adams.
The Respondent adduced testimony that only Kurtz had the right to discharge
and also that Kurtz was not in the plant on the morning of January 24. Kurtz
testified that he did not come in that day until 2: 30 p. m1°
On cross -examination Foreman Adams denied that he told Huston Adams
not to let the "big man " get a "whiff" of his breath ; he also testified that Huston'
Adams was-already at work on the conveyor when he first spoke to him; that
when he transferred him to the grinder and walked to the grinder with him he
then noticed that Huston Adams "staggered a little" in getting material to the
grinder in preparation for starting . He testified that :
I says, "Mr..Adams, - I believe you should do some other kind of work."
As best I remember , that's what I said . And I helped,him-had him push the
carts in from the box car into the conveyors, .. .
Edward Danbert , the. Respondent's maintenance foreman , testified that "im-
mediately after 8 o'clock":
I don 't recall who it was, but somebody come up and told me that I should
go to the back end, that the grinder would not run . I went to the back
end, all that was wrong, was the relay was out. I pushed the relay in to
start the grinder and I noticed that Mr . Adams was sort of unsteady, and
at the grinder . I was afraid he was going to get hurt. So I went and told
Virgil Adams , production foreman about it and asked him to transfer him
into a different job away from that grinder, because I was just scared to
leave him there.
Danbert was asked:
Q. Did you talk to anyone else that morning ? [About Huston Adams]
A. Just Virgil Adams, the production foreman.
Q. Do you know whether or not he was transferred?
A. That, he was.
Q. Do you know where he worked after that?
A. He worked in the warehouse at the back, on the raw materials , during
that day.
xo The effect of this testimony on Respondent's testimony with respect to the discharge
of Anthony Thompson has been previously discussed herein.
1084 DECISIONS • OF NATIONAL LABOR RELATIONS BOARD
Jack Dahlgren " testified that he was informed by Foreman Virgil Adams
"that he had a man on the job who had been drinking" ; that he then went to
where-Huston Adams was "working on the grinder there or starting to work
there" and that Huston Adams appeared to be in an intoxicated condition, "his
eyes were bloodshot, his speech slurred and he had a,very unsteady stance, he
was unable to.stand steady. He more-or less staggered." Dahlgren testified that
be asked Huston Adams "how long it had- been since he had a drink" and was
told by Huston Adams that "he had a couple before he come to work." Dahlgren,
according to his testimony, "told Virgil to put him somewhere where he wouldn't
be hurt" and Adams was put to unloading a box car of bagged material. He also
testified that he did not either discharge or reprimand Huston Adams because
only Kurtz had that authority and that Kurtz was in the plant. Kurtz arrived at
about 2: 30 p. m.
Dahlgren testified that the box car to be unloaded was outside the building;
that he followed Huston Adams to the car outside the building; that Huston
Adams staggered as he walked ; that he got inside the car, stepping up on a cart
and a pile of bags in order to get into the car; and that from the outside he
observed Adams pick up the filled sacks and set them in the doorway.
Dahlgren further testified that outside the car "there were some other laborers
who were-had the stock truck, they would take the sacks out of the doorway
and load up the stock trucks and take it inside and pile it up." Dahlgren testified
that there was another man in the car working with Adams ; that he observed
the work for "three or four minutes" and that "for every four that Adams set
down ," the other "set six."
• Dahlgren further testified that "pretty close to lunch time" he walked past the
box car, on the side away from the building and through the open door he saw
Huston Adams sitting on a sack inside the car.
Foreman Adams testified that after he discovered Huston Adams' condition he
put him at "pushing the carts from the box cars." He was asked :
Q. Now, did he do that the rest of the day?
Foreman Adams answered :
A. Yes, sir, as best as I remember, he did. I don't remember of changing
him.
Foreman Adams testified that : "I didn't put him [Huston Adams] in the box car."
Charles Kurtz, the plant superintendent at the time, testified that he first
learned of Huston Adams' intoxicated condition from Dahlgren, and that he
thereafter discussed it with Virgil Adams and Danbert.
Kurtz testified that on January 24, he did not arrive at the plant until about
2:30 p. m., and that Dahlgren who shared his office reported Huston Adams'
condition. He testified on cross-examination :
Mr. Dahlgren stated that Huston Adams' speech was irregular, his getting
around was clumsy and that Mr. Adams had personally told him he had a
couple of shots of liquor before coming to work; and that his eyes showed
signs of the same.
Kurtz further testified, also on cross-examination, that :
Mr. Danbert's story was that he tried to help Mr. Adams get the grinder
started, and going that morning, which was more or less the usual procedure.
That during this time, he found him to be in a rather stooped position or
condition. That he wasn't careful as he had been, that he showed signs of
clumsiness and that the scent of liquor was very strong.
' Now assistant sales manager ; at the tinre assistant superintendent.
ALLIED MATERIALS CORPORATION 1085
Kurtz testified also :
Virgil Adams reported. to, me that he immediately-after 8 o'clock, he
found Huston Adams back by,the asbestos grinder,' making preparations to
get it started. At which time he said he noticed Mr. Adams' actions as being
very unsteady. That his eyes showed an impaired" condition, they were
blurred, and that his speech was irregular. That's what Mr. Adams told
me, Virgil Adams.
Kurtz' testimony continued :
Q. (By Mr. CORENMAN.) Did you inquire from Virgil what duties he had
assigned Huston to perform that day?
