Semet Solvay Co.

National Labor Relations Board - Board Decisions

May 28, 1943

49 N.L.R.B. 1241 (N.L.R.B. 1943)

In the Matter of SEMET SOLVAY . COMPANY and DISTRICT 50, UNITED
MINE WORKERS OF AMERICA, LOCAL 12303
Case No. C-24''72.Decided May 08, 194,3
DECISION
AND
ORDER
Upon a complaint issued pursuant to charges filed by District 50,
United Mine Workers of America, Local 12303, herein called the
Union, against Semet Solvay Company, Ironton, Ohio, herein called
the respondent, hearings were held before' a Trial Examiner in Iron-
ton, Ohio, from July 27 to 31, and on December 3, 1942, in which the
Board, the respondent, and the Union participated by their represen=
tatives. The Board has reviewed the Trial Examiner's rulings, on
motions and on objections to the admission of evidence and finds that
no prejudicial error was committed. The rulings, as well as the orders
of the Trial Examiner, are hereby affirmed.
On December 22, 1942, the Trial Examiner issued his Intermediate
Report, attached hereto, in which he found that the respondent had
engaged in unfair labor practices. Thereafter, the respondent filed
exceptions to the Intermediate Report and a brief in support of its
exceptions. Oral argument was held before the Board at Washing-
ton, D. C., on May 11, 1943.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, except insofar
as they are inconsistent with our findings and order hereinafter set
forth.
o We do not agree with the Trial Examiner's conclusion that the
respondent engaged in unfair labor practices within the meaning of
Section 8 (1) of the Act. The Trial Examiner's conclusion is
predicated solely upon the testimony of Clark 1 that prior to his dis-
charge, Foremen Brown and Seiforth made various statements to
' Clark was alleged in the complaint to have been discriminatorily laid off and discharged,
but we find that he was laid off and discharged for reasons unconnected with his union
membership or actin ities.
49 N. L. R B., No. 184.
1241
1242 - DECISIONS of ' NATIONAL' LABOiR RELATIONS B OARD
him which were coercive in character., Brown, who we believe was
a trustworthy witness, denied making,the statements attributed to
him by Clark. Seiforth is no longer in the respondent's employ and
was unavailable Ias a witness. In considering the credibility of
Clark's testimony that the-remark's in question were-made, we note
that the Trial Examiner himself discredited Clark's testimony in
various other respects, and, further, that, so far as the record dis-
closes, such remarks were misrepresentations of the actual policy of
the respondent towards the concerted activities of its employees.
Upon the basis of the entire record, and in the absence of corrobora-
tion of Clark's testimony, we are not convinced that the remarks at-
tributed by Clark to Brown and Seiforth were in fact made. We
shall accordingly dismiss the allegations of the complaint that the
respondent committed unfair labor practices within the meaning of
Section,8 (1) of the Act.2
Upon the entire record in the case, the Board makes the following :
CONCLUSIONS •OF LAW
1' The operations of the respondent occur in commerce, within the
meaning of Section 2 (6) of the Act.
2. The respondent has not discriminated in regard to the hire or
ten tie of, employment of Oscar Peters or, Elmer J. Clark, within' the
meaning of Section 8 (3) of the'Act, and has not engaged in unfair
labor practices within the meaning of Section 8 (1) of the Act.
ORDER
'Upon the entire record in the case, and pursuant to'Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint against Semet Solvay Com-
pany, Ironton, Ohio, be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr. James A. Shaw and Mr. Thomas E. Shroyer , for the Board.
Mr. Rockwell T Gust , of Detroit , Michigan , and Mr. Harry S. Ferguson, of
New York, N . Y., for the respondent.
Mr. George Gilbert and Mr.' Andrew A. West, of Charleston , West Virginia„
for'the Union.
9 Clark also testified that when he and employee Dillon presented to Superintendent Imes
the oven employees' petition for a wage increase in August 1941, Imes, in reply to Clark's
remark that if the increase were not granted , the employees might call in an organizer,
stated that he would rather they did not do so Imes testified that his reply to Clark's
remark that the employees might call in an organizer was that Claik and Dillon "under-
stood the problem we were discussing and . . . were doing a good job'of discussing it."
We find that Imes was a trustworthy witness , and we credit his version of the conversation
as against Clark 's. We do not believe that the remark which Imes admitted he made can
reasonably be said to have been coercive under the circumstances.
SEMET SOLVAY COMPANY 1243
'STATEMENT OF THE CASE
Upon a third amended charge duly filed June 29, 1942, by District 50, United
Mine Workers of America, Local 12303, herein called the Union, the National
Labor Relations Board, herein called the Board, by the Regional, Director for
the Ninth Region (Cincinnati, Ohio), issued its complaint against Semet
Solvay Company, a New York corporation, herein called the respondent, alleg--
ing that the respondent had engaged in and was engaging in unfair labor
practices, affecting commerce within' the meaning of Section 8 (1) and (3),
and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint, together with notice of hearing
thereon, were duly served upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged in substance:
(1) that the respondent at all times since July,1, 1941, through the acts of its of-
ficers, agents, and employees, interfered with, restrained, and coerced its em-
ployees in the -exercise of the,rights guaranteed them in Section 7 of the Act,
(a) by questioning them as to their union affiliations and matters connected
with the Union, (b) by surveillance and spying, (c) by discriminatory promises
of preferment for withholding affiliation with the Union and threats of reprisal
for affiliation therewith, (d) by urging, 'persuading, and warning its employees
against affiliation, (e) by promising individual pay increases on promotions
conditioned on refraining. from or abandoning affiliation with the Union, (f)
by discriminatory penalties for minor and common mistakes, (g) by attempting
to manufacture pretexts for- discharge of employees most active in the Union
by giving conflicting orders and laying traps; (2) that the respondent dis-
criminatorily discharged Oscar Peters on or about October 3, 1941, and after
discriminatory lay-offs for one week periods imposed on or about September
15, 1941, January 25, 1942, and April 3, 1942, discriminatorily discharged Elmer
J. Clark on or about April 27, 1942, and thereafter refused to reinstate either
of said employees, because of their union membership and activities.
On July 14, 1942, the respondent filed its answer admitting certain allega-,
tions of the complaint as to its business but denying that it had engaged in
unfair labor practices. ,
Pursuant to amended notice of hearing duly served upon the respondent and
the Union, a hearing on the said complaint was held before the undersigned, as
the Trial Examiner duly designated by the Chief Trial Examiner, at Ironton,
Ohio, on July 27, 28, 29, 30, and 31, 1942. The Board and the respondent were
represented by counsel and the Union by one of its representatives and all
participated in the hearing. Full opportunity was offered to the parties to
examine and cross-examine witnesses and to produce evidence bearing on the
issues 11
At the close of the hearing opportunity was given to the parties for oral
argument before the undersigned and counsel for the Board and for the respond-
ent participated in oral argument. The parties were given opportunity to file briefs
with the undersigned. Briefs were filed by the respondent, the Union, and the
Board. On August 31, 1942, the respondent filed a motion to correct the official
transcript of proceedings in certain particulars, copies whereof were served on
the Board and the Union. Allowance of the motion was consented to on behalf
of the Board and opposed on behalf of the Union. The undersigned, on October
6, 1942, issued an order, which was duly served on the parties, directing that
the said official transcript of proceedings .be corrected in certain respects as set
forth in said motion and in certain other respects as set forth in said order.
On. October 8, 1942, the Acting Chief Trial Examiner issued an order, which
was duly served on the parties, directing that the hearing be reopened before.
I
1244 DECTSMONS OF NATIONAL LABOR RELATIONS, BOARD,
the undersigned, upon ten-(10) days' notice, for the purpose of taking additional
testimony relevant to the issues. Upon notice of hearing' duly served upon the
parties a further hearing was held pursuant,-to the terms of the said order of
the Acting Chief Trial Examiner before the undersigned at Ironton, Ohio, on
December 3, 1942.1 The Board and the respondent were represented by counsel,
and the Union by one of its representatives and participated in the hearing.
Full opportunity was afforded to the parties to examine and cross-examine
witnesses and to produce evidence bearing on the issues. -
On the record thus made, the undersigned makes, in addition to the foregoing,'
the following :
I FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT2
The respondent is now and at all times material to the issues of this pro-
ceeding has been a corporation organized under, the laws of the State of New
York, having one of its places of business at Ironton, in the State of Ohio,
hereinafter referred' to as the Ironton plant, where it is engaged in the manu-
facture, sale, and distribution of coke and coal by-products. The principal raw
material used at the Ironton plant is coal, more than 50 percent of the respond-
ent's requirements thereof originating in and being shipped from states other
than the State of Ohio. Sales of products manufactured at the Ironton plant,
amount to more than $1,000,000 per annum, more than 50, percent of which, in
value; are sold and shipped to states other than the State of Ohio. The
respondent admits that it is engaged at its Ironton plant in commerce within
the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
District 50, United Mine Workers of America,. Local 12303, is a labor organ-
ization. It admits to membership employees of the respondent at its Ironton
plant. -
III. THE UNFAIR LABOR PRACTICES
A. The alleged discra rnanatory lay-offs and discharges
e 1. The issues
The complaint alleges that the respondent discriminatorily discharged Oscar
Peters on or about October 3, 1941, and, after discriminatory lay-offs on or about
September 15, 1941, January 25, 1942, and April 3, 1942, discriminatorily
discharged Elmer J. Clark on or about April 27, 1942, because of their union
affiliations and activities. The respondent in its answer denies these allega-
tions.
2. Preliminary findings ; operations at the Ironton Plant
The Ironton plant occupies a rectangular area lying just within the corporate
limits of the City of Ironton running approximately north to south, and com-
? The undersigned issued notice of hearing, dated November 17, 1942,, setting November 30,
1942, as the date of hearing. For the convenience of counsel for the respondent this date
was changed to December 3, 1942, and the undersigned issued-an amended notice of hearing
accordingly. -
2 The findings in this Section 'ere based upon admissions in the respondent's answer and
facts stipulated at the hearing,
I
SEMET SOLVAY COMPANY 1245
prising about 40 acres. A large part of the area is covered by railroad'tracks,
connecting at the north and south ends of the tract with the Norfolk & Western
Railway. After incoming cdrs have been spotted by the railroad they are
handled by the respondent's crews and equipment until released. The plant
operates.on a 24-hour day basis, the daily car handling amounting to 400,to 500
cars. At the dates material to the issues of this proceeding switching operations
were done under the general,supervision of William Hunt, yardmaster, with a
crew of two men, a switchman, and an engineer, assigned to each 8-hour shift.
Regular switching equipment consisted of one Diesel engine locomotive and one
stand-by steam locomotive. Incidental supplementary car handling was done
by four locomotive cranes.
Manufacturing operations at the Ironton plant consist of the conversion of
coal into its volatile by-products and coke. The coal, as it leaves the mines is
brought into the yards in standard coal cars which are moved by the yard
crews as needed to the coal handling plant. This is situated about midway of
the east side of the plant area and is serviced by two tracks, running north and
south, the easternmost being herein designated as No. 1 and the other, adjacent
and running parallel to it, being herein designated as No. 2. The coal handling
plant is equipped to handle any type of coal from either service track. The
coal is first dumped 'into hoppers underlying the service tracks, one hopper
under each track' accommodating a `carload of coal at a time. The coal is
carried by conveyors from the hoppers to storage bins, each type of coal utilized
being stored in separate bins. Coal intended for coking is conveyed from 'the
storage bins to pulverizers, the' various grades of coal being mixed in deter-
mined proportions according to the type of coke desired. The mix is then
conveyed to bins adjacent to the coking ovens, each grade of mix being kept
in separate bins marked according to the type of mix for which it is designated.
The coke ovens are arranged in batteries or blocks, each oven having a door
at each end and five openings across the top. One of these is fitted to a connect-
ing pipe whereby the gases expelled in the process of conversion of coal into
coke are conveyed into a common collector main and on into the by-products
departments. The other four are used for,receiving the coal mix into the oven
and correspond to outlets-in the bottom of the "charger" or "charging car" which
runs on tracks extending across the entire block of ovens and delivers coal from
the oven bins to any designated oven in the block. After an oven has been
"charged," the coal is leveled off with hand tools and the oven is hermetically
sealed.
