The Kilgore Manufacturing Co.

National Labor Relations Board - Board Decisions

May 21, 1943

49 N.L.R.B. 992 (N.L.R.B. 1943)

In the Matter of ' THE K ILGORE, MANNUFACTURING" COMPANY and
UNITED MINE WORKERS OF AMERICA, DISTRICT 50, LOCAL 12461
Case No. C-2503.-Decided May 01, 1943
Mr. Thomas E. Shroyer, for the Board.
Stenley c6 Smoyer, by Messrs. Harry E. Svwyer and Frank D.
Emerson, of Cleveand, Ohio, for the respondent.
Mr. Stanley Denlinger, of Akron, Ohio and Mr. John C. Donald, of
Columbia, Ohio, for the Union.
Mr. Raymond J. Compton, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended, charge duly filed on November 20, 1942, by
United Mine Workers of ' America, District 50, Local 12461, herein
called the Union, the National Labor Relations Board, herein called
the. Board, by the Regional Director for the Ninth Region (Cin-
cinnati, Ohio), issued its complaint dated November 21, 1942, against
The Kilgore Manufacturing Company, herein called the respondent,
alleging that the respondent had engaged in and was engagaing in
unfair labor practices 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 and notice
of hearing thereon were duly served upon the, respondent and the
Union.
With respect to- the unfair labor practices, the complaint as
amended during the hearing alleges in substance: (1) that since
about June 1, 1942, the respondent's officers and agents have urged
and warned its employees to refrain from becoming or remaining
members of the Union, have prepared and distributed anti-union
material and material calculated to influence employees to vote against
the Union at an election conducted by the Board on July 22, 1942,
and have threatened employees with loss of employment if they be-
caine active in the Union; '(2) that the respondent laid off or dis-
49 N. L. R. B, No. 145.
992 ,
THE KILGtORE MANUFACTURING COMPANY 993
charged, on dates respectively set forth, and thereafter refused to
reinstate, the following employees, because of their union member-
ship and activity:
E. R. Sites ------ June 9,1942 Wm. E. Brown_Aug.14,1942
Helen Parsons___ " 16, " Barie E. Noel__ " 14, cc
Helen Whitney__ " 16, " Theodore Budd_ " 14, "
Emma Parks____ " 16, " Fred Beaver ___ " 17, ,"
Edna Nicodemus_ " 16, " Lynn Benton___ " 17, "
Emma J. Justus_ 11, " Kenneth Cornell " 17, "
J. D. Flexser____ " 26, " Helen Cornell --- July 31,
" 18erClen Klin ,____g
and (3) that by said activities the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
The respondent, by its answer filed on December 5, 1942, denied that
it had engaged in the unfair labor practices alleged, and set forth
,certain affirmative allegations as to its reasons for the discharging,
laying •off, and refusing to reinstatd the employees above named; ,
Pursuant to notice, a hearing was held at Westerville, Ohio, from
December 7 to' 12, 1942, inclusive, before C. W. Whittemore, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board,
the respondent, and the Union were represented by counsel and
participated in the hearing. Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bearing
upon the issues was afforded all parties. At the opening of the
hearing the Trial Examiner granted in part and' denied in part a
motion by the respondent for a bill of particulars, and denied an
alter-native motion by the respondent to strike from the complaint
all allegations not made more definite in accordance with its motion
fo'a bill of particulars. During the hearing a motion by counsel
for the Board was granted, without objection by counsel for the re-
spondent, to strike from the complaint the name of Joe Sewell, whose
discriminatory discharge had been alleged therein. At the close of
the hearing, the Trial Examiner granted a motion by counsel for the
respondent to dismiss the complaint insofar as it specifically requested
dismissal of the allegations that the respondent had engaged in espi-
onage activities and had questioned its employees concerning their
union activities, and reserved ruling upon that portion of the motion
directed to the allegations that the respondent had persuaded and
warned its employees from becoming or remaining members of the
Union, and that it had discriminatorily discharged Lynn Benton and
Theodore Budd. He also reserved ruling upon a motion by the
respondent to dismiss the complaint in its entirety. These-motions
were later denied by the Trial Examiner im his Intermediate Report.