A. Yes, I did.
Q. What did he tell you?
A. He told me that he had taken him from the grinder, due to the fact
that he was afraid he might get his hands or-well, receive some sort of an
injury there, that he wouldn't be near so liable to receiving somewhere else.
And he moved him for that reason exactly. Placed him on a job that had
a lot less responsibility, shall we say.
Kurtz however was not able'to recall on what job Adams had been placed.
Kurtz testified that Huston Adams had never been reported for drunkenness
before. He also testified that he talked to the three company officials individu-
ally.
Kurtz testified that he did not speak to Huston Adams until he was ready to
release him immediately before he was discharged. Kurtz testified :
A. I said to Huston Adams, I said, "It is has been reported to me, Mr.
Adams, that early this morning you were reported in an intoxicated condi-
tion." That it definitely. was-well, it was a matter of danger to himself
as well as anyone else in the immediate vicinity. I said this report came
from three people, namely Jack Dahlgren, Virgil Adams and Ed Danbert.
After hearing all three of their opinions, and finding-that they were the
same, I had no alternative but to release the man. And, I did so that same
afternoon at 4: 30.
Kurtz testified further that he discharged Adams on "my own discretion."-
Walton Moore testified that he was in Kurtz' office during the discussion regarding
Adams and that :
... Mr. Kurtz turned around to me and asked my advice on what to do
about it.
I said, "Fire the man."
Q. (By Mr. YoE.) Was he discharged on your recommendation, as far
as you know?
A. Yes.
SUMMARY
Walton Moore, the Respondent's vice president, was the first witness called
by the Respondent. Moore testified that on January 24, he had just arrived
on one of his periodic visits from Oklahoma. This has been found to be incon-
sistent with Moore's testimony that he supervised the installation of the mixer.
Moore testified in great detail that while he was in the office with Kurtz he heard
a conversation between Kurtz and Dahlgren who had "cornered Kurtz in his
office," in which Dahlgren told of Adams' drunken condition, expressed fear for
his safety, told Kurtz that Adams, was not discharged because no one there had
the authority to do so, and reported the action taken by the general foreman.
1086 DECISIONS- OF".NATIONAL-LABOR ' RELATIONS BOARD
Finally Moore was asked for advice by Kurtz, and then according to his testimony
ordered Kurtz to discharge Huston Adams.
In his testimony Kurtz made no mention of Moore's presence or order and
testified that Adams was discharged on his (Kurtz') sole initiative and authority.
Dahlgren, who bore the title of assistant to Kurtz, and who together with his
parents, owned a very substantial interest in the Respondent Company testified
that after Foreman Virgil Adams told him of Huston Adams' condition he went
to the grinder where Huston Adams was working, observed his condition, and
then advised the foreman. to remove him to another job and that he followed
Huston Adams to this new job and saw him getting into a box car to work, ob-
served him working in the car, even comparing Adams' performance to that
of another employee working in the car, and further testified that later in the
day he again saw Adams in the box car.
Foreman Virgil Adams testified that he did not put Huston Adams to work
in the car, but had him push trucks from the car in the building. He testified
that he took Adams off his regular job which was shoveling material into a con-
veyor because in his condition he felt the work too hazardous and transferred
him to a grinder which the Respondent proved to be a very dangerous machine;
however, Foreman Virgil Adams testified that he did not permit Huston Adams
to, begin work on the grinder because of his condition, but Dahlgren testified that
he went to the grinder where Adams was working, only after Foreman Adams
reported the employee's drunken condition and Maintenance Foreman Danbert-
testified that he was called by Huston Adams to start the grinder and observing'
his condition he reported it to Foreman Virgil Adams who transferred the man
-.to another job which was work in the back of the building.
.'Kurtz testified that Danbert'reported Adams' condition to him. Danbert testi-
fied that he reported the incident only to.Foreman Virgil Adams.
Foreman Adams was not asked to deny Huston Adams' testimony to the effect
that Huston Adams spoke to him in employee Thompson' s presence in the boiler
room before work began on the morning of the discharges.
Considering the glaring contradictions in the testimony of the Respondent's
witnesses regarding' Huston Adams' discharge, contradictions which are, not
those a trier of fact ordinarily expects from various individuals who casually
observe the same event, but which are of such nature as to create the impression
that those called to corroborate each other are in reality testifying to different
events, and considering also his impression of the witnesses on the stand the;
undersigned is unable to credit and does not credit the testimony adduced by
.the Respondent to'tl'e effect that Huston Adams was in a drunken condition .at
the time he began work on January 24, 1950.
The undersigned has found herein that Foreman Virgil Adams overheard a
conversation regarding the Union between Huston Adams and Thompson on the
morning of January 24, and has inferred that he reported this to Foreman Dan-
bert. The undersigned has found that after this report Danbert promptly dis-
charged Thompson. The record shows that Foreman Virgil Adams and Huston
Adams were then, and are now, very friendly, the undersigned infers that
Foreman Adams did not discharge Huston Adams because of the friendship
existing between them but was compelled to do so on the arrival of Superin-
tendent Kurtz. The undersigned is not persuaded that only Kurtz had the right
to discharge.
Huston Adams freely. testified that he had taken two drinks of whiskey before-
coming to work. It is apparent that he did so almost. 3 hours before Foreman
Adams transferred him to the grinder and allegedly observed him to be drunk.