When an oven is ready to be discharged the front and rear doors are opened
and the coke is pushed by means of a mechanical ram or "pusher" from the
front of the oven into a receiver known as a "quenching" or "hot" car at the
other end. Under normal conditions the coke consists of a brittle cohesive
slab that is easily ejected. If improperly processed, the coke "sticks" to the
oven floor and walls and has to be dug out by hand.
The plant manufactures twb grades of coke, "domestic" and "foundry." Each
grade is manufactured from a different mix and is differently processed. Domes-
tic coke requires 18 hours for processing at 2500 degrees Fahrenheit, while foundry
coke requires 36 hours at 2000 degrees. Certain ovens in each block are desig-
nated for each type of coke to be processed. The operating crews are furnished
daily schedules of the ovens to be charged, the type of mix to be used, and the
exact time at which each oven is to be discharged. After each discharge the oven
is left empty for a minimum period with the doors open to ensure complete decar-
bonization before it is'recharged.
1246 IDECIS4ONS OF NATIONAL LABOR RELATIONS, BOARD,
There are three blocks of ovens at' the Ironton plant, No. 1 block containing
60 ovens, No. 2 block containing 25 ovens, and No. 3 block, recently constructed,
containing 76 ovens. The ovens in any one block are uniform in size, and are
approximately 35 to 45 feet long, 10 feet high, and 15 to 20 inches in width taper-
ing slightly so that the width of the oven at the back is approximately 2 inches
greater,than at the front. -
Incident to the dnaugdration of a construction program that eventually more
than doubled the production capacity of the plant, the respondent,. in November
1940 appointed Harold E. Imes, then the superintendent of the respondent's plant
at Ashland, Kentucky, as the superintendent of the Ironton plant. It was Imes'
responsibility both to maintain maximum production from the old equipment
during the period of construction and to supervise new construction.
3. The discharge of Oscar Peters
a. Events leading to Peters' discharge
i
On the afternoon of October 3, 1941, the yard -crew on duty consisted of Ralph
Lauter, engineer, and Oscar ("Jack") Peters, switchman. The shift started at
3 o'clock. Hunt, the yard master, gave Peters general instructions as to the
work to be done on the shift and then left the plant for the day.3 Peters first
proceeded to shove 5 cars of coal north on track No. 2 from the vicinity of the
scale houseyto a point just south of the coal hoppers, where they would be acces-
sible to the coal handling plant, and then took the engine over to the track serving
the oven blocks in order to move a "hot" car. While operating in this locality
he was told by'B. H. Rigsby, the master mechanic, that there was a car with
a coal crusher over on the Lorrain Street (or northwest) end of the yard that,
had to be unloaded that afternoon and that he wanted track 2 cleared south
of the coal hopper. Peters appears to have understood that the car itself would
be spotted by the locomotive crane that was to do the unloading and that the only
service required of him was to get the track cleared`' While he was engaged
in the latter operation, Rigsby made it clear that he was expected to get the coal
crusher. In order to spot the car containing the crusher at the site Rigsby
indicated, Peters was obliged to remove all the coal from' track 2 with the excep-
tioir-" of two cars, one being- directly over, the hopper and the other just to the
south of-it. Peters .told Rigsby that with only two cars on the. track, Conway,
the foreman of the plant, would be out-of coal before he could get.back•with the
crusher.- Rigsby.told him, however, that that did not:matter as. the car had to
be unloaded so that it could be released the following morning.
Peters 'was unavoidably delayed in getting to the Lorrain Street end of the
yard and when he arrived the car he was looking for was not there. After fur-
ther delay in trying to locate it, he found it to the west of the oven blocks some-
what south of the Lorrain Street crossing. He took it back to the Lorrain Street
1
3 Switching operations were performed under the direction of the switchman on duty, the
engineer being responsible only for carrying out the switchman's directions
° The testimony is conflicting as to Peters' next maneuver. Rigsby testified that he
noticed shortly afterward that Peters had cleared track 1 ; that he called Peters' attention
to the fact that he had cleared the wrong track, and told him he would like to get the car
as soon,as possible as it had to be unloaded before quitting tine; that Peters then asked
him to show him where be wanted the car spotted, whereupon they walked to a concrete
platform alongside track 2 and he indicated the exact spot where the crusher was to bq
placed ; and that Peters thereupon proceeded to get the track cleared .Peters' testimony
confirms Rigsby's except as to the initial mistake, and is not inconsistent with it on that
point Lauter testified that the only cars removed were from track 2. The undersigned
does not deem it necessary to resolve this conflict as the respondent made no point of Peters'
mistake if any such mistake occurred. -
SEMET SOLWAY COMPANY 1247
crossing and brought it south on the east side of the yard, delivering it at a
,switch point between tracks No. 3 and 4, just north of the coal hopper, to a
locomotive ' crane that was to do the unloading. The crane hauled it' south to
get switch clearance to track No. 2, while Peters proceeded north with the
engine to a switch point connecting with the tracks north of the hoppers and
started to switch empties.' Conway had already been out of coal.for some time
and when Peters started switching on the north side of the hoppers Conway
walked over to him to ask that he get him some cars. Peters told him that he
would have to see Rigsby about it e and continued to switch empties. Conway
then hunted, up Rigsby and told him that he was out of coal and his plant -was,
shut down, that he had talked to Peters about it and Peters had referred him to
him Rigsby went after Peters, who was still switching empties, and asked him
to get some coal for Conway. Peters nodded in apparent acquiescence but con-
tinued with the work he was doing.
Sometime later, George Lawson, the assistant superintendent, in making his
afternoon rounds of the plant, saw Rigsby and Conway standing by the engine
room door and noticed that the coal-handling machinery was not operating. He
asked them why the plant was down. They told him that Peters had hauled off
the coal cars in getting track clearance for the crusher, that they had been out
of coal for 30 minutes, and that they had asked Peters to get some coal but
he had not done so.
Lawson noticed Peters switching cars over on adjoining tracks 3 and 4. The
developments which followed are here given in the language of Lawson's testi-
mony, which the undersigned credits in substance:
I stepped across one track to where Mr. Peters was standing by the switch,
probably throwing the switch, and I said, "Jack, what is the matter that
you don't get them some coal on the docks?" He began to tell me about
Mr. Rigsby had to take the coal off the docks . . . and the crane was in the
way, and he continued to switch' He left that point and went one way or
the other to cut a car off. Well, I kind of followed him a few steps and by
the time I got to him he was coming back again to the switch and got close
enough and I said, "Well, you don't have to switch these cars now. Let us
go get him some coal." Well, he made some kind of an excuse, I don't recall
the words he used, but continued to make one shift or another shift with
the empty cars. Well, I followed,him, he made about three switches there
with me demanding finally-I finally demanded and 'said, "Go on down
No. 3 track " When I. say "down" I mean in the direction of the river. I
said, "Go down No,3 and pull him: some Eagle coal on No. 1." , By that,time,
I think he made his last switch with the empty ears and he apparently
started down No. 3 and went about a car length and stopped and the engineer
came out on the running board of the engine, out of the cab, and Jack opened
the sand box-and then dipped up a bucket of sand and handed it to the
engineer and by that time I had got a little bit aggravated that he kept on
making moves of the cars and paid no attention, apparently, to what I said.
I walked up to the sand box just about a car length from the last time from
where I talked to him and I said, "God damn it, Jack, you don't need no sand.
Come on, get some coal on the hopper." I don't think he made any reply
at all and he dipped up another bucket of sand though and handed it up and
5 Peters testified that his purpose was "so the crane would have to get where they wanted
to unload the car." It appears, however, that such clearance had been provided for when
the cars were originally hauled from track No 2
0 It appears from the record that Peters had at this time completed the task given him by,
Rigsby.
1248 IDECISILONIS OF NATIONAL LABOR REILAFITON& BOARD,
after that bucket, the engineer went back in the cab and they started to move.
Well, I was pretty mad by that time but I still thought he was going to
do what I told him to do, go down No. 3 and come up on No. 1 and pull some
coal on the hopper. Instead of that 'he motioned the engineer, gave the
engineer the signal, and the engineer went up No. 3, the opposite direction
from where I told him to go and so, as the engine came by Jack stepped on
the rear end of the footboard and I was kind of bumfoozled fora minute
before I could realize what was going on, the engine had probably gone a
car length from me, going up No. 3 as I call it and then I saw it was going
away from what I had told 'him to do and I made two or three running steps
and hopped on the running board alongside of him, and I said, "By God,
this is the straw that broke the camel's back. Come on to the office and
get your money." So, we rode half the distance from there to where,he
finally stopped the engine, which was almost to the scale house, not quite
to the scale house, a distance of about 600 and 700 feet. About half way
up there, Jack kind of changed his tactics then. He had been defiant and
ignored me what I was talking to him, and he said, "Well, that ain't enough
to fire me over." I said, "By God, you just deliberately come off and didn't
do what I told you to do." I said, "You know we need coal and are out of
coal and you done all this extra switching and taking sand and now to come
right away from the job that I told you to do " By that time we had, the
engine had stopped at the scale house, so we stepped off, started towards
the office, and at that point on the track, just near there, there was a crane
sitting, and Mr. Waddel' was standing near the crane and I said, "Waddel
take Jack's place on the engine." 8
i Waddel was crane foreman.
3 Both Peters and Conway testified to Conway 's request for coal and Peters' statement
that Conway would have to see Rigsby. Conway and Rigsby testified to Conway' s subse-
quent report to Rigsby Rigsby testified that Peters was still switching on tracks 3 and 4
when he instructed him to bring-Conway some coal and that Peters continued switching
Conway testified that he saw Rigsby approach Peters and that Peters thereafter continued
switching Peters first testified that after he had completed switching he proceeded to
take sand on the engine and that "at that time " Rigsby spoke to him. Later on he
testified that he was still switching empties on tracks 3 -and 4. Peters further testified
that he was filling the sand boxes when Lawson first spoke to him and that this occurred
"Well, I will say 15 minutes after Rigsby had told him to get Conway some coal. Conway
testified that he was still switching empties on tracks 3 and 4 Peters further testified
Peters "was switching cars , and George Lawson was running along talking to him,".that
"a little later " the engine stopped by the sandbox and he "saw Jack and George talking
and moving around with their hands and seemed to be rather angry " Rigsby testified that
Peters was still switching when Lawson spoke to him and thereafter proceeded to take
on sand at which time they were "both talking in a rather loud tone of voice." Peters
testified that Lawson first came to him while he was taking sand; that he then "started
to the south side of the yard to continue with my work and put the coal down the other
track . . and in the meantime he relieved me of my duties . . . . The engineer, R. T.
Lauter was present on the engine and I was on the ground and Mr Lawson, the
,assistant superintendent went to the cranes and Mr. William Waddel , the crane foreman
and-brought him there and relieved me of my duties ." Lauter testified that he first
saw Lawson while Peters was handing him up buckets of sand. Lauter testified at the
first hearing: "we brought the car [with the crushei] back up to No. 3 to the crane
and then [the crane] took the car and went on and we took on sand and that is when
the foreman, Mr. Rigsby and the foreman [were] talking to Mr. Peters, I don't know
what it was about, and he came up to the yard where we were switching the two other
empties and set them in the corner, in the clear, and was starting at the coal docks
when Mr Lawson overtook us with the crane man and the crane man took Mr Peters'
engine and Alr Lawson motioned him off the engine and we went on with our work and
they went , up to the office " Recalled for further examination at the reopened hearing,
Lauter reiterated his testimony that the engine stopped to take sand immediately upon
taking the freight car over to the crane Lauter testified : "We gave it to the crane . . .
somewhere beyond the water plug , and then we stopped to take sand while the crane was
SE'MET SOLVAY COMPANY 1249
b. Peters' appeal to Imes
, After placing Waddel, the crane foreman, in charge of the engine, Lawson
proceeded with Peters to the office. While they were on the way, Peters asked
Lawson to reconsider his discharge, which Lawson refused.' When they reached
the office Lawson went to the chief clerk's office to have Peters' time made up
and to make.out a ,discharge slip, leaving Peters in the hall-way. Imes was not
in his office at the time but came in while Peters was waiting. Peters told him
that Lawson had discharged huh and asked if he could speak to him for a
minute Imes, who had already heard from the storekeeper that there was some
trouble between Peters and Lawson,` asked Peters where Lawson was., Peters
pointed to the chief clerk's office." Imes went to Lawson and asked him what
was going on. Lawson said lie had just fired Peters. Imes asked what had
happened Lawson said that they had run out of coal at the "coal handling"
and that Peters was "bulling again" and wouldn't get any coal and that Peters
had carried it too far and he had fired him. Imes told Lawson that Peters
wanted to talk to him about it and asked Lawson who else knew anything of
the circumstances Lawson told him that Conway and Rigsby knew something
going with this gondola and while he was getting out of our way we were taking sand
in the diesel to save time . . I expect we were there about fifteen minutes and that
is where Air Lawson and Air. Peters were having their conversation " Lauter fm ther
testified that he saw Conway talking to Peters "either before or while we were taking
sand," _that Rigsby was "there at the coal handler" about that time but "I couldn't.
truthfully say that I remember seeing Mr Rigsby and Mr Peters talking, although
they may have," and that Lawson' came up "iight alter Mr Conway had talked to Mr.