I
994 DEICTSIONS OF NATIONAL LA-BO,R RELATIONS BOARD
The rulings are hereby affirmed. Also at the close of the hearing, the
Trial Examiner granted a motion by counsel for the Board to conform
all pleadings to the proof. Daring the course of the hearing, the
Trial Examiner ruled upon other motions and upon objections to the
admission, of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. At the conclusion of the hearing,
counsel for the Board and counsel for the respondent argued orally
before the Trial Examiner. Although afforded an opportunity by
the Trial Examiner, none of the parties submitted briefs.
The Trial Examiner thereafter filed his Intermediate Report, dated
January 12, 1943, copies of which were duly served upon the parties,
'in which he found that the respondent had engaged in unfair labor-
practices within the meaning of Section 8 (1) and (3) and Section 2
(6) and (7) of the Act. He accordingly recommended that the
respondent cease and desist from engaging in the unfair labor practices
and that it take certain affirmative action to effectuate the .policies
of the Act. The Trial Examiner further recommended that the com-
plaintt be dismissed' insofar as it alleged that the respondent had
discriminated with regard to the hire and tenure of employment of
Clen Klinger. Thereafter the respondent filed exceptions to the Inter-
mediate Report and a, brief in support thereof. On February 15,
1943, the respondent also filed a motion to strike the Intermediate
Report and'to have issued in lieu thereof proposed findings of fact
aid conclusions of law by the Board, basing such motion upon the
alleged bias and prejudice of the Trial Examiner. The record, how-
ever, warrants no finding that the Trial Examiner was biased or con-
ducted himself in a manner prejudicial to the interest of the re-
spondent in the proceedings. The motion is hereby denied.
Pursuant to notice, a hearing was held before the Board on March
9, 1943, at Washington, D. C., for the purpose of oral argument. The
respondent and the Union were represented by counsel and presented
argument. The Board has considered the respondent's exceptions to
the intermediate Report and its brief in support thereof and, insofar
as the exceptions are inconsistent with the findings, conclusions, and
order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. TIIE BUSINESS OF THE RESPONDENT
The Kilgore Manufacturing Company is an Ohio corporation, hav-
ing its principal office and place of business in Westerville, Ohio. For
many years the respondent was engaged in the manufacture of toy cap
THE KILGORE 3,SANUFAC+TURING COMPANY 995
pistols, toy caps and plastics, and normally employed about 300
workers. It 'is now engaged in the manufacture of military pyrotech-
nics, all of which are sold to the United States Government. The
principal raw materials used by the respondent are those required for
the production of bombs, flares, fuses and signals. More than 75.
percent of such raw materials are transported to the respondent from
States other than Ohio. Approximately 100 percent of its finished
`products are shipped to points outside Ohio. The respondent's annual
volume of business, by value, is in excess of $500,000. The manufac-
turing operations are conducted in 2 main plants, identified herein as
Plant No. 'I and Plant No. 2. All of its products except incendiary
bombs are, made in Plant No. 1. For safety reasons each "plant" is
comprised of many separate buildings; Plant No. 1 having about 60,
and Plant No. 2 about 40. At the time of the hearing the respondent
employed about 500 employees.
II. TIDE ORGANIZATION INVOLVED
United Mine Workers of Alner-ica, District 50, Local 12461, is a labor
organization admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Organization o l the Union
Organization of the Union among the respondent's employees began
early in June 1942. The record reveals the presence of no labor or-
ganization among the respondent's employees prior to that time. On
June 3,1 a meeting with the union organizer was held at the home of
Emma Parks, whose discriminatory discharge soon thereafter is de-
scribed below. It was attended by Edna Nicodemus, whose discrimi-
natory discharge on the same day as that of Parks, is also discussed
below, and by 1 other employee. On June 7 another meeting was held
at Parks' home, attended by 15 or 20 employees. The Union circulated
organizational literature, which came to the attention of Robert Rick-
enbacher, plant superintendent, as did 'the holding of employee meet-
ings. Organizational meetings were also held on June 9 and 10 in a
local park. Other meetings were held, one at a local schoolhouse. ,
During June a number of union leaders were, as hereinafter found,
discriminatorily discharged. Charges were filed by the Union with
the Board on June 22. On July 9, the Union wrote to the respondent,
' Both Parks and Nicodemus were uncertain as to the exact date of this meeting.
Although Parks placed it in the latter part of May or early June, both Parks and Nico-
demus testified that it occurred the Wednesday before the first general meeting, which
other evidence establishes as having been held on June 7.