Huston Adams impressed . the undersigned as being a reliable witness. His
ALLIED MATERIALS CORPORATION 1087
'testimony was forthright. The undersigned therefore credits his testimony and
finds that his account of the events surrounding his discharge represent the ac-
curate version thereof and finds that Adams was not intoxicated when he 're-
'ported for work on January 24, 1950; that he started to work at his regular job
on a conveyer together with Maurice Ott ; " that he was then transferred to work
on a grinder and that he worked at this machine until shortly before the end of
his shift.
On cross-examination by the Respondent, employee Huston Adams testified :
Q. Do you remember him [Dahlgren] asking you how much you had to
drink that morning?
A. How much f had to drink? '
Q. Yes.
A. That man never mentioned a thing to me in my life, did you? 1H-
Trial Examiner PLOST. You let the attorney ask the questions, Mr. Adams.
'Mr. YOE. He will have his turn up there too. That is all.
The undersigned credits Adams and finds that Dahlgren did not talk to Huston
.Adams on January 24, as Dahlgren testified. '
The undersigned credits the following testimony of Huston Adams :
I walked on over where Virgil was and I said to Virgil, "You know, I am
not fired for taking two drinks of whisky this morning." So he looked at me
and he says, "I'll be frank with you, that is not it."
"But it's going to be tended to now," he said, so I hushed and he did too.
On the entire record, considered as a whole, including' his observation of the
witnesses the undersigned finds that the reasons advanced by the Respondent
for'the discharge of Huston Adams on January 24, 1950, are not the real reasons
'for said discharge.
4. The discrimination against Maurice Ott
Maurice Ott was employed as a laborer by. the Respondent some time in August
1948. Ott testified that during the last several weeks of his employment with
the Respondent he worked at a mixer, his job being to pour theproper ingredients
into a hopper from which it was carried by an elevating device to the mixing tank
located on an upper level ; that Huston Adams was his regular helper and that
on January 24 he and Adams began work together, but that at 10 or. 11 a. in.
Adams was transferred to the grinder, being replaced by Roy Hearld. Ott testi-
'fied that at the time Adams was ordered to the grinder. he (Ott) protested to
'Foreman Virgil Adams telling him that if he could not -have Adams as a helper
he would rather work in the "drum shed," but that the foreman pointed out
that Huston Adams was the best man he had for the grinder operations." Ott
testified that in connection with the operation of the machine he was. required
to fill out a report, known as a "usage report," showing the various materials
put into the mixtures. It was Ott's custom to fill out the report "when the last
batch came off."
Ott testified that on January 24 he did not make out the report, he testified:.,,
It skipped my mind that day, I didn't have the time and it skipped my
mind. Virg never said nothing about it, so too late, I didn't have time to• make
the usage report out. .
12 Ott testified that on January 24, Adams worked with him until sometime . between
10 andiia.m.
11 The last -two words were addressed to Dahlgren by the witness.
14 Ott further testified that on January 24, Huston Adams was sober .. The undersigned
credits Ott's testimony in this respect.
1088 DECISIONS..OF NATIONAL LABOR- RELATIONS BOARD
Ott further testified that at quitting time he could'not find his card in the rack;
that "some one hollered Maurice, Kurtz want to see you" ; that he and Huston
Adams, who also could not find his card, went to Kurtz' office ; that Kurtz then :
A. Said, "You didn't make your usage report out." I told him it skipped
my mind. He didn't just bring that up. He says, "Maurice, you've always
been a good worker around here, I hate to fire you." He thought it over
for a while. He says, "I'll tell you what I will do. I will give you what Earl,
used to be foreman upstairs before Charlie Kurtz," he said, "I will give
you a week off."
Q. So did you remain off work a week without-pay?
A. Yes, sir.
Ott returned after the week was up and was put back on his regular job.
As will appear hereafter Ott's employment was terminated again, however,
before entering into this latter phase of his employment the undersigned will
consider the alleged discriminatory layoff of January 24.
Superintendent Kurtz testified : -
After hearing foreman Virgil Adams' report that Ott had failed to make
out necessary usage reports for that day, I called Ott into the office. I
explained to him that he had been with the organization for a couple of
years, and that certainly I had nothing in the world against him, but that
I would like for him to straighten up. That considering everything, I felt
a week's disciplinary action would possibly then do the trick of straightening
him up, and it was agreed then and there that he take a week off, starting
January 24th and report back February 1st.
On cross-examination Kurtz also testified that he ordered Ott's time to be
made up at the same time he ordered Huston Adams' time made up, which he
fixed at about 3 p. in. on January 24; the same day that Adams reported Ott's
failure to make the usage report. Kurtz admitted that the usage report was
made at the time the last batch was put in the. hopper, which would be at
.approximately 4 p. m.
Kurtz testified:.
Q. I think you stated early in the afternoon, about 2: 30?
A. Yes.
Q. Wasn't that the time you instructed the timekeeper to make out the
time for Huston Adams and Maurice Ott? -
A. No, I instructed him to make out the time for Huston Adams and
it was a little later than 2:30, because I talked to all three of these other
men first, before I made a decision, Mister.