Peteis " Lanter further testified- "We were there [taking on sand] about, I would
judge about fifteen minutes and they were talking practically all the time that we were
there" ; that he and Peters then picked up a couple. of empties on Track No 4 and
backed them up Track No 3 to "the other end" of the yard near Third street, and
bad just cut off fioni them and started to back tip "when Air Lawson and a fellow that
relieved Mr Peters were walking up the track and stopped us"; that Peters was then
on the footboard and gave the stop sign, that Lawson motioned Peters off the engine
and motioned Waddel on, and that he and Waddel proceeded to put 5 or 6 cars of coal
on No 2 track the crane having finished unloading the crusher and pulled out
° Peter s testified "He took me to the office and on the way to the office I asked him if
he wouldn't reconsider . . . I said that I had only done what I had been instructed to do
by the Master Mechanic and he said he wouldn't reconsider anything, that he was going
to discharge me and, if -Mr. Imes, the Superintendent, wanted to correct it I would have
to see him " Lawson testified: "Jack began to plead then that there tias no reason to
fire him, he had to go over what had happened previous to my coming up, Mr. Rigsby giving
him the instructions to pull the coal off and . . put the crusher in these .
ro Imes testified that he was making his usual trip thi ough the plant before going home
when he met the storekeeper ; "Ile said, 'Ilave you seen George0' I said, 'No, but lie is out
here in the plant somewhere.' He said, 'No, he is not You had better get to him.' I said,
'What do you mean? Is lie hurt?' He said, 'No, he is about to die, though He is about
to have a fit.' I said, 'What are you talking about?' Ile said, 'I don't know I saw him
in the office . with Jack Peters and I never saw him so mad in my life . . I imagine
he must be firing Jack, the way I can make it out' "; that he "turned around and walked
back towards the office "
n Imes testified that after he reached the office he found Peters sitting in the hallway ;
that Peters got up as he came in and said lie wanted to talk to him ; "I said, 'What about?'
He said, 'George has fired me' I said, 'This is all new to me I don't know what it is all
about .. . Where is George?'"; that Peters pointed to Long's office down the hallway.
Peters testified : "We went to the office and Mr. Imes wasn ' t in just at that time. Ile was
out in the plant Well, when Mr. Lawson went into the, office to make out my diacliarge
slip, Mr. Imes came in. I asked him . . . as he was going through the hall, if I could
speak Ito him for a minute , and he said not until he saw George . . . referring to
Mr. Lawson "
1250 ^DECISfONE OF NATIONAL LABOR yEELAI PION1Sr BOARD, -
about it. Imes thereupon sent for Conway and Rigsby to come to his office."
Imes then went back to Peters and told him he was going to see that he had a
fait hearing and had sent for the foremen involved." Some of the construction
foremen were beginning to assemble for a daily 5 o'clock conference with Imes.
Ile told them there would be no meeting that afternoon but took up a' -few
individual problems with them while waiting for Conway and Rigsby to arrive."
When all the group had assembled they proceeded upstairs to lines', office. ,
The conference in Imes' office lasted almost two hours, and covered not only
the'events immediately responsible for Peters' discharge but his work record
in general Since the sole, purpose of the conference was to enable lines to
determine whether he should sustain Lawson in action which Lawson, had,
already taken and had refused to reconsider, the testimony as to the conference
is hereinafter reviewed at length.
Peters testified as follows :
Q. Tell us just what happened.
A. I asked, before the investigation started, if they would recall my fore-
man to the plant to sit in on the investigation and also asked them if they
would call the crane operator that they had sent after this particular car
that led up to the trouble, and they did not seem to want to recall either
one of them back to the plant, . . . we carried on the investigation by
ourselves leading from practically the thud that I come there until up to
the date that I was discharged, over how different ones done their work
"Imes testified that he found Lawson in the chief cleik's office and asked him what was
going on, he said, 'I have lust fired Jack Peters' I said, 'What happened?' Ile said,
'Well, he ran out of coal at the coal handling and Jack was bulling again and wouldn't get
any coal and he carried it too far and I fired him' I said , 'Jack wants to talk to me
about it . . . who else knows anything . . . about it?' He said, 'Conway and Rigsby
know something about it,' so I turned to one of the office clerks, I believe Mr Dow-
ling, and I told him to go out in the plant and 'find Conway and Rigsby and tell them
to come to the office." Lawson testified : "Mr. Imes came in and I told him that I had
canned Jack and Jack wanted to talk to hun about it He said, 'Well, I don t know
anything about it.' He said, 'What is it abouti' I told lnm that Jack absolutely refused
to do what I told hun to do He said, 'What was it"' I said, 'Well, about getting some
coal on the dock; the coal hoppers were out of coal and Jack wouldn't put it on' I went
ahead and told Mr Imes the circumstances about Mr Rigsby having him pull the coal off.
He said, 'Well, what did Conway say about it?' I told him that Conway had asked Jack
to get the coal and lie did not get it Hc, said, 'Well, we will get them and see what it is
all about' He sent out for Mr Conway and Mr. Rigsby
13 Pei cis testified "He went into the office and talked to Mi Lawson for at least ten
minutes and then come out in the hall where I was and told nie that this all came up
unexpected and he was going to see that I had a fair investigation and he was going to
send out after the different foremen that were involved in the trouble and the dispute that
'come up "
14 Petei s interpreted this delay as a pretext on Imes', part for a conversation with Conway
and Rigsby before the conference Peters testified : "Ile went outside in the bath house and
stood there on the walk until Mr Rigsby and Mr Conway come to the plant office and
stopped these two foremen and talked to them for at least 15 minutes before they come into
the office to go into the investigation . .. I could see them from the office window , standing
in front of the bathhouse talking together and then we went upstairs into Mr Imes' office
and held the investigation." Imes testified • "We were supposed to have a construction meet-
ing at about 5 o'clock each evening and two or perhaps three of the other construction
foremen were coming in towards the office at about that time, and I walked out and told
them we wouldn t have the meeting and asked them if they had anything on then mind,
and as I recall they told me two or three construction problems and we discussed that for
perhaps two of three numites and I went back into the office and then ILbeliece Mr Rigsby
/ came in first, I am not sure but I believe Mi. Rigsby came in first. I stood around in the
office whele Air Peters and Mr. Rigsby wcie and Mi Lawson was still in Mr Long's
office, and then Mi Conway came in and I told all three of them and Mr Lawson to come
on upstairs." Tb s undersigned credits Imes' testimony. i
SEMET SOLVAY COMPANY 1251
and how they did not 'do it, and why you had to do different things and
different things in switching and causing delay in the yard.
Q. Do you recall what Mr. Rigsby [said] ?
A'. Yes, Sir.
Q What did he say?
A At the investigation, he told me I had not done what he asked me to
do . . He told Mr Imes-first, I told-Mr Rigsby that he had told me that
he, had sent the crane after this particular car and wanted me to move
the coal so the crane wouldn't be delayed in getting down to) unload the
crusher from the car. Well, at the office at the investigation there he did
not seem to want to back up that he had ordered me to take the coal off
to start with He did not back.
Q What did he say about that?
A. Well, he told me that'he had ordered me to get the car and have it
up there where the crane could get to it, but he did not do that. He had
ordered me to move the coal (,) that the crane was bringing the car.
Mr. GUST That was what?
Mr. SHAW. Repeat that, please.
The, WITNESS. Well, after he had instructed me to move the coal, then
he changed his orders and instructed me to go get the car for the crane.
He had switched the job from one crane to the other crane.
Q., (By Mr Shaw) Go ahead
A. Well, the investigation continued, on just first one thing and then the
other.
Q What other foremen had statements to make?
A Conway said he had difficulty with me keeping coal down for him to
unload and made the statement that my work had not been satisfactory
with him.
Q Who else made the statement?
A. Mr. Lawson complained about my work ever since he had been
assistant superintendent.
Q. And who else?
A That was all.
Q Did Mr lines ask you any questions?
A. Mr. Imes made mention that he had not been at the plant very
long and he did not know just exactly how my work had been done and
he was leaving that up for Mr. Lawson to handle.
Q. And then what happened?
A. They discharged me.
* * * * * * *
Q. Did they permit you to make any statement?
A. Very few.
Q. What did they permit you to do?
A They permitted me to state why I took the coal off and where -I got
the car and why I was so long in getting the car for the crane.
531647-43-vol 40 80-
* * a *
C
1252 DECIS1OMS OF NATIONAL LABOR RELAITIONS BOARD
Q. And were you discharged at that time? -
A. Yes, sir.
Q. Did you receive your check at the time?
A. I was discharged and my card was punched out. They held me in
the office until seven o'clock and then they erased the punch on my card and
changed it, I think, for an hour or an hour and a half's difference because
the investigation continued for that time.
Q. Did they pay you for that time?
A Yes, sir. -
Q. Did you ever receive a separation slip from the company?
A. Yes, sir.
Q What were the reasons on that for the discharge9
A Continuous insubordination and willfull mishandling of the job.
*
Q. (By Trial Examiner) Now did Mr. Imes when he announced his decision
after this investigation-did he specifically state what you were discharged
-for?
A. No, sir ; Mr. Imes did not mention anything what I was discharged for.
He would not have any part in discharging me, only to sit in on the inves-
tigation and ask questions on how we did our work in the yard and why
-we would do this and make different switches and different questions and if
any of the other men, switchmen had the same difficulty that he had had and
he, did not make any decision over the discharge in any way.
Q. As I understand it, he just wouldn't disturb Mr. Lawson's decision?
A. That is right, Mr. Lawson had handed down his decision and Mr. Imes
wouldn't make any change or consider making any change.
CROSS EXAMINATION
Q I think you said that Mr. Imes followed you all around the plant [one]
-night . . . Did you tell Mr. Imes in this investigation that was held over your,
discharge? -
A. He called it checking up on the yard switching. He admitted himself
at the investigation.
Q. Checking up on what?
A. On the yard switching. He admitted in his investigation that he had
been,out there a- number of nights. -
Q. A number of times?
A. Yes, checking up on yard switching.
* * * * * * *
Q. Now, I think you said that at this meeting Mr. Conway complained
about some of the switchings he had had?
A. He did.
Q. And that Lawson complained about it?
A. Yes, sir.
Q. I think the word you used was complained. 'At least they spoke that
they had not been'satisfied with the switching they had had, is that it?
A. Yes. -
Q. And Rigsby complained about the switching he had had? `
A. Yes, sir. ,
J
iSEMET SOLVAY COMPANY 1253
Imes testified as follows :
We went upstairs and I told them that I understood there had been some
difficulty about running out of coal and I wanted to know what they could
tell me about it, and Mr. Conway said that he ran out of coal and I asked him
why, and he said it was due to the fact that they had been unloading the
pulverizer and for some reason or other they took too long and he ran out
of coal before -they_got done. I asked Mr. Rigsby, about the pulverizer and
he next said that he had arranged.to unload the pulverizer, and each time
though that one of those men would say anything Mr. Peters would break in
and start saying something about his knowledge of the affair 'and during the
course of the discussion, Lawson, Rigsby and Conway and Peters all told their
various parts in what had happened in connection with the coal handling
running out of coal, and Peters eventually getting fired. Peters, as part of
his story, started telling about how busy he was and constantly rushed and
I told him that while I knew nothing first-hand about this affair this after-
noon here, when he talked about being busy I knew quite a bit about that.