531647-43-vol. 49-64
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requesting reinstatement of the discharged employees. .Many of the
employees named in this communication are involved in these pro-
ceedings; there is no evidence that any of them were reemployed.
Also on June 22 the Union filed with the Board a petition for investi-
gation and certification of representatives. A Board hearing -was
held in Columbus on July 6, at which all parties agreed to 'a consent
election. This election was held on July 22. Other employees were
discharged soon thereafter.
Following the respondent's discriminatory discharges of union
leaders and other active members, its distribution of anti-union litera-
ture, and its other anti-union conduct, all of which is set forth in detail
below, many of the remaining employees dropped their union affilia-
tion or became inactive. The status of the Union at the time of the
hearing is best revealed by the testimony of witness Montgomery, who
when asked if he was a union member, replied, "I was, yes; I guess
there ain't none any more, are there?"
B. The posting and distribution of artti-union literature by the
respondent
On June 14, soon after the 2 union meetings in the park, General
Manager Watkins and Superintendent Rickenbacher prepared the
first of a series of notices, bulletins and pamphlets, which were brought
to each employee's attention either by posting or by actual distribution.
For the first time in at least 7 or 8 years, according to Rickenbacher's
testimony, these officials drew up in typewritten form, '•Factory Rules
and Policies," and thereafter posted them throughout the plant.
Prefacing the recital of 13 rules was the following statement:
As a result of war production, the number of our employees has
been greatly increased. , Because of the large number of new em-
ployees and because of the requirement of the government that we
safeguard our operations, the Company deemed it desirable to
issue in written form its factory rules and policies, many of which
have been in effect for some time and others have been recently
placed in effect due to war conditions..' Violations of the rules by
any employee will subject him to such disciplinary action as the
Company considers proper and fair under the circumstances of
the case.
Most of, the rules, thus. promulgated on. June 14, relate to routine
procedure to be followed by employees in performing their production
duties or in entering or leaving the plant. Rule 9, however, is as
follows :
9. No solicitation of any type will be permitted on company
property, except on behalf of charitable organizations, when
authorized by the, company.
THE KII.GORE MANUFACTURING COMPANY 997
'The only phrase in any of the 13 rules to be emphasized by underlining
was "no solicitation of any type," although • at least the first 5 rules,2
according to Rickenbacher's testimony, were required by the Gov-
ernment. Rickenbacher also testified that while Rule 9 was "old,"
it had never been enforced, and added that until its posting there had
been'iio "chartered" labor organization at the plant. He further testi-
fied that he had had no trouble with soliciting for tickets or raffles,
but that "they probably used to sell numbers around there; we had
that trouble and I tried to put a stop to that several times."
On the following day, June 15, Rickenbacher posted the following
notice, over his signature, on 16 bulletin boards throughout the plant:
BULLETIN
Personal relations within this factory have always been pleasant
and that policy wile continue. Threats of various natures have
been reported by some employees. Any such actions interrupt
work vital to 'far production, and directly affects the- quality of
the work, and is therefore cause for immediate discharge without
further notice.
Regarding his reason for posting the notice, Rickenbacher testified :
I had a number of employees come to me, different employees, and
they told me that certain parties out there had told them that
unless they signed a union card or something like that, that after
this union got in they were going to be fired; they were going
to be fined, and so forth; and they said there was a lot'of people
out there that had been brow-beaten that way and they wanted to,
know what I could do about it; and whether we could in any man-
,rner convey to them that this was not true.
He further testified that "all of" a dozen employees complained either
to him or Watkins, and that he had made a record of such complaints.
Although production of such records was requested by counsel for the
Union, none was produced by the respondent. Pressed as to his
recollections of names, Rickenbacher when first questioned on the sub-
ject, testified only as to 2 girls,both called "Pat" or "Patsy," who told
him that "they" were "hounding the dickens out of them," and that
it was going to cost them a lot of money if the Union got in. He there-
after admitted,.however, that one of,the complainants named anyone
engaging in the conduct to which' they objected.
2 These 5 rules are mainly concerned with proper identification of persons and articles
coming into and leaving the plant.
998 DECISIONS OF N'ATIONAL • LABOR RELAnONti BOARD
Also on June 15, Rickenbacher and Watkins had printed , and dis-
tributed to all employees as they left the plant , a document containing
the following text above the signature of Rickenbacher :
TO OUR EMPLOYEES
You recently received circulars distributed by the United Mine
Workers. A few days ago an editorial, was, published by the
Columbus Citizen referring to the present bitter fight between
the United Mine Workers and the C. 1. 0., and quoted what C. 1. 0.
journals think about the leader of the United Mine Workers.