Q. Well, how much later than 2:30?
A. Quite sometime, I can't recall the exact period.
Q. Well-
A. I don't know exactly, but it took some time to discuss those points.
Foreman Virgil Adams testified that he had been informed that Ott was
not following orders, accordingly on January 24; when he received the report
he talked to Ott, who among other things told Adams that he no longer intended
to make out usage reports ; Adams testified, "So I taken that up with Mr. Kurtz
that afternoon." Adams further testified as follows, .the. quoted testimony
being from his direct examination by the Respondent :
Q. Do you know whether he made out a usage report that afternoon?
A. Yes, he did.
ALLIED MATERIALS CORPORATION 1089
Q. What conversation did you have with Mr. Kurtz concerning Maurice
Ott?
A. I explained that-
Q. Was this on the same day of Mr. Ott's lay off , so-called?
A. Yes, sir.
Q. All right . State for the record what it was?
A. I just told Mr. Kurtz what happened , about the argument I had with
Maurice. Which I'd had one or two before that, not serious . And I was
getting tired of the man not taking orders. I recommended something be
done with him. He said he would take care of the matter.
Adams further testified that he did not recommend that Ott be discharged
or given disciplinary suspension but, that he only made a comment to Kurtz
expressing his approval of the layoff after it was made . Adams remained firm
in his testimony that Ott made out the usage report on the last day of his
employment , testifying as follows :
Q. Do you know that Kurtz testified here that he let him go because he
didn't make. it out that day, that he give him his five day disciplinary sus-
pension because he did not make out the usage report that day?
A. I swore to tell the truth here and that's why I'm-what I am trying
to stick to . I wouldn't pull away from it.
Q. You will swear that Maurice Ott did make out a usage report that
day, is that correct? '
A. Yes, as best as I can remember , Maurice Ott made the usage report out.
The testimony of Kurtz and Adams wherein Kurtz maintained that he meted
out a disciplinary layoff to Ott because of Ott's failure to make out the usage
report on . January 24 ; that he did so on information and complaint by Foreman
Adams; that the layoff was ordered before the time the usage report was
customarily made ; being considered with the testimony of Foreman Adams
that Ott did make the usage report and that Adams did not recommend dis-
ciplinary action ; might be easier to evaluate were it not for the further com=
plication created by Ott's testimony that on January 24 he forgot to make out
the usage report, and that Kurtz told him his layoff was because he failed to
do so.
In this confusion one can only infer that the failure to make the report was
not in itself a very serious matter especially so inasmuch as the undersigned
must consider as a further complication the testimony of Vice-President Walton
Moore with respect to the action taken by the Respondent against Ott.
Vice-President Walton Moore testified that when the new mixer , hereinbefore
referred to, was installed between January 20 and 23, he was personally in
charge of the work ; that 20 to 30 men were employed on this job during each
shift ; that except some of the supervisors "Maurice Ott is the only man that I
could positively identify as working with me at that time" ; that Ott worked as
a laborer , which in fact was Ott 's regular job; that at 10 p. in . Moore suggested
that Kurtz go home while he remained around the clock, and that Kurtz left
the plant ; that "some time after midnight and before day light " he instructed
Ott to clean up some clay which had been thrown on spilled oil "to soak it
up" and that 5 minutes later he found Ott in the back of the building smoking,
not having done the job he had been told to and ordered him back to work;
that on two occasions later in the night Ott again left his work and Moore
sent him back to his work, telling Ott to "stay where he was put" and "stay
on the ball" ; that he had no trouble with any other employee save Ott during
the installation of the mixer.
1090 DECISIONS: OF 'NATIONAL -LABOR RELATIONS BOARD
Moore further testified :
A. The next morning when Mr. Kurtz came into work, I asked him what
the name of the little fat boy that, was working on the shift last night with
me was and lie said it was Maurice Ott and I recommended then and there
that he fire the man,. because he just-I just couldn't keep 'him working.
He said, "I'll take care of it." That was all I knew of the situation for
several weeks.
Kurtz,_ in reply to a leading question, however without objection by the Gen-
eral Counsel, after first testifying that Ott "had been given a_weeks disciplinary
layoff" because he "had failed to make out usage reports," testified further as
follows:
Q. (By Mr. Yoa.) Have you, ever discussed the matter of Maurice Ott
with Walton Moore?
A. Yes, I had.
Q. What conversation did. you have with him?
A. Mr. Moore brought to my attention that he had several little run ins,
shall we say, with Mr. Maurice Ott, wherein he had a little difficulty in keep-
ing him on the job, or alerted.
Q. Had you discussed the matter of discharge with him?
A. As a matter of fact, Mr. Moore recommentded his discharge to me. [Em-
phasis supplied.]
Moore's testimony with respect to his difficulties with Ott after midnight, on a
shift during the installation of the third mixer, which has been found to have
been installed between January 20-23, and Kurtz' corroboration is more than
amazing to the undersigned inasmuch as Ott's time card introduced in evidence
shows that during the period of January 16, 1950, to January 24, 1950, inclusive,
Ott uniformly rang in his card not earlier than between approximately 7: 50 a. m.
and 8:.30 a. in. and rang out at approximately 4: 30 p. in. with the exception of
January 21, when he rang out at 2 p. in. and January 24, his last day which shows
no quitting time at all."
The regular shift was from 8 a. in. to 4: 30 p. in.
Ott denied Moore's testimony.
• ` On .the entire record the undersigned does not credit the testimony, of Moore,
Kurtz, and Virgil Adams with respect to Ott's layoff.