[Imes then told Peters of two recent occasions when his engine had been
idle for about an hour and a half on the 2nd shift.] I said, "Jack, you may
wonder how I know these things. Do you remember now that what I say
is true?" He said, "Yes, that is true, but sometimes our work does get a lot
faster and some times it does get a little slack, but not very often." I said,
"Well, I have been particularly disappointed in the switching as I have found
'it at the Ironton plant and I have talked to Mr. Lawson at some length about
it and I have talked to Mr.•Hunt about it and I made up my mind to get some
first-hand information and I have been out here checking on.the switching
operation and that is how I know what you [were] doing on those different
nights at different times." Then Peters asked Mr. Lawson if he wouldn't
reconsider and Mr. Lawson said no, he wouldn't, and then Mr. Peters turned
to me and he said, "George has never liked my work." I said, "What do you
mean by that?" He said, "Well, we just can't seem to get along together and
George seems to think I am stubborn and contrary and within the last year
he threatened to fire me." I said to George, "George, is that true? Did you
threaten to fire Jack within the last year?" He said, "Yes, I did." I said,
"Has there been any similar occurrence since that?" Jack said, "Well, he has
been on me two or three times within -the last year." I asked Mr. Lawson
if he wanted.to reconsider Jack's discharge. He said no he did not. That
closed the affair.
Rigsby testified that someone brought word to him that he was wanted at the
office, that he met with Lawson, Imes, Conway and Peters in Imes' office, that he
did not then know that Peters had been discharged, and that Mr. Imes asked
the question why we had let the coal handler run out of coal. He further testified
as follows :
Q. Well, now, at this meeting at Mr. Imes' office when you told your story,
did anybody else besides you and DIr. Peters talk there?
A. Yes ; Mr. Conway and Mr. Lawson and Jack talked more than all the
rest put together. _
Q. Did Mr. Peters, during this conversation, make any statements about
his having too much work to do?
A. He did. He mentioned that on the second shift he was just busy all the
time from the time he came on there . . . because the first trick would leave
a lot of work for him to do especially.
1254 DE,CISIONIS OF NATIONAL LABOR REILAITIONS BOARD
I
Q. And what did Mr. Imes say to that? -
A. Mr. Imes said, "Now, Jack, we are talking about something that I know
something about." He said, "On several occasions I have seen a locomotive
sit for an hour or an hou'r' and a half and never move."
'Conway testified that he had received a message to go to the office,, that he
there met with Imes, Lawson, Rigsby and Peters, that he did not know until
they met in Imes' office. that Peters had been discharged. He did not testify in
detail as to the conversations at the conference.
Lawson testified as follows :
[Imes]'sent out for Mr Conway and Mr. Rigsby. They came in and we all
went upstairs to Mr. Imes` office and he asked them the circumstances and
they went over all the circumstances from the beginning. Mr. Rigsby told
his part of it and Peters then made explanations of all kinds and excuses why
he did not do it or why they were out of coal, and then Mr. Conway told it
the way he saw it and,Mr. Peters made more explanations,-and then he asked
me my part of it and I told him my part of it, and Peters, would follow that
with some more explanations, and then it finally got on those different occa-
sions that Mr. Imes asked him about complaints about Peters, when Peters
had been contrary about his work, and that was all discussed, and then at
one time during the meeting, Peters complained about the extra lot of work
that he had to do. Mr. Imes told Peters, he said, "I have complained to Mr.
Lawson about it, about the amount of work which the switchmen do here
and I have been out there at another plant and I have been used to more
work in less hours " He said he couldn't understand why we needed more
men. He said, "I have made' special trips out here." He named two specific
instances . . . of where he had, then he told Jack of the amount of time that
he had seen the engine idle and nobody doing anything, and, Peters requested
that he reconsider the matter and he would be willing to take a lay-off. That
phase of the matter was discussed quite a bit. Finally, Mr. Imes asked me,
he said, "Well, George, do you 'think you would reconsider the matter and
'give Jack another chance?" I said, "No, I have given Jack chances before."
. . . and so Mr. Imes told Peters, he said, "Well, then the evidence here of
what happened, what these fellows say, I see no reason to overrule Mr.
Lawson's decision." That was the end of the meeting.
c. The Board's contentions
Counsel for the Board contends that the ostensible occasion for Peter's discharge
was pretentious, and that the discharge was motivated' in fact by Peter's union
affiliations and activities.
Following several years of railroad experience with the Norfolk & Western,
Peters was employed by the respondent at the Ironton plant in August 1933, and
had served successfully as fireman, engineer, and switchman. He had been
regular in his work habits and up to the time of his discharge had never been
penalized by disciplinary action of any sort.
Early in September 1941, Elmer J. Clark, an oven-man at the Ironton plant,
became interested in organizing the employees. He succeeded at the outset in
enlisting Peters' help. At seven o'clock in the evening of September 18, an
organization meeting of the Union was held at the hall of the Junior Order of
American Mechanics at Coal Grove, just outside the city limits of Ironton. At
I his meeting Peters'was elected vice president of the Union.
ISEMET SOLVAY COMPANY 1255
There is no direct evidence that either Lawson, who discharged Peters, or Imes,
who refused to overrule Lawson's action, had any knowledge of Peters' interest
in the Union. Both Lawson and Imes, who impressed the undersigned as respon-
sible and credible witnesses, denied having such knowledge. It is contended,
however, that the circumstantial evidence convincingly refutes their denials.
The hall at,which,the meeting of September 18 was held is located at the
intersection of two thoroughfares, Marion Pike (or Route 243) and Pike Street
(or Route- 52). The corner is brightly lighted. Vehicles proceeding through
Route 243 to Route 52 must come to a full stop at the intersection. On the evening
in question, just before the meeting, Al Higgins, a labor foreman, walked to the
corner and engaged in general conversation with Peters and other employees
there assembled. About the same time, Harry Ackinson, an oven foreman, droye
through Marion Pike in his automobile and turned into Route 52. From these
facts it is contended that Peters' presence was certainly known to Higgins and
could have been known to Ackinson and that the presumption follows that this
knowledge was communicated to Lawson and Imes.
The record shows that Higgins lived within a short distance of the hall and
that Ackinson passed the hall practically every evening on his way home. There
is nothing to indicate that the purpose of the meeting, which was the first the
Union had held at the hall, was known to anyone but the participants. This link
in the chain of circumstantial evidence reduces to the possibility, in the face of
Idirect evidence,,to the contrary, that;Higgins„or,„Atkinson, or both, had knowledge
of Peters' activities and communicated this knowledge to Lawson, or Imes, or
both "
>.e The hall in question is a general purpose' hall, used for religious services, women's
club meetings, and lodge meetings. There is no evidence that it was ever before used by a
labor organization. Peters testified: that on the evening of September 18 he saw both
Atkinson and Higgins in the vicinity of the hall. He further testified as follows :
Q Where did you see them'+ ,
A. Atkinson was in his car driving around the ball, around the block.
Q. Did you see him around more than once?
A. Yes, sir, 'several different times.
s • s • ♦ s
Q. Just what did you observe-as they passed the ball?
A, Well, they were watching to see who was on the corner and what men was
congregating around the hall. They paid particular attention1to that.
Q Where did you see Mr. Higgins?
A He, walked•,down the sidewalk and stood on the corner and I was talking to
him personally, myself, with several other men, members around the building.
s s e s
Q. Was that prior to or after the meeting?
A. Just before the meeting.
e s •
Q Did he make any remarks to you about the Union?
A. No, sir,
4 5 - t
CROSS-EXAMINATION
Q I think you said that on September 18th you saw Mr. Higgins on the street.
A. Yes, sir.
r s s s • : n
Q Were you standing there on the corner with him?
A. I spoke to him and was talking to him.
Q How long did you talk to him?
A. Not very long Ile walked down the corner and to his own home.
R W t S n n
1256 'iDECISQDNIS OF NATIONAL LABOR RELATIONS BOARD
It is further contended, however, that immediately following the meeting,
Peters was subjected to special surveillance As evidence of such surveillance,
Peters testified that while working on the night shift, he observed Imes watch-
ing the switching operations over a period of several hours on several successive
nights. Imes testified that in his study of operations incident to reorganization-
he had become concerned over the inadequacies of the switching service; that
even on the basis of the current/demand for service, he had been requested by
members of the supervisory staff to add additional facilities, whereis the cost
of the service at Ironton was already out of line with that at the Ashland plant
where the switching was done under less favorable conditions; and that, in order
to understand the factors responsible, he had made a personal check on switching
operations, not only on Peters' shift, but on the two other shifts as well ,10 The
undersigned credits this explanation, which is entirely consistent with the orig-
inal purpose of the respondent in transferring Imes to the Ironton plant. The
coincidence of the timing of this study with the period immediately following the
organization of the Union loses significance in view of the fact that the construe-
tion of a new battery of ovens was at, that time nearing completion and a sharp
increase in production, and in consequent demand for switching service, was
imminent
Two further incidents are stressed on behalf of the Board's contention as to
surveillance. On one occasion, Peters,.was requested tot change the' location of
a stand-by "quenching" or "hot" car, the type of car used for receiving hot coke
from the ovens The shifting involved was performed within Peters' regular
working hours, and no prejudicial inference can be drawn from the fact, that,
Q Your talked to him a few minutes and then be went on home, is that it?
A Yes, sir, he walked back up the street.
e • s n _ n s s '
Q You also said that same night you saw Mr. Ackinson in his car?
A Yes, sir.
Q Which way was he going?
A. Ile was coming in Marion Pike and would turn and go east on Route 52.
w r r s ` W -
Clark testified that he saw Atkinson "just the one time", "driving along slowly just,
as I was entering the hall " Clark further testified . "Just as I come down Thud Street and
turned down Marion Pike and stopped and talked to--Peters 'a-'little, bit and some of
the other boys before I went into the hall and Al Higgins walked down just before he
got within 50 feet of the place where we were standing on the corner, I walked on off
and around to go into the hall door and I saw Mr. Atkinson coming in Marion Pike Road."
Ackinson testified that he lived on Route 52 and passed the hall almost eveiy night
on his way home and probably did on the evening in question but had no recollection of
ever seeing Clark or Peters there Higgins testified that he had no recollection of the
specific evening or of ever seeing any, group of employees meeting at the hall, and was
positive that he had not seen Peters or talked with him at any time in the vicinity of
the hall
The undersigned credits the testimony of. Peters and Clark to the effect that they saw
Atkinson drive by the hall and also -saw Higgins in the vicinity, and also credits
Peters' testimony as to having had a few minutes talk with Higgins, but does not
credit Peters' testimony, which is uncorroborated, that he saw Ackinson drive around
the block several times, or that either Higgins or Ackinson were engaged in surveillance.
Both Higgins and Atkinson are shown by the record to have had habitual reasons for
being in the locality and the fact that neither of them had any recollection of their
presence on a specific evening long ante-dating their testimony is entirely consistent with
the probability that there was nothing in the circumstances to register any lasting
Impression. '
10 See page 1258, eifra for further discussion of the switching service.
i
SEMET SOLVAY COMPANY 1257
in Peters' judgment, the change of location was unnecessary. Peters testified',
that on another occasion, .two rolls of new rubberord roofing were left for two
days on the ground in the vicinity of his automobile, the inference suggested;
being that Peters was expected to appropriate the roofing and thereby furnish;
the respondent with a pretext for his discharge. The undersigned does not
credit.'Peters' explanation of the presence of the roofing and the inference sug-
gested seems otherwise wholly conjectural."
It is further contended that lines' knowledge of Peters' union activities is shown.
by a conversation between Imes and Eugene Myers, one of the oven crew Myers
testified that he joined the Union "along about the middle of September" 1941,
and that, "around the 1st of October," Imes, whom he had known. "around 16-
years," asked if anybody had ever brought him "a card" and, when he replied in
the negative, Imes told him that he understood that the construction workers had
held "a couple of meetings after working hours" and that he had heard "a few
rumors about operation and all he had ever heard was that Elmer Clark was the
head of it " At another point in his testimony, Myers testified that the con-
struction workers referred to were the men-working on No. 3 oven block, and
that this work started in December 1941 Elsewhere Myers testified that No 3
block went into production on the last of December, and that they started to
beat the ovens sometime in October, "among in there some place " , Imes recalled
the conversation to which Myers' testimony related and fixed the date as sometime
subsequent toDecember'23; 1941. The undersigned finds, for reasons considered:
more fully in another section of this report," that the conversation referred to,
occurred subsequent to Peters' discharge.