As the late Will Rogers used to say : "All we know about it is what
we read in the papers." Below you'll find a copy of the Columbus
Citizen editorial which you may or may not want to consider.
Belated Disclosures.
Many bitter things have been said about John L. Lewis, but none
more bitter than what CIO organs are saying now. The CIO's
official "union news service" charges him with betraying his
United Mine Workers by-associating that iinion,with a conspiracy
"to disrupt labor and national unity" and "to preach hate, division
and dissension among Americans." Other publications, go
further,
"Textile Labor," official paper of the CIO Textile Workers Union,
calls Lewis-
An irascible, jealous, petty (overweeningly ambitious man
without a spark of personal loyalty in his ample bulk ...* Fascist
in thought and method ... An ungrateful hypocrite who de-
serted the President when he could not bend the President to
,his will; who deserted the CIO when he could not bend that to
support 4 is own delusions; who'deserted Phil Murray•when Mur-
ray °:.. refused to become merely another Lewis stooge."
Lewis has neither greatly or suddenly changed.' Whatever lie
is now, he was much the same during all those years when the CIO
organs denounced anyone who dared to criticize him or to say that
his methods were not serving labor's true welfare.
,As lately as the eve of Pearl Harbor, Lewis was willing to defy
the President and shut off the supply of coal to make steel for na-
tional defense, in order to enforce his demand that a few hundred
men in steel company mines be compelled to join his union.
Where were the CIO organs then? Where was Philip Murray?
The organs were supporting Lewis. And Philip Murray was
wrecking the National Defense Mediation Board by withdrawing
himself and other CIO representatives, because it had refused
THE KILGORE MANUFACTURING COMPANY 999
to grant the Lewis demand. Those who have been so closely
associated with John L. Lewis for years must have known him
for a dangerous man. They are very late in saying what he is.
NOW ABOUT JOINING A LABOR ORGANIZATION
Under the National Labor Relations Act you have the right to
name any person or organization you choose to represent you.
You do not have to choose or join any organization. There is no
law which requires or is intended to compel you to pay dues to,
or join any organization.
Our policy is to be fair to each employee in every way and if any
employee has a grievance, we'll be glad to have him drop in the
office and report it.
On July 1 another pamphlet, also prepared by the two officials, was
printed and distributed to all employees. Its text follows :
TO OUR EMPLOYEES
You. recently received,s circulars,, distributed by District 50 of
the United Mine Workers. That is the organization that has been
debating whether to remain under the domination of John L.
Lewis or to seek affiliation as a separate unit of the C. I. O. That
is the organization that wants you to turn over to it your bargain-
ing rights. %
In its usual name-calling fashion, District 50 attempts to lead
you to believe that the Company is refusing to follow the National
Labor Relations law. What is the fact?
The fact is that your Company has informed representatives
of the Labor Board and of the Union that' when and if, but not
until, the union proves according to law that it has a right to
speak for you employees, will that union be recognized. I $
The chances are that in due course of time you will have ail
opportunity to decide whether you want the United Mine Workers
to represent•you or not.
In the meantime, the Company is heavily engaged in war pro-_
duction. It will not participate in the mud-slinging campaign
which the United Mine Workers have invited, but asks each of you
to act on the facts as you know them to be and not be a party to
the false rumors and statements that are being circulated con-
cerning what is going on in this plant.
Sincerely yours,
THE KILGORE MANUFACTURTNG CO.
R. J. RICKENBACH ER, Supt.
1000 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
On July 6 the respondent distributed another. pamphlet, the text.
of which appears below. It also was prepared by Rickenbacher
and Watkins.
To Our Employees:
On July 1st we received the following letter from one of our-
employees :
"DEAR. AIR. RICKENBACHER :
We non-union workers at Kilgore's ', would ' like .ti statement-
from you giving our status in the plant. We also would like to,
know what protection Kilgore's will give us if there is an
election of the Union and they take over the plant . We have
been told in advent (sic) the Union steps in it will cost us
.$25.00 to hold our jobs. We have also been told that there are
only 57 employees who have not joined the Union.