On the entire record the undersigned finds that Ott was not laid off because
he was ordered discharged by Moore for not doing his work, nor was he laid
off because he failed to make out the usage report but that Ott's layoff beginning
January 24, was for other reasons than those advanced by the Respondent.,
Moore further testified that some time in February, following his recommenda-
tion with respect to Ott, he overheard Kurtz and Dahlgren discussing a list of
men marked for layoff, among the names mentioned was Maurice Ott. He testi-,
fled as follows :
A. As I have stated, Mr. Kurtz and Mr. Dahlgren were discussing, and I
believe, making a list of the men who were to be laid off. I heard Maurice
Ott's name mentioned. I interrupted and asked Kurtz, or commented to,
Kurtz that I thought the man had been fired last month or previous to that.
I inquired into the circumstances, why he wasn 't fired , as per my recom-
mendation?
Q. What did Mr. Kurtz answer, if anything?
u It should be recalled that Ott did not ring out his card'on that day as it was removed
from the rack. On January 21, Ott's card shows that he worked only 6 hours.
ALLIED MATERIALS CORPORATION 109L
A. Mr. Kurtz said that he thought the case over and decided that he would
give him a chance and see if he couldn't-if a disciplinary lay off wouldn't
improve his work, but that it had not done so.
Q. It was your understanding then, that although you requested Mr. Kurtz:
to fire Maurice Ott because he shirked his duties on the night you were
supervising, instead, he only gave him a five day disciplinary suspension, is.
that correct?
A. I didn't request it, I recommended it. That is correct, that that's all,
he gave him. You say five days, I don't know what he gave him: off. L
know the man was off. Then he was permitted to come back to work.
Moore in answer. to question put to him°a few minutes after the above testimony
testified further :
Q. Did you then direct him [Kurtz] to fire Ott immediately?
A. No, I didn't direct him to fire Ott at any time.
Kurtz testified that Moore recommended Ott's discharge, and that Ott was.
discharged after he had returned from the 5-day layoff because he "had failed to.
comply with order from his foreman and his foreman reported this condition.
to me." Kurtz was plainly confused with respect to Ott's layoff and final ter-
mination and his testimony is not clear thereto.
Foreman Adams testified that Ott's work was not' satisfactory after his re-
turn. from the layoff.
Ott testified that on February 28 he was taken from his job on the mixer and.
together with Harold Haney was sent to the yard to fill a ditch. The ditch had.
been open for more than 2 months. The weather was cold, rain and sleet were-
falling while the men worked at the ditch.
Haney corroborating Ott as to the condition of the ditch and the weather,.
testified that the day was "about as bad a- day as you'd see." Haney further
testified that as they worked Foreman Murphy "laughed, just like he was making.
light of us." -
None of the testimony with respect to the incident above referred to was denied:
and is credited by the undersigned.,
Ott further testified that at the 'end of his shift he was laid. off by Foreman.
Adams 16 who told him it was caused by lack of orders and assured Ott that
when business improved, he would be called back.
Ott further testified that later he returned to the plant, having learned that
employees were being recalled and was told- by Kurtz that he (Ott) "was better
off drawing unemployment compensation." Some 3 weeks following this visit
Ott again visited the plant and talked to Kurtz. He testified as follows:
A. . . . I says, "How come I haven't been called back yet?" And, he
says, "Well, I-" and I said, "On account of union activities?" And he said,
"No, no, it ain't on account of that." And I says, "Why" and he says, "You
really want to know, I'll go get Virg." So he went in the back and got Virg
and Virg came in and I asked Virg. And Virg give me the idea, he says,
"Well, Maurice, you've been slipping lately in your work." I says, "Well,.
it looks to me like I'm fired." Then he finally admitted that I was fired.
Ott was an honest and forthright witness.. The testimony of Moore, Kurtz,
and Foreman Adams is filled with obvious contradiction and in some respects
seeks to establish wholly impossible events. Neither Moore, Kurtz, nor Adams
Impressed the undersigned as testifying truthfully. On the entire record, as well
Is The layoff of February 28 was apparently general , throughout the plant.
961974-52-vol. 95-70
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the testimony which the Respondent adduced with respect to the causes for
Ott's termination , the undersigned does not credit the testimony of Moore, Kurtz,
and Foreman Adams and does credit the testimony of Maurice Ott and finds that
Ott's account of all the circumstances surrounding his layoff on January 24 and
his termination on February 28 represents the accurate version thereof.
The undersigned further finds , that in'reality Ott was not laid off on February
28, but was in reality discharged inasmuch as there was no intention on the part
of the Respondent to recall him to work.
The undersigned further finds that the Respondent did not discharge Maurice
Ott on February 28, 1950, for the reasons assigned by it, but for wholly different
reasons.
Conclusion
With respect to the discharges of Anthony Thompson, Huston Adams, and
Maurice Ott the undersigned having found that neither of them was discharged
for reasons advanced by the Respondent , there remains for consideration only
the reason advanced by the General Counsel.