It is finally contended-that the respondent's claim that Peters was discharged'
for a single offense, after a long work record without disciplinary action of any-'
sort, is so improbable as to be presumptively untrue. The issue for determina-
tion by the undersigned is not whether Peters' conduct merited,his discharge but
whether it was the effective cause of it. Lawson, who discharged him, testified',
to the reason for his action, and further testified that at the time he did not
know Peters had any connection with the Union. Imes, who made his own,
investigation of the circumstances, at Peters' request, testified that he did not
know at the time he refused to override Lawson's decision that Peters had any
17 Ackinson testified that between 9 and 10 o ' clock on the night in question McClellan,
an engineer, reported to him that a door on the regular hot car was not working
properly ; that he made "a couple of trips" with McClellan and told him lie thought it
would work all right but later recalled that a new shift foienran was coming on duty
on the next shift and decided to check up on the condition of the stand-by hot car, that
lie found a tank car between the hot car and the quenching outfit and had Peters
move it so that the hot car would be more accessible to the oven foienran in the event
the regular hot car went out of commission . The undersigned credits Ackinson ' s testimony
which is undisputed.
1R Peters testified that about 9 o'clock one night he saw Imes and Ackinson go from
the storeroom "with something on their back . . It looked like something very round
and about three feet long the plant ground itself there was pretty well lighted up
with floodlights and they could be awfully easily distinguished with the floodlights shining
on them" ; that when be stopped work at 11 o'clock there were two rolls of rubberoid
roofing on the ground within six feet of his car, that he retuined to the screen house to
get his flashlight and, as lie came back , he could see Imes standing behind the tar
tanks and that Imes watched hire until after he got, in his car and left the parking
grounds ; that when he returned to work the next day the roofing paper was still lying
on the ground and remained there until the following day when it disappeared lines
denied flatly that any such incident had occurred Ackinson's denial was equally em-
phatic The undersigned credits their denials On the principle that "surely in vain
the net is spread in the sight of any bird," the incident is inherently improbable. Further-
more , Imes and Atkinson impressed the undersigned as the more , credible witnesses.
11 See page 1269 ti7i fra
1258 D'ECISfON OF NATIONAL LABOR RELATIONS BOARD
connection with the Union There is no direct testimony to the contrary. Both
Lawson and Imes impressed the undersigned as credible witnesses The issue
therefore reduces to the question of whether the reason assigned by Lawson was
in itself so improbable as to discredit their testimony. Lawson testified that he
discharged Peters for insubordination. The facts by which the credibility of
his claim may be tested are as follows: On the afternoon in question Peters,
almost immediately after placingia number of cars of coal on track 2•for, the
use of the coal handling plant, was required to remove them to make way for
a car from which a crusher was to be unloaded. The only coal left for the
unloading plant consisted of a few minutes supply in a car directly over the coal
hopper and another just to the south of it. Peters testified that he knew the
importance of a constant supply of coal to the hoppers, and that he told Rigsby
that the hoppers would run out of coal before he could get back with the other
car. For the consequences at this point Rigsby clearly assumed responsibility.
Peters, through no fault of his own, was much longer in locating the car with
the crusher and placing it in position than either he or Rigsby anticipated. The
unloading plant had shut down and some 15 men were standing idle waiting
supplies of coal. Whether or not he should then have taken the initiative in
relieving the situation, Peters did not in fact do so. When approached by
Conway, the foreman of the unloading plant, with a request that he get him
some coal, Peters referred Conway to Rigsby and went on with other work.
When 'Conwdy's request was repeated by Rigsby, Peters continued to ignore the
situation 20 ' After an interval 'that Peter's estimate's"at 15 minu'te`s,' Lawson,' the
assistant superintendent of the plant, finds the coal handling plan shut down
and learns that Peters had been requested, both by Conway and Rigsby, to'get
some coal for the plant and had not done so. He finds Peters switching empties
on some tracks nearby and gives him a direct order. Peters continues to switch
empties and Lawson repeats his order.' Peters apparently starts to comply
and then stops the engine to take on sand. The engine was adequately supplied
with sand, the engineer had made no request for it, and taking on sand was cus-
tomarily a routine operation attended to when the engine was not immediately
needed for something else Lawson again goes after him and orders him to
get Conway some coal, and tells him the route to use, whereupon Peters starts'
off in the opposite direction. That Lawson should lose his temper at this junc-
ture and discharge Peters on',the spot does not seem to the undersigned so incred-
ible a consequence as to reflect on Lawson's credibility for so claiming
The record indicates that while Peters was generally conceded to be a good
switchman, he,had a reputation for stubbornness and for wanting to do things
his own way, and was considered uncooperative by the supervisory staff.21 When
Imes made his investigation of Peters' discharge he learned- of the friction in
Peters' relations with the staff. His own recent investigation of the switching
service had not impressed him with Peters' competency. His refusal to inter-
20 Peters ' explanation for not getting the coal as requested was that track 2 was still blocked
by the car that was being unloaded south of the hoppers The record indicates , however,
that there was no obstacle to bringing in at least two cars of coal from the north side of the
hopper to replace the two cats which had been left on track 2 when it was originally cleared
for the crusher.
21 The testimony as to Peters ' work record leaves no doubt as to his competentcy but does
raise a question as to his work attitude . Peters testified : "I had been told time after time
that I was contrary . They considered that, but that was as far as it went " Hunt, his
immediate superior , testified that he performed his duties satisfactorily and was steady
on the job but that he had heard it said of him a number of times that he was a good'
switchman if he wanted to be and that Peters always wanted to do it his own way Rigsby,
the master mechanic , testified : "As a switchman, I guess Jack was good ; but he got contrary
spells " Rigsby further testified that he had complained to Hunt about his slowness in
carrying out=orders and' that Hunt' •had'said , "Jack is a good , switchman but he has .got a
regular routine of doing things and he is so damn contrary, but he is a good switchman "
SEMET SOLVAY COMPANY 1209'
fere with Lawson's decl,,ion, especially on an issue of insubordination, does not
seem so unreasonable as to require the assumption of some ulterior motive for
his conduct.22
- D. Summary; Conclusion
On the'whole record,,the undersigned finds that Peters was discharged by Law
son because of conduct that Lawson plausibly construed as personal insubordi-
nation and willful refusal to carry out instructions and that, in Lawson's words,-
made him "mad as hell" When the discharge was reported to Imes with the-
information that Peters was appealing to him to overrule the discharge, Imes'
response is persuasive evidence of his purpose to afford Peters a fair hearing.
Imes, cognizant that Lawson had acted in anger,lcalled in Conway and Rigsby
for a complete report of the events of the afternoon. The discussion that fol-
lowed not only reviewed the immediate circumstances that led up to the discharge,
but disclosed long-standing complaints of the foremen as to the difficulties they-
had-experienced in getting Peters' cooperation, tending to confirm similar com-
plaints received by Imes in the course of his independent investigation of the-
switching operations He finally decided that he would not interfere with the
action Lawson had taken.
The undersigned finds and concludes that the respondent discharged Oscar
Peters on October 3, 1941, for cause unconnected with his membership in or,
activities in behalf of the Union.
4 The lay-offs and discharge of Elmer J. Clark
a. Events leading to Clark's discharge
In studying the operations of the Ironton plant in connection with the new
program, lines decided that there was too much laxity in the operation of the
coke ovens on the shift of a foreman named C. E. Seiforth 23 On or about Sep--
telnber 2, 1941, Imes told Seiforth that he contemplated making a change, and
on September 9 Seiforth was released at the end of his shift from the respondent's
employ. Imes transferred Barry Ackinson, who was foreman on another shift,
to the supervision of Seiforth's crew'
n Hunt had taken up with Lawson the question of -increasing the number of men on the
yard and Lawson had discussed the problem with Imes Imes said he could not understand-
why they needed more men, as Ashland was doing more switching with fewer men, that
he didn't believe the work was being handled right and that he. was going to make his own
investigation In the course of his investigation lines received complaints against Peters
from Dickerson, the coke handling foreman, Van Horn, the assistant master mechamc and
Higgins, -the labor foreman On two occasions he had noted that Peters' engine was idle
for more than an hour at a time At the time lines reviewed the circumstances attending
Peters' discharge he heard further complaints from Lawson, Conway and Rigsby.
13 Ines testified " . when I got into the various phases of operation at Ironton, I was
particularly disturbed by the status of the oven operation and the railroad switching.
I couldn't understand some of the things that I saw done in connection with oven operation
at Ironton, and that caused me to spend more time in watching oven operation, and it
became apparent to me that Mr Seiforth's shift was far behind the other two shifts in the
manner in which they operated and cai ned cut their work, and I would come out to the
plant of an evening to check the operation and many times I would come out on Mr.
Seiforth ' s shift and couldn ' t find him . . further I would find that it appeared to be
impossible to get him to carry out the program that you might have on oven operation .. .
Mr Seiforth just apparently, either through lack of intelligence or wilfully, would not carry
out instructions given h_m . . .
24 lines testified that he had known Ackinson for some 20 years and considered him one of
the two best foremen he had ever known "in his ability to handle an oven shift and get the
work done properly, and carry , out-the instructions - issued to, him, by the management, and
ability to get along with his men."
1260 ' DECISIONS OF NATIONAL LABOR RELAU01-NTS BOARD
One of the members of Seiforth's crew was Elmer J. Clark, classified , as a "top
man" or "charger ." Clark had worked for the respondent a short while in the
latter part of 1929 or the early part of 1930, first under Al Higgins, foreman of the
labor gang, and later on the oven crew under George Lawson, then a foreman.
At Lawson's solicitation, he returned to work May 23, 1033, and was thereafter
employed as a member of the oven crew, first under Lawson, and upon Lawson's
proinofi6h i to assistant superintendent, under, Seiforth. Most, of, the time he
worked on oven block 1 but was sometimes assigned to block 2. The ovens in
block 2 differed from those in block 1 in that the doors were pulled off hori-
zontally by electrically operated extractors whereas those in block, l were lifted
by cables connected with a hoisting machine In either case it was the duty
of the top man to see that the opening mechanism was attached to the doors of
the oven that was to be opened and to give the signal for applying the power
On September 9 Clark was working on oven block 2 In opening the last oven
to be "pushed" on that shift he inadvertently attached the extractor to an oven
that had been charged only a few hours before.2°
Part of the contents of the oven poured out and so jammed the opening that
Clark was unable to get the door closed. He asked the top man or "charger" to
signal for the oven foreman. Lawson arrived before Seiforth, the oven foreman,
and asked Clark how it happened. Clark told him he had pulled the wrong door
and was so hot he was afraid to stay with it any longer and asked Lawson to
get some one else to "clean up the mess" and get the door back on. About that
time Clark's relief man on the next shift came up and told Clarkhe would take
over for him for the rest of the shift.R°
Later in the afternoon Imes ran across Paul Wolfe, the oven foreman on the
succeeding shift, and heard about the incident, but did not then learn who was
-responsible for it. Imes inspected the oven in question and found the door braced-
with 4 x 4 timbers. He saw Lawson a little later on and asked if he knew what
had happened. Lawson told him that he did and that the trouble was caused
from Clark's breaking the wrong door."
Ackinson assumed the duties of his new position on September 10. Before he
15 Clark testified • "I pulled the wrong door off No 2 block while working on this fob .
/ The oven I was supposed to take the door off of was No 84 . . . I did not look for the
number on the door I was hot, very hot , just about as hot as a man could be without
leaving the job . . . always during that time we were veiy anxious to get our last one . . .
I knew it was the wrong door, but to reverse the controller and to stop a piece of machinery
that is opeiated by electricity, it is impossible to check a mistake much quicker than I did
then Yet it was a green oven What I mean by a green oven it was an oven that had been
charged about seven hours before and that to the best of my knowledge I had gotten that
oven one time at the beginning of that shift, that same shift."
21 Clark testified • "Mr Lawson asked me how it happened I told him . . . there was
only one thing to it , and I had just run the door extractor in and pulled the wrong door,
and I was just so hot I was afraid to stay with , it any longer and I would like for him to
get someone to clean up the mess and try to get the door back on , as I was afraid I was
going to go down if I stayed with it much longer . He said , 'Well, I want to know how
you come to do if,' I said, 'I just was so doggone hot I (lid not even look for the number . . .
• I just pulled the wrong door . . He only shook his head and cussed a little about it "
27 Imes testified that he saw Wolfe late that afternoon and continued : "I made some
remark , 'How afe you going ?' or words to that effect He said 'All right . The first shitt
on No 2 block had a hell of a time getting out.' I said, 'Why?' He said, 'Well they took
the wrong door off of the back of the block and made quite a mess of it and we had to clean
it up' I said , ' What did it amount to ?' He said , 'Well , we got started and are going all
right now, but it was quite a mess to clean up there around shift change ' . . We had to
put some timbeis in it to hold it. . . Go around and look at it' I walked around and
sale the door had been braced on the back end with four by fours There was no mess there
at that time . . ., I ran into Lawson and asked him if he knew about it and he said that
it had come to his attention and either I asked him or he told me that Elmer Clark had
broken the door.'
,SE'MET SOLVAY COMPANY 1261
went on duty Imes told him that he felt that Seiforth's shift needed tightening
up and that he was counting on his ability to bring it up to the same point of
efficiency as the shift he had been on. Imes further told him that it was un-
fortunate that he was taking over just at a time that they had had trouble on
the shift through one of the men having pulled the wrong oven door but con-
tinued: "I, think;this will be a good time for you to,bring Elmer Clark in and let
'me.talk.to both•of-you and it will help you establish your status with the shift
if I can talk along the lines of improving the performance on this shift. I think
we can't let that kind of occurrence continue and we have got to recognize it by
some sort of penalty."
When Ackinson took over the shift he talked with the men individually, telling
them in substance that it was a new shift for, hiin ; that he considered them "a
good bunch of boys" and wanted to get along with them; that he had always
tried to have the best shift in the plant ; that they were capable of maintaining
that standard and he wanted them to cooperate with him to that end He told
Clark, personally, that if anyone could improve the job it was Clark himself, that
he had learned about his mistake of the day before, that he felt such mistakes
were unnecessary and wanted them stopped. He further told Clark that Imes
iwanted to see him after he had punched out for the day and that he would go to
the office with him.
When Ackinson and Clark reported to Imes, Imes told Clark he was
sorry, to learn,about, his, mistake, of the day before, that he knew it had not
been intentional but, that an occurrence of the sort could have serious conse-
quences and the management could not tolerate their continuance. Imes told
him further that he had not been satisfied with the oven operations, and that
the oven department would have to be tightened up along with the other
departments because of the expanded load. Imes concluded by telling Clark
that the management would have to make a point of his mistake by giving
him a lay-off which he hoped would be a sufficient lesson to him' and be the
last he would receive. Imes then imposed a 2-clay lay-off. , Clark expressed
his appreciation of the leniency of the action taken.28
Between September 10, 1941, when Clark received his lay-off, and the following
January, the respondent took no further disciplinaiy action in his case. During
this period, however, he was reprimanded by Ackinson on several occasions.'
On January 25, Clark inadvertently charged an oven designated for domestic
coke with foundry coal. The error was not discovered until the following day
i
Clark testified that during his first peiiod of employment with the respondent lasting
about 11 months he had opened the wrong oven a dozen times and during his second
period of employment had made a similar mistake half a dozen tunes a year. Ile
further testified that at the conference with Imes, he had been asked' whether he had
not made rimilar mistakes in the past and if lie could not avoid such mistakes ; that
Imes said he bad been checking up on the records and found that "there were a great
number of mistakes made there, and lie felt they were all uncalled for, and that lit]
was his policy in trying to get those mistakes down by penalizing the men two to five
days and he was giving me a two-day lay-off for this mistake" ; that Imes told him
how important lie regaided the mistake of opening the wrong door, and that it was going
to be stopped if possible ; that Imes "talked very nice" and that he told Imes that if it
was going to be_the practice in the entire plant he did not mind being the first man to
start taking the vacation, that it might help and he had no objections and was glad the
lay-off was not for a longer period
,21 Clark testified' that during this interval he "got bawled out once in a while" for
such things as taking too much time out for lunch or being a few minutes late in report-
ing to work, or causing the ovens to "stick" by reason of not having been properly
charged. He further testified that on one occasion in October Ackinson reprimanded
him for "estimating" the amount of mix loaded into the charging car instead of weighing
it and threatened to discharge him if he did so again Clark testified that his "bawlings
out" after his lay-off were more-frequent than they had been before.
1262 DECISIONS OF NATIONAL LABOR RELAITTOVS BOARD
when the oven was discharged. The coke wasionly partially processed and was
removed from the oven with difficulty and the loss of 50 minutes time of the
-oven crew on the day's schedule. Ackinson reported the incident to Imes and
wanted to discharge Clark but Imes overruled him, and said to give him a lay-off
instead. Ackinson imposed a 5-clay lay-off for this error but Clark was-allowed
to resume work after being off for 4 days 30
On March 24, Clark again opened the door of the wrong oven, and was
given a 2-day lay-off31 Ackinson again wanted to discharge'Clark but Imes
said to give him another chance. On ,two other occasions he had his cables
on the wrong ovens on the rear of the block, but his mistake was discovered
before the power was applied. On both occasions Ackinson cautioned him about
his carelessness.
On April 14, Clark failed to carry out instructions as to charging an oven with,
a defective lining, causing the oven to stick when discharged' In connection
with this occurrence, Ackinson took Clark to Imes' office and Imes told him
he was not imposing another lay-off, as that form of discipline seemed to do him
no good, but, that he was making too many mistakes and that the next time
he would be discharged.
On April 27, Clark again opened the door of the wrong oven and Ackinson
discharged him.94 The cause of discharge was stated as "continual carelessness
in the discharge of his'duties."
0
b. The Board's contentions
Counsel for the Board contends that the causes assigned by the respondent
for the several lay-offs imposed upon Clark and for his final discharge were,
pretentious and that the effective cause of the disciplinary action taken against
him was his membership in and activities on behalf of the Union It is urged
in support of this contention that all of the mistakes for whicl' Clark was
"Clark was off duty on January 26 and did not see the oven opened and he did not
in this instance admit that he had been at fault In view of his complete, -and for the
most part volunteered , frankness in admitting other errors for which lie was disgiplined,
the undersigned has examined the record on this point with meticulous care The
voluminous testimony is completely convincing , however, and confirmed by the routine
records of the respondent for the date in question . Clark admitted that there was some
foundry coal in the mix but claimed that this was only a small residue left in the
charger after filling the previous oven The oven records for the day in question,
however, showed that the oven last filled had been charged with domestic coal. Clark
also admitted that on two subsequent occasions he had filled the charging car with
the wrong mix, but discovered his error in both instances before the mix had been placed
in the ovens. i
31 The complaint makes no reference to this lay -off. Clarl-, r testified on cross-examination
that he did not remember the incident but did not deny it The routine recoids of the
respondent confirm the testimony that such lay -off occurred and as to the occasion
therefor
82 Ackinson testified that if the power had been applied before the mistake had been
discovered the rear door might have been pushed off into the alley with serious consequences.
11 Clark testified : "I remember a small ' mistake, a so-called mistake of charging an
oven that had a bad hole in the back of it . . It had a bunch of tile out in the back
on the top part of the sidewall of the oven and I was notified by Mr. Ackinson and other
officials of the Company, one of whom was Mr 'Seinie Selway There may have been
another one, I don't remember. A few tines I was called attention by the Company
officials to notice that in charging that oven that I did not fill it too full of coal and
cause it to stick . On one occasion the oven did stick . . . I charged it . . . I am not
denying that . . .
84 Clai k testified • "I actually hung the rope on the wrong door that day I will admit
to that . I - remember doing it. I can recall that one day I did hang the front rope on
No 51 oven door instead of No 50, and did break it . . . About three w beelbarrows full
of coal ran out of this oven."
SEMET SOLVAY COMPANY -1263
disciplined were relatively trivial and of common occurrence in the plant prior
to Clark's first lay-off, and that during the period from September 10, 1941;
to April 17, 1942, other employees had made similar mistakes and had been more
leniently dealt with.
There is persuasive evidence in the record that opening' the door of the wrong
oven had not been an exceptional occurrence in the Ironton plant. Although,'
each oven was plainly marked, and the mechanical operations incident to,
attaching, the lifting device in the case of block 1 and the door extractor in
kthe case of block 2 'were elementary, the employees responsible would some-'
times grow careless as a result of the heat in which they habitually worked,
or in their haste to complete the day's schedule. While the consequences varied
with the extent to which the oven was opened, the results of such mistakes were
not inconsequential. Opening of the wrong oven resulted in loss through the
escape of gases and oxidation of an interdeterminate amount of by-products
and in some damage to'the coke. There was a potential risk of damage to
,equipment and personal injury from the spilling out of incandescent material
over the runways. There was time lost by the crews in refastening and shoring
up the heavy doors and in cleaning up the spill from the oven. The respondent
was clearly justified in insisting that these consequences be averted by the
exercise of reasonable care.
Counsel for the Board lays impressive emphasis on the 'fact that the 2-day
lay-off given to Clark in September 1941, was the first instance in which this
type of mistake had been disciplined by a lay-off. If Clark had been more
heavily penalized on-; this occasion, or less considerately treated, a real issue
of the respondent's good faith would be presented. ' The respondent is entitled,
however, to an evaluation of the incident in the light of its total context The
Ironton plant had come under new, management in contemplation of increased
production and laxities tolerated by a predecessor regime were in no way binding
on Imes. Clark's mistake on September 9 had occasioned more than nominal
trouble and delay. It happened on the eve of a change of foremen on Clark's
shift, effected for- the purpose of improving work performance on this shift.
In the absence of any question of Clark's interest in the collective activities
of the employees, there would be nothing noteworthy in Ivies' decision to treat
the incident as. an apt occasion for inaugurating a more decisive policy with
respect to, avoidable delays in production and in emphasizing the significance
of Ackinson's appointment. Imes went to unusual lengths in explaining to
Clark the point of view of the management, and just what he was seeking to ac=
complish by the disciplinary action imposed. Clark made no protest but on the i
contrary agreed that the new policy might do some good, expressed his willing-
ness to take a lay-off if the policy were to be made uniform, and apparently
accepted the lay-off in good part.
It is of course conceivable that the whole interview may have been an elab-
orate piece of stage-acting on Imes' part, but there is no presumption to that
effect, and such an assumption would be at variance with the impression of
sincerity which the undersigned received from his demeanor on the stand, and
would still leave unexplained the special character of his approach to Clark
in imposing the lay-off."6
Again, in the absence of the factor of Clark's union activities, his subsequent
work record and the respondent's course of conduct toward him would suggest
no issue of personal discrimination. There is no real issue presented by , the
"" The nature and extent of Clark's activities leading eventually to the organization of the
Union among the respondent 's employees is considered in another section of this report
(See pp ., 1263 to 1269 incl infra.)
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record that he did the things the respondent claimed. With one exception,
in respect' to which the undersigned finds that he was honestly, but in fact,
mistaken, he admitted or did not dispute the facts in any instance, and with
exceptional frankness practically volunteered self-prejudicial testimony. None
of these incidents were negligible, and if the respondent had been seeking a
pretext for his discharge Clark's record furnished numerous occasions for such
action. At the time of his lay-off in January, and on subsequent occasions,
Ackinson recommended that he be discharged and his recommendations were
overruled by Imes for the very reason that the latter had become advised
of his union affiliations and was anxious to avoid a charge-that,he was motivated,
by the fact.88
There is no substantial support in the record for the Board's contention that,
conceding, that Clark did what the respondent claimed, other employees in like
instances were more leniently dealt with. A full review of all the relevant
testimony on this point would needlessly prolong this report, but after full
consideration of the instances offered for comparison, the undersigned finds
that there are no fairly comparable cases disclosed by the record and therefore
no evidence which would justify a finding of discriminatory treatment.
c. Summary and conclusions
The mistakes attributed to Clark were all either admitted or clearly estab-
lished by the record. They were sufficiently consequential to lend plausible
motivation to the respondent's efforts to avert their recurrence. There is no
substantial basis in the record for the inference that the treatment accorded
Clark was discriminatory or that Clark's union affiliations'or activities were a
factor in either his lay-offs or discharge
i The undersigned finds and concludes that the respondent' discharged Elmer
J Clark on April 27, 1942, after several disciplinary lay-offs and final warning,
for reasons not related to his union affiliations or activities.