In considering the contention of the General Counsel that the three employees
were discharged because of their union affiliation and activity the undersigned
is mindful that the record discloses that all three men attended the meeting in
Hatcher 's home ; that all became active on behalf of the Union ; that Foreman
Virgil Adams overheard a conversation regarding the Union , between Thompson
and Huston Adams; that Ott solicited the membership of Roy Hearld and gave
Hearld an application card for union membership which the latter gave to Kurtz,
also disclosing the incident to Foreman Adams; that all were . terminated on the
same day; that various supervisors have been found herein to have engaged in
conduct violative of the Act ; that the testimony of the Respondent 's vice presi-
dent and those called to corroborate him was so contradictory as to be wholly
preposterous and also, the undersigned is mindful of the following undenied
testimony which is uncontradicted and credited :
Paul Higgs testified that Foreman Charles Burkett entered into a conversation
with him regarding Haney and Ott who had been put to,"filling a ditch in the
rain in the back." Higgs testified as follows :
Q. And what did Burkett say to you about this incident?
A. Well, he said-well , he just told me to put him out there, you know,
because they were passing out the cards?
Q. You mean the union cards?
A. Union cards.
The undersigned is convinced and finds on the entire record considered as a
whole, including his observation of the witnesses , that the General Counsel's
contention that Anthony Thompson , Huston Adams , and Maurice Ott were dis-
charged because of their membership in and activities on behalf of the Union,
is well sustained by the record, and finds that on January 24, 1950 ,. the Re-
spondent discriminatorily discharged Anthony Thompson and Huston Adams in
violation of the Act, and that on January 24, 1950, the Respondent discrimina-
torily laid off Maurice Ott and discriminatorily discharged Ott on February 28,
1950 , in violation of the Act . The undersigned finds that by said illegal conduct
the Respondent has discriminated in regard to the hire and tenure of the em-
ployment of Thompson , Adams, and Ott, has discouraged membership in a labor
organization , and has interfered with , restrained , and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act.
ALLIED MATERIALS CORPORATION - 1093
5. Additional acts of interference , restraint , and coercion
James Hatcher testified that between 12: 30 and 1 a. m. on January 25 , Super-
intendent Kurtz spoke to a meeting of employees in the plant ; that . there were
about 16 employees present, 10 of whom were recently , hired ; displaced persons
who could not speak English . These were all rank-and-file employees and ap-
parently laborers . Present also among the 6 others were the following super-
visory and other officials , Jack Dahlgren , Charles Burkett, Walter Stabinski,
Robert Arnold, a . laboratory assistant, and Johnson , a salesman , and, of course,
Kurtz. None of these named above except Stabinski worked the hours of the
shift addressed by Kurtz. Hatcher further testified that Kurtz spoke in English
and that employee William Mach acted . as interpreter and translated Kurtz'
remarks into Polish for thee-benefit of the "Displaced Person" employees.
Hatcher testified :
He -was more or less talking to the D. P.'s." He had William Mach as
interpreter for him. He told William Mach to ask the D. P.'s if they had
signed union cards.
Hatcher further testified that the displaced persons , were told that if they were
to join the Union "the pension plan wouldn 't be in Effect and they ' d have to close
the plant down." Hatcher testified that he was stating only what he heard
Kurtz tell Mach to tell the Polish speaking employees . Hatcher does not under-
stand Polish . Hatcher also testified that Mach was told by Kurtz to tell the
"D. P.'s" that they had not been employed in the plant long enough to draw
unemployment insurance , when laid off, that the plant would lay off employees
because of the strike then current at the Chrysler plant but that they would be
recalled , that a part of the Respondent 's pension plan was read by Mach, in the
Polish language, further that. there were employees in the office who would inter-
pret anything they might be asked to sign, and that "'if the Union came in" the
plant would close down.
Robert M. Arnold , called by the Respondent , testified that he was an assistant
to Robert S. Hillerman, the Respondent 's chief chemist ; that he was in the plant
and heard Kurtz' speech but came to.the plant not to hear the speech but to
take his brother-in-law home from work ; that he heard Kurtz say as part of
his talk to be interpreted:
... "Be careful what you sign." And, "if you need anything explained,
come to the office and we will be glad to explain it...."
Dahlgren testified that he was present at the meeting when Kurtz talked to
the Polish speaking employees through an interpreter ; that he came to the meet-
ing from "a normal amount of interest • to be shown by an employee of the
company and also I was interested from a personal standpoint as to what was
going to be said" ; that the purpose of the meeting was "to inform these Polish
fellows" that layoffs were necessary ; that the shift was shut down 25 or 30
minutes early and that Kurtz then spoke. Dahlgren testified :
A. He had Bill Mach as an interpreter and through Bill Mach , lie spoke
to these •Polish D. P.'s. He stated that due to the lack of business, we had
no work for them at the present time. But as soon as our orders picked up,
they would be recalled and put back to work as fast as possible . And then
he had Bill Mach read the Pension Plan, since this was our first opportunity
to inform these boys that the company did have a plan like that . Also told
them that if they had any documents or other things they couldn't under-
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
stand, that were written id English, if they wanted to bring them to the office,
we'd be only too glad to help them or at least take them to somebody who'
could help them.
On cross-examination Dahlgren further testified inter alia that delivering the,
talk to the D. P.'s was Kurtz' idea ; that he had been told of it during the after-
noon and discussed the subject matter of the speech with Kurtz then and further-
that "just before" the delivery of the talk it was decided to tell the Polish speak-
ing employees that they could have any documents they received interpreted:
and explained in the Respondent's office.
Foreman Virgil Adams testified that he came into the plant during the time
Kurtz was speaking to the employees ; that he did not hear the talk, as,he was-
"just in and out," having come there merely to get some of his "belongings" out
of his locker.