B. Interference , coercion and restraint
1.-The evidence redie ved
a. The meetings between Imes and the oven man's committee
Early in August, 1941, the oven men on the three shifts decided to approach
the respondent with respect to an increase in wages. There was some dis-
cussion at this time of the possibility of formal organization but a decision
was. reached to' attempt to accomplish their objective by a direct approach to
ae In the course of Imes' testimony he was asked by the Trial Examiner : "I would like
to know what the delay was in discharging Mr Clark when the record as presented here
from [the] Company standpoint shows several occasions for discharging him before he was
actually discharged, and the foreman recommended the discharge Why was no action
taken on any of those previous instances?" Imes replied as follows : "Well, Mr. Atkinson
wanted to discharge Mr. Clark. That was when lie put the foundry coal in the domestic
oven. Well, I had complaints on Mr Peters and after we released him I got a complaint
on his release, and I had every reason to, believe in January and you might say I knew it
because I had seen this item or handbill that Mr. Clark was an officer of the, Union and I
did not want to have it appear that I was in the position where I would probably throw the
Company and myself into another complaint, and possibly a hearing. I knew quite well
that by presenting the facts if it came to a hearing, that the facts would be fairly judged
and all that , yet it would be expensive and a nuisance in the time lost by myself and the
others, and I preferred to avoid that if I possibly could."
SEMET SOLVAY COMPANY 1265
management. Elmer J. Clark, at the request of his co-workers, prepared. a/
typewritten statement reading as follows :
We the undersigned oven employees of the Sement (sic) Solvay Company
Ironton, Ohio, are asking for a twenty cent ($ 20) increase on the hour.
This was signed by 38 of the 45 oven men. On or about August 7, a com-
mittee consisting of Clark and George Dillon called upon Imes.'
Clark testified that he laid the statement on the desk before lines and told
him that was what,they were there for ; that Imes said that their request came
as a surprise, that he had not been at the plant long enough to work out with
the, men any pay adjustments that might be warranted but that just glancing
over the paper lie felt that the request for a twenty cents an hour increase was
"very radical" ; that after further discussion Imes asked them to report back
to the oven men stating his position in the matter and asking them to reconsider;
that he told Imes that'the men wanted the increase effective by August 15 but
that the committee would report to them as requested and come back to see
him on August 15; that he also stated to Imes that he had been instructed to
say that unless the men got what they thought was coming to them they, were
going to organize; that Imes replied that "he would rather we did not, that he
would much rather try to thrash this thing out and settle all grievances and
troubles with us employees 'than he would an organization, some one in [an]
organization who did not understand the operation of the plant as us employees
did understand it"; that he told Imes the oven men had themselves decided to
get the matter settled without organizing but that "if we did not get what we
thought was right and just, we would take that step" ; that Imes asked which
union they had decided to hook up with, the C. I O. or the A F. of L ; that he
told Imes they had not decided ; and that, as far as he remembers, Imes • made
no further comment. Clark further testified that on August 15 he and Dillon
again called on Imes" and reported to him that 20 of the 38 men who' had signed
the request for a wage increase had met at Clark's house that morning and that
they, "felt that the considering should be done by the Company and not the em-
ployees"; that Imes asked, how long they would give him to get a reply from
"New York" ; that he replied that the men had told him to say that the Company
had already had from the 7th to the 15th but would give him a few days longer,
but that if the Company did not give them what they thought they should have
"the men were stating they were going to strike the plant" ; and that Imes said
he would give him a reply within a few days.
Imes testified that pursuant to an appointment made with him by Dillon,
Clark and Dillon called to see him and presented a petition of the oven opera-
tors asking for a 20-cent hourly increase in pay, eliminating the wage difheren-
tial between the oven operators and the flue men; that he discussed with them
the possibility of a general wage increase but stated that the differential would
in any case be maintained because of the difference in the duties of the two
classifications; that Clark stated he was sure that the oven operators did not
understand the reason for the differential and that he and Dillon would convey
to them the witness', explanation to themselves ; that the conference was
entirely amicable; that the only reference made to organizing was Clark's
statement that some of the men had said that if they did not get what they,
wanted they should "get an organizer in for that,".to which the witness replied
that Clark and Dillon understood the problem and were doing a good job of
i
i
It was apparently the intention of the employees that each of the shifts be repre-
sented by a committeeman, but one shift either tailed to make a selection or the selectee
failed to function I -
1266 'DECISIIi0NS OF NATIONAL LABOR RELATIONS BOARD,
discussing it; that Clark offered the petition to the witness but stated its
purpose and the witness did not recollect doing more than glancing at,the
petition which Clark took away with him at the conclusion of the interview
As to the second conference Imes testified that "certainly Clark and I believe
Dillon" came back and reported that "the boys still felt they ought to have the
.differential eliminated," that,, the conference was of very short duration and
may have taken place in the hall, rather than in his office.
Dillon testified- that he went with Clark to Imes' office when the oven men's
petition was ' presented ; that Clark acted as spokesman ; that they just had "a
friendly talk" at which Imes explained the reason for the differential between
the oven men and the flue men which they agreed to report back to the men ;
that in the course of the conversation he told lines that "the way we was
'divided, some about half and half, half of us decided if we didn't,get a raise
-we wouldn't work, and about half of them decided that they would join the
C I. 0 before they would do it, and make them do it"; that Clark spoke up and
said, "George is one of them that said he wouldn't have nothing to do with the
C. 1. O " ; that Imes made no reply to that ; that witness subsequently attended
a meeting of the oven men at Clark's house to decide whether to hold out for
the 20-cent increase or to modify their demands ; that some of the men said if
they could not get what they were asking they were going to quit and others
said it was better to take what they could get ; that they decided to leave it
,up to Clark, to see what he could do. As to the second conference Dillon testi-
fied, "I believe I ivent back that day. 'I wouldn't swear that I did ... I don't
remember about -that meeting. It is pretty dark in 'my mind whether I went
-back or not ..."
. b. Clark's conversations with Seiforth
During the latter years of his employment with the respondent, Clark worked
under C E. Seiforth as shift foreman. Clark testified that for "a year or so"
before the organization activities commencing in August 1941, Seiforth had
"cautioned us men about joining a union." In these conversations, as repoited
by Clark, Seiforth pointed 'out that while an organization would be "very nice"'
.and "probably be a help" in some ways, they would lose some of the advantages
of their present free and easy relationship to the respondent if they became
obligated to deliver eight hours work a day under a union contract 38 Clark testi-
fied that after the approach to Imes in respect to an increase of pay for the oven
-Wien "the conversation was quite a bit different between myself and Mr. Seiforth
in the way of what they would lead to"; that, a day or'two after he and Dillon
first called on Imes, Seiforth told him he was sorry to hear that 'he had been
instrumental in "snaking an act for the oven men and asking Mr: Imes for an
increase in wages. . . He liked my work fine and hated to see me leave by my
making acts of that kind or steps of that kind which might cause inc to leave
the plant" ; that, a few days later, Seiforth approached him again along the
same lines ; that he asked Seiforth why he, felt that way and Seiforth replied,
"I know what I am talking about" ; that Seiforth told him that in 1936 or
1937 an emplo3'ee. named Earl Shugg was interested in organizing the em-
ployees and Ackinson fired him, and that lie ought to know the company would
get rid of a man or a group of men rather than deal with an organization ; that
Seiforth told him that he had put both of them on the spot ; that Shugg and
ae Clark testified that Seiforth cited such concessions as "the rights to get out off the hot
part of the oven at the end, or get a little air or climb up on the runway or get a little
ibreath of air, sometimes as much as ten minutes'out," or "after getting too hot to lay off for
inaybo an hour or the rest of the shift without loss of pay
iSEMET SOLVAY COMPANY 1267
Charley Carey and Arley Elkins were at one time appointed 'as a committee of
the employees to meet with management, that Elkins had not served as a com-
mitteeman, Shugg had been fired, and Carey would have been except for the
fight Seiforth had' made for him; that Seiforth further told him that Carey and
some other 'employee "came awful near losing their jobs" when they went to the
office to meet with'Brandon, the general manager from New York; that Seiforth
told him that this was the third time an employee from Seiforth's shift had
acted as a committeeman and that he had been to a meeting at the office, and
had been told that the Company felt he did not have control of the employees
on his shift;,that Seiforth told him the best thing for him to do for both 'of
them was'to "drop out of this, smooth it over somehow," that he could not uphold
him as he had done "for the other fellows on the other two occasions" ; that
a day or two later Seiforth approached him again and asked what he was going
to do about it, stating that he had had another meeting with management that
day and been told' that he had to get rid of "about five or six" of his "oldest and
best men" or he was going to be fired himself ; that Seiforth further stated to him
that the Company did not like to deal with unions and that if they succeeded in
unionizing the plant they would only make things harder for themselves ; that
he told Seiforth he was going on with it- if it meant cutting his own throat.
Clark placed all of the foregoing conversations as occurring before August 15.
He further testified: "and different other times after that, he had mentioned to
me about whether I meant to try and change this thing . . . and he believed
there could be a change made with me and the men if I should see fit to do so,
which probably was going to come up between me and the Company in the future,
and probably some of the men involved, and left it just that way."
Clark testified that no one else was present at the times of his conversations
with Seiforth. Seiforth did not testify and exhaustive efforts of counsel for the
Board to locate him were unsuccessful. Clark's testimony as to the substance
of Seiforth's statement presents two questions: first, whether Seiforth made the
statements attributed to him; second, whether Seiforth's statements, if made,
were true Clark's testimony, while uncorroborated, is also undenied. 1lore-
.over, Clark impressed tlie' undersigned as an essentially honest witness. His
testimony in this connection covers several pages of the record and cannot be
credited as a facsimile reproduction of the dialogues which it purports to incor-
pgrate, but on the basis of'the record the undersigned finds that Seiforth did make
to Clarkin substance the statements which Clark attributes to him The under-
signed does not, however, accept Clark's testimony that certain conversations with
Seiforth occurring subsequent to the first'visit of Clark and Dillon to Imes' office
took place before August 15th. Clark's memory for dates is not dependable.
Only a month elapsed between the first conference- with Imes and the dischai ge
of Seiforth The internal evidence of Seiforth's statements indicates that they
were made at a time that he felt his discharge to be imminent.
The undersigned has given careful consideration to the question of what infer-
ences should, on the whole record, be drawn fi om the fact that, as found, Seiforth
made in substance the statements attributed to him by Clark If Seiforth thereby
made a factually true disclosure of the respondent's under-cover attitude toward
the organization of its employees, material findings made in preceding sections of
this report on the basis of the credibility of the respondent's witnesses would
require reexamination. Seiforth himself was not available as a witness, so that
his credibility can be tested only by, the trustworthiness of his statements as
disclosed by the record Brandon and Imes, material witnesses both on the ques-
tion of the respondent's general policy-and-'on facts put in issue by' Seiforth's
statement,, were available for observation by the undersigned and subject to
cross-examination, and impressed the undersigned as credible witnesses.
531647-43-vol 49-81
1268 D'ECTSIâON1S OF NAT'ION7AL LABOR REILATIIONS BOARD
It is to be noted that Seiforth's statements fall into two categories. The first
,consists of assertions in the nature of conclusions that cannot be tested with refer-
ence to any fact disclosed by the record. The second consists of statements that
can be tested by the record. All of Seiforth's statements in the latter category
are not only uncorroborated but are refuted by the record. The practice of,dis-
cussing employee grievances with the management, so far from being frowned
upon by the respondent, was the currently accepted method of presenting and-
adjusting grievances. The record establishes two instances of this practice. In
the summer of 1937, Carey and Dillon met as a committee with George Brandon,
the general manager of the respondent, to present certain grievances with respect
to conditions of employment. They were considerately received and the condi-
tions complained of'were corrected. Both of the employees on the committee are
still with the respondent, Dillon having since been promoted and Carey having
been transferred to a different job at his own request. In August 1941, Dillon
and Clark met with lines to present the demands of the oven operators for an
increase in wages. As a result of their conference with lines, the respondent
put into effect a 5 percent wage increase. The claim attributed to Seiforth that
he had been ordered to get rid'of five or six of his best men is denied by Imes and
by other witnesses who would have known of such orders, if given, and there is
no contention that any such discharges were made, either by Seiforth or anyone
else . Brandon testified that the general policy of the respondent with respect to
organization activities was to comply with the Act and maintain a'nentral atti-
tude; that he had instructed the superintendents of the several plants of the
'respondent to this effect, with orders to transmit these instructions to the plant
foremen ; and that the respondent is now working under collective 'bargaining
agreements with the same international union here involved covering its plants
in two other States. Imes testified that he had repeatedly cautioned his fore-,
men, both at Ashland and at Ironton, to refrain from any form of interference and
numerous foremen testified with every, appearance of veracity, to having received
such instructions at Ironton, both from Imes and from his predecessor. If
Seiforth's statements to -Clark were in fact true, some overt indication of the
fact would seem to have been inevitable While statements of such character
invite searching appraisal of the record to ensure that the protection extended
by the Act shall not be defeated by subtleties of evasion, the undersigned is
persuaded that the preponderant weight of the evidence leads to the conclusion
that the statemens made by Seiforh to Clark were a misrepresentation in fact
of the respondents' policy toward the collective activities of its employees and
of the instructions which Seiforth in fact received.
c. The employees organize .
Shortly after the second conference with Imes, the respondent put into effect a
5 percent wage increase applicable to all departments and retaining the pay dif-
ferential in favor of the flue tenders. A number of the oven operators were dis-
satisfied and, at their.request, Clark'obtained a supply of C I O. application
cards and started to solicit memberships. An open meeting, attended by 15 to
18 employees, was held early in September at Riverside Park, beyond Coal Grove,
and it was decided to hold another meeting at the S W. O. C. Hall at Ashland,
Kentucky, about 3 miles distant from Coal Grove„within the next few days. A
meeting attended by approximately 20 employees was held at Ashland on or about
September 9 _ After one or two further meetings at Ashland, a meeting was held
on September 18 at the Junior Order of American Mechanics Hall, at`which final
steps toward organization were effected. Upon application, a charter was sub-
SEMET SOLVAY. COMPANY 1269
sequently granted by District 50, United Mine Workers of America, establishing
the group as Local 12303.
d. Clark's conversation with Ackinson
Clark's first testified that Ackinson had never said anything to him about his
membership in the Union . He later testified that when he'returned to work after
his first lay -off, Ackinson came up to him and told him to forget it and not to
"feel hard" toward Imes or himself; that they were going to penalize all mistakes
that interfered with production in order to eliminate them and increase pro-
duction ; that he and Imes had checked his record, and that he had talked with
others who had experience with his work, and believed that he had the qualifica-
tions for a better job ; that he could avoid making mistakes if he set his mind
to it; and Ackinson further told him that if he would "quit this damn foolishness,
messing with these men in the way that I had, and he said, `You know what I
mean ' ", he was going to bat for him and see that he was promoted . Clark fur-
ther testified that he replied he would like to get a better job but would not be
interested in a promotion except in the line of seniority ; that Ackinson replied:
"I am sorry you feel that way, but you think the thing over. It is up to you.
I am willing to do my part if you will listen to me, but if you won't, it is just
your own mistake and I imagine you will be sorry" ; that Ackinson then turned
and walked off
With the deletion of the words , "messing with these men in the way that I had,
and he said , `You know what I mean"', the statement attributed to Ackinson is
entirely consistent with his attitude to Clark when Ackinson took over the shift,
as well as with the attitude expressed by Imes in his interview with Clark later
in the day . Ackinson , who impressed the undersigned as a credible witness, tes-
tified that he had never given Clark any suggestion that he should stop his
'union activities , and had talked to him only in connection with his work. The
undersigned credits Ackinson's testimony and finds that Clark is at fault in his
recollection of the conversation on this point.
e. Myers' conversation with Imes
Eugene Myers, an oven operator and the secretary and treasurer of the Union,
testified that "around the first of October" 1941, Imes asked him if anybody
ever brought him "a card": "I told him `No.' And he said he understood that
construction had a couple of meetings after-working hours and that he had
heard a few rumors about operations and all that he had ever heard was that
Elmer Clark was the head of it."
Imes testified that he recalled the conversation with Myers and that it had
occurred sometime subsequent . to December 23, 1941 ; that he had just been
approached by John McDunough , one of the construction workers, who told him
that the men working on construction realized that their jobs would soon b-,
over and that some of them had discussed the necessity for having union cards in
order to get employment elsewhere, and that McDunough had asked his advice ;
that he had told McDunough that that was entirely up to him but that if he
thought he was going to need a card after he left the Ironton plant perhaps he
had better join up; that shortly afterward he was in the pusher cab with Myers,
talking about construction , and told him of his ' conversation with McDunoug!' ;
that he had said to Myers in jest, "You have got your card, haven't you?"; that
Myers laughed and said, "No, I haven 't"; that he replied , "It looks like Elmer has
been neglecting you" ; that they both laughed and he walked away Imes
1270 , DECIStiONSS J OF NATIONAL LAB:GR RELATIONS BOARD,
further testified that he and Myers had been friends on and off the'job'for 15
to 20 years, and that Myers knew at the time that the" witness knew he was an
officer in the union in which Elmer Clark was interested.
f. Clark's conversation with George Lawson
Clark testified that shortly after the 5-day lay-off he received in January 1942,
George Lawson, the assistant superintendent, came to him when he was wearing
a union badge on his cap and asked him what organization he was representing ;
that he told Lawson it was the union that the men at the plant were organiz-
ing ; that Lawson asked him how' much the initiation fees and dues were and
how much the badge cost ; that he gave Lawson'the information requested and
asked him what he thought about the badge and the Union, to which Lawson
made no reply.
g." Clark's conversation with Foster Brown
Clark testified that shortly after his conversation with Lawson he was working
on another shift and was approached by' Foster Brown, a flue tender foreman,
who asked him if John L Lewis was the active head of the Union; that when
he replied in the affirmative, Brown told him that Lewis' yearly salary was
$25,000 and the Lewis family drew, in the aggregate, $110,000 from the Union, "
and asked him if he thought the workers got enough benefit from being or-
ganized to justify paying dues to an organization paying such salaries ; and that
he replied that if he had not felt that they did he would not be interested in
seeing the plant organized. Brown flatly denied that any such conversation had
occurred.
2. Summary ; conclusions
The undersigned attaches no significance on the issue of interference, restraint,
and coercion, to the, conferences between Dillon and Clark and Imes, or the
conversations between Imes and Myers, Clark and Ackinson end Clark and
Lawson, hereinabove reviewed. While Clark's testimony as to the conversation
with Brown hereinabove reviewed is denied by Brown and is uncorroborated, the
undersigned believes Clark's testimony in substance and is persuaded that such
conversation in fact occurred. In view of Brown's supervisory capacity, his
efforts to prejudice Clark against the leadership of the Union and to disparage
the value of the services rendered by the Union may reasonably have been inter-
preted by Clark as reflecting an attitude of hostility toward the Union on the part
of the respondent and constituted interference, restraint, and coercion of its
employees attributable to the respondent in the exercise of the rights guaranteed
in Section 7 of the Act.
The statements of Seiforth to Clark as hereinabove found were made to Clark
by his own shift foreman, and expressly purported 16 represent the hostile attitude
of the respondent. While on the basis of the=record the undersigned finds that'
Seiforth's statements were in fact misrepresentations of 'We -respondent's policy
as determined by Seiforth's superiors, they are to be viewed in their relation to
the policies to be effectuated by the Act in the light of their coercive potential.
They were statements made by an employee vested with supervisory authority to
his own subordinate and reasonably regarded by the "latter as an authoritative
expression of the respondent's attitude. As such they are attributable to the
respondent'and respondent thereby has interfered with, coerced, and restrained its
employees in the exercise of the rights guaranteed under Section 7 of the Act.
SEMET SOLVAY COMPANY 1271
IV., THE EFFECT OF THE UNFAIR LABOR 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
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, it will
'be herein recommended that it cease and desist therefrom Land take certain
affirmative action adjudged appropriate to effect the policies of the Act.
The unfair labor practices of the respondent as hereinabove found consist in
statements of certain of its, supervisory employees reasonably inferring or
expressly affirming the respondent's opposition to the concerted activities of its
employees. The deterrent influence of such statements can be removed only by
an unequivocal statement by the respondent, properly publici;:ed, to the effect that
its employees are free to exercise the rights guaranteed them under the Act with-
out risk of discrimination for so doing. It will be recommended that such notice
be posted by the respondent accordingly.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. District 50, United Mine Workers of America, Local 12303, is a labor organi-
zation within the meaning of Section 2 (5)' of the Act.
2. 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
unfair labor practices within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
1 4. The respondent has not discriminated in regard to the hire and tenure of
employment of Oscar Peters and Elmer J. Clark within the meaning of Section
8 (3) of the Act.
'
5. The respondent has not engaged in unfair labor practices within the meaning
of Section 8 (1) of the Act in Any of the respects alleged in paragraph 5 and in
paragraph 6, subdivisions a, b, c, f, g, and h of the complaint.'
as These paragraphs read respectively as follows :
(a) Questioning employees as to their Union affiliations , the activities of the Union, the
number and personnel of its membership and other Union matters ;
(b) Maintaining a close surveillance of and spying upon the activities, meetings, and
meeting places of said Union and its members ;
(c) Stating to its employees that they would be preferred with respect to security of
employment and other conditions of employment if they did not join or assist the Union
and if they did not engage in other concerted activities related to self-organization;
(f) Promising advancement and higher wages to individual employees conditioned on
their refraining from becoming or remaining members of the Union ;
(g) Imposing penalties upon Union members for minor and common mistakes for which
other employees were not penalized ; and
(h) Giving contradictory orders to and laying of traps for employees most active in the
Union in an attempt to create alleged justification for their discharge.
1272 DE•CIS1IIONIS OF NATIONAL LABOI AIELATIONS BOARD
RECOMMENDATIONS
Upon- the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that Semet Solvay Company, its officers, agents; succes-
sors, and assigns, shall :
1. Cease and desist from : -
(a) Interfering with, restrlaining, or coercing its employees in the exercise of
the rights to self-organization, to form, join or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take• the following affirmative action which the undersigned finds will
effectuate the policies of the Act. `
(a) Post immediately in conspicuous places at its plant at Ironton, Ohio, and
keep posted for at least sixty (60) consecutive days from the date of posting,
notices to its employees stating (1) that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paragraph 1 ('a) of these
recommendations; (2) that its employees are free to become or remain members
of District 50, United Mine Workers of America, Local 12303, or any other labor
organization, and that respondent will not discriminate against any employee
because of membership in or activity on behalf of any such organization ;
(b) File with the Regional Director for the Ninth Region, on or before ten (10)
days from the receipt of this Intermediate Report, a report in writing setting forth
in detail the manner and form in which the respondent has complied with the
foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the*
receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid. -
It is further recommended that the complaint be dismissed as to the allegations
of paragraph 5, and paragraph 6, subdivisions a, b, c, f, g, h,'° and as to the allega-
tions that respondent discriminated in regard to hire and tenure of employment of
Oscar Peters and Elmer J. Clark.
As provided in Section 33 of Article II of the Rules and- Regulations of the
National Labor Relations Board-Series 2-as amended, effective October 28,
"1942, any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II of
said Rules and Regulations, file with the Board, Shoreham Building, Washington,
D. C., An original and four copies of a statement in writing setting forth'such
exceptions to the Intermediate Report or to any other part of the record or
proceeding (including rulings upon all motions or objections) as it relies upon,
together with the original and four copies of a brief in support thereof. As
further provided in said Section 33, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of the order transferring the case to the Bohrd.
WALTER WILBUR,
Trial Examiner.
Dated December 22, 1942.
"See footnote 39 supra.