Kurtz testified that he called the meeting above referred to which was the only
time a meeting of this character had been held in the plant ; that the purpose of
the meeting "was to notify all the employees especially the displaced persons"
that due to the strike at the Chrysler plant it was necessary for the Respondent:
to reduce its force ; that this was told the "D. P.'s" through Mach acting as his-
interpreter ; that the employees were assured they would he recalled ; that
the "entire pamphlet" on the Respondent's pension plan was -read and inter
preted by Mach. Kurtz admitted that he told the Polish speaking employees,
"to be careful what they signed" and that if they needed help "in reading docu=
ments in English and having them explained to them that we would be glad to.
help then. If not, we would send them to the proper persons that would help,
them."
Pawlo Musyk testified 17 that ' he . was first employed by the Respondent on:
January 13, 1950; " that he was laid off on January 24 or 25; that before the-
layoff at about 12: 30 a. in., Kurtz spoke to the D. P. employees through William
Mach acting as his interpreter and that the interpreter speaking for Kurtz.
explained that there would be a layoff because of the strike at the Chrysler plant,,
and further told them that "some of the workers wants the Union in" and told:
them "if there was a union, they might have. to close the factory."
There was testimony that some of the "D. P.'s" were given union cards.
Wiliam Mach testified he had been employed by the Respondent and that h6-
voluntarily quit. Mach testified that he 'acted as interpreter for Kurtz on the
night of January 25, interpreting a talk Kurtz made to' Polish speaking employees-
at that time, that at Kurtz' direction he explained that a layoff would be made-
because of the then current strike at the Chrysler plant ; that he read and ex-
plained the Respondent's pension plan; that he was told by Kurtz to tell the-
employees that "if the union came into the plant, they might not like.the company
pension plan which would force the company to discontinue their plan."
Mach also testified as follows :
Then, he asked me to ask the fellows there if they had been approached by-
any union men to sign cards and if they had signed any, if they-any of them.
knew who they were. All the people shook their heads then, said no.. And'_
also, he-some of them brought up the question as to just how soon .they
thought they'd be called back to work. If there was any orders, they'd call-
Ahem as they needed them. Then he told me to tell them that this was more-
or less of an experimental plan and so far, it had panned out pretty good, but.
1T Musyk testified that he could not speak English, his testimony was taken through.
an interpreter.
18 Apparently all the D . P. employees were employed at about this date.
.:ALLIED MATERIALS CORPORATION 1 095
:.-if-there hadn't been any union come in-if any union came in, they had been
more or less forced to close down.the plant. Not definitely, but they didn't
know for sure.
Concluding Findings
The Respondent's superintendent and his assistant, testified that the purpose
oof the midnight' meeting was merely to acquaint the employees of an impending
'curtailment in force, however, there is nothing to show that any meetings other
than the one in which the Polish speaking employees were addressed was ever
'held. ' The Respondent contends that the subject of the pension plan was taken
up because it "was a very opportune time to do so," and that the decision to offer
translation facilities, to those employees who did not speak English was made
"just before"• the talk was given. However, it was admitted that in order to
make this simple statement the superintendent and his assistant conferred during
the afternoon regarding the "subject matter" to be used. At the time the talk
was actually delivered the leading supervisory officials whose work was over long
before were present. ' Assistant Superintendent Dahlgren came in at midnight
because of "normal" interest and interest "from a'personal standpoint." The
,undersigned recalls that Dahlgren made suggestions with respect to the "subject
matter" of the.talk and makes due allowance for pride of authorship. The assist-
:ant to the chief chemist came in at midnight "to take his brother-in-law home."
The general-foreman came in "just to pick up some personal belongings."
It would seem that an unusual degree of effort was being expended to inform,
if not also to impress employees "who had not been on the payroll long, enough
to be eligible for compensation insurance" that they would be out of work for a,
while, but would be recalled.
True these employees were strangers in a strange land, unable to speak the
language, who knew the terror of'flight and who undoubtedly rejoiced at having
attained the:haven,of a friendly shore and a job, yet it may be doubted if they
expected such. solicitude and consideration from an employer they had but 9
or 10 days.
The Respondent denies that there was any antiunion motive: present in Kurtz'
talk to the employees and the version of his remarks as given by Kurtz, cor-
roborated by Dahlgren, is completely free of any improper statements, however,
Hatcher who heard and understood the English version as first delivered' by
Kurtz and, Musyk who speaks no English but who heard and understood the
Polish version as delivered by the interpreter are in agreement-on a, different
version which corroborates the testimony of Mach the interpreter as to what he
was told to interpret and what he said to .the Polish speaking employees.
Under all the circumstances, being favorably impressed by Hatcher, Musyk, and
Mach on, the stand, and on the entire record including the finding herein that on
January 24, the Respondent discriminatorily discharged three employees and the
further finding that prior - thereto the Respondent had disclosed and demon-
strated 'a well-defined illegal course of conduct with respect to the Union, the
undersigned does not credit the testimony of Kurtz and Dahlgren with respect to
the contents of Kurtz' talk to the employees on January 25 and the interpretation
thereof but he does credit the testimony of Hatcher,. Musyk, and Mach with.
respect thereto.
The undersigned finds that by Kurtz' speech the Respondent inquired into the
union affiliation of its employees and threatened them with loss of benefits in,
the event the employees were successful in organizing the Union.
The undersigned finds that by Kurtz' talk to the employees as delivered and
Interpreted on January 25, 1950, as above found in the testimony of Hatcher,
1096 DECISIONS `OF NATIONAL LABOR\'RELATIONS BOARD
Musyk, and Mach the Respondent has interfered with, restrained, -and coerced its
employees in the exercise of rights guaranteed them in Section 7 of the Act 1'
Credibility.
In this Report the undersigned has not discussed the testimony of.certain
witnesses called by both the General Counsel and the Respondent. This does not.
mean that in arriving at his findings all of such testimony has not been. fully
considered and evaluated by the undersigned, but it is not herein adverted to
for the reason that in some cases it had no bearing on the issues while in others
though of some probative value it does not add or detract from the general
conclusion.
The undersigned has largely discredited the testimony of the Respondent's chief
witnesses. The very length of this Report is caused by the analysis of such
testimony and a further discussion of the testimony is, in the opinion of the under-
signed, needless except perhaps to point out that most of the findings on credi-
bility contrary to the Respondent are based on the Respondent's own testimony.
The.chief witnesses for the General Counsel impressed the undersigned as
truthful, the Respondent's chief witnesses did not. . .
IV. THE EFFECT OF THE UNFAIR LABOh PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practice%
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
The undersigned has found that the Respondent discriminated in regard to the
hire and tenure of employment of Anthony Thompson, Huston Adams, and Maurice
Ott. The undersigned will therefore recommend that the Respondent offer each
immediate and full reinstatdment to his former or substantially, equivalent posi-
tion 20 without prejudice to his seniority or other rights and privileges and make
each whole for any loss of pay he may have suffered by reason of such discrimi-
nation by payment to each of a sum of money equal to that which each would
have earned as wages from the date of his discriminatory discharge to the date
19 Evidence was adduced by the General Counsel , withbut objection by the Respondent,
that on August 15, 1950 , an. official of the Respondent , one L. G. Harries addressed the
Respondent's employees. The General Counsel contended that Harries' talk constituted
an unfair labor practice chargeable to the Respondent. Harries testified that he addressed,
the employees; that copies of his address were distributed to the employees; that the
-talk was made in connection with an election 'conducted among the employees by the
Board 's Regional Office on the day following . Copies of the address were admitted and:
are found by the undersigned to be true verbatim reports of Harries' talk.
In the opinion of the undersigned Harries' talk did not contain any language forbidden
an employer under such circumstances. The General Counsel stated on the record that
no objections to the conduct of the election had been filed. The incident was not
specifically alleged in the complaint to be an unfair labor practice, nor was the complaint
amended to include it, however, it was completely and fully litigated.
The undersigned finds that Harries' talk as above set out was not violative of the Act.
20 The Chase National Bank of the City of New..York (.San Juan, Puerto Rico,,Branch)„
65 NLRB 827.
ALLIED MATERIALS CORPORATION 1097
of the offer of reinstatement less his net earnings 21 during such period .22 It
having been found that Ott was discriminatorily laid off on January 24, 1950,
the undersigned recommends that the Respondent make him whole for any losses
sustained by reason of such layoff, it having been found that Ott was discharged
on February 28,1950, the undersigned recommends that the Respondent make him
whole from said date until an offer of reinstatement is made him as above
recommended.
Having found that the Respondent inquired into the union membership and
activities of its employees, sought to induce employees to disclose the identity of
union members and report on union activities, thereby attempting to engage in
espionage, threatened employees with loss of benefits in the event of union organi-
zation, the undersigned will recommend that it cease and desist therefrom and
further because the Respondent's unlawful conduct and its underlying purpose
and tendency, are persuasively related to other unfair labor practices proscribed
and that danger of their commission in the future is to be anticipated from the
course of the Respondent's conduct in the past.23 The preventative purpose of
the Act will be thwarted unless the order is coextensive with the threat. In order,
therefore; to make effective the interdependent guaranties of Section 7, to prevent
a recurrence of unfair labor practices, and thereby to minimize industrial strife
which burdens and obstructs commerce, and thus effectuate the policies of the
Act, the undersigned will recommend that the Respondent cease and desist from
in any manner infringing upon the rights guaranteed in Section 7 of the Act,
therefore:
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
ConcLusIoNs of LAW
1. The Respondent, Allied Material Corporation, Detroit, Michigan, is engaged
in commerce within the meaning of Section 2 (6) and (7) of the Act.
2. International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America (UAW-CIO) is a labor organization within the meaning of
Section 2 (5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. By discriminating in regard to the hire and tenure of employment of Anthony
Thompson, Huston Adams, and Maurice Ott the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
5. The aforesad unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
n Crossett Lumber Company, 8 NLRB 440, 492-498.
=Loss of pay shall be determined by deducting from a sum equal to that which these
employees would normally have earned for each quarter or portion thereof, their net
earnings, if any, in other employment during that period. Earnings in one particular
quarter shall have no effect upon the Back-pay liability for any other quarter. The
quarterly periods described herein shall begin with the first day of January, April, July,
and October. It is recommended further that Respondent make available to the Board
upon request payroll and other records. In order to facilitate the checking of the amount
of back pay due. (F. W. Woolworth Company, 90 NLRB 289.)
23 N. L. R. B. v. Express Publishing Co., 312 U. S. 426.