We have no quarrel with Kilgore 's and feel a great loyalty 'to,
those who gave us employment when we asked for it, but the
pressure under which we have been working has caused us a
great deal of worry and we would like some definite statement
direct from Company officials:"', - r
Sincerely,
In order that all employees mays be similarly informed we will
state the questions raised by this letter and our answer to them.
1. Q. What is the status of the non-union workers in our plant?'
A. Each employee is entitled to fair and courteous treatment
from the Company and from his fellow employees. Each is
expected to do his job to the best of his ability . In. other words,.
each employee in the plant - occupies the same status as every
other employee.
2. Q. What protection will the Company give to non-union
employees if the Union wins an election at the plant?
A. If the Union does not win the election the matter will be
settled. If it wins the election , this will not mean that any' one
will "take over the plant ." If the Union is certified by the
N. L. R. B . it will be recognized as the exclusive bargaining
agency for all the .employees belonging to the bargaining unit.
Then a committee chosen by the Union will attempt to negotiate
an agreement with the management covering wages, hours and
working conditions . If the Union and the Company cannot
agree it is probable that a survey will be made by the War Labor
Board of the wages and working conditions being paid and
maintained by other employers in our locality and in' the in=
dustry. We believe our present wages to be substantially above
these levels. Then if we can't agree the War Labor Board will
decide. Whether or not membership in the Union will be re-
THE KILGORE MANUFACTURING COivIPANY 1001
quired under the agreement is one of the subjects for negotiation.
The Company's opinion is that Union membership should not
be required. Under such conditions union and non-union em-
ployees will work together and working conditions will be the
same for all. In any event there will be no discrimination
between employees by the management.
3. Q. Will non-union employees have to join the Union and,
will they have to pay,$25.00 to hold their jobs?
A. As stated in the previous answer, it is the Company's
opinion that union membership should not be required in order
to hold a job.
4.Q. Are there only 57 employees who have not joined the
Union?
A. We don't know how many employees have joined the Union.
Joining the Union means making application for membership
and paying an initiation fee: Signing an authorization card
is not joining the Union. Practically speaking, in most cases,
the authorization cards are a pre-requisite to the holding of an
election. , At the N. L. R. B. conference today the Company
learned that the names of 307 of the Company's employees were
not on the authorization cards submitted to the N. L. R. B.
This number constitutes a majority of those eligible to vote.
5. Q. What statement has the Company to make about the
pressure under which the non-union employees have been
working?
A. Only this. The right to join a Union is no greater than
the right to refuse to join a. Union. The election is the method
provided by the law under which, by secret ballot, employees
may vote their honest opinions on the matter of being repre-
sented by a Union. Like any other contest between employees
it should be carried on with fairness and mutual respect for
each other's opinions. The Company requests, however, that no
campaigning be done on Company time or Company property by
anyone.
Today, in order to have this contest decided in the American
way as soon as possible, the Company agreed with the Union
and the N. L. R. B. that an election be held Wednesday, July
22nd. The Board's elections have always been conducted fairly
and honestly. Each employee votes by secret ballot and he or
she may vote for or against union representation. The majority
of those who vote will decide the election.
Meantime, our big job is for Uncle Sam, and he needs our
.wholehearted and loyal cooperation.
Sincerely,
THE KILGORE MFG. CO.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find no merit in Rickenbacher's implied claim that it was neces-
sary to make reply, to hundreds of employees, to a letter received
from one 'employee. Rickenbacher admitted that it "was a funny
thing" that those who' allegedly complained to him did not name any
employee urging union membership in extravagant terms. Even
if they occurred, we view the incidents, as did the Trial Examiner,
as having no serious import. The respondent's notice of June 15
stated that making "threats of various natures" was cause for imme-
diate discharge. It is reasonable to believe that'if Rickenbacher had
really considered that his orders were being disobeyed, he would have
made a genuine effort to determine which employees, if any, were
thus violating instructions. He did not do so.
In determining their purpose and effect, the above notices must be
viewed, not separately and apart, but as a series of messages to em-
ployees which, as a series, was but one phase of the employer's whole
conduct toward its employees during the same period, as it related
to union organization. It has been found that the Union began
organizing during the first week in June. On June 13, officers were
elected: On that day, as found below, the.respondent sent to the union
president his "separation slip" and thereafter discriminatorily refused
to reinstate him. On June 14, for the first time in many years, the
respondent posted "Factory Rules and Policies," the single item of
which to be emphasized by underlining prohibited "solicitation of
any type." On June 16, as found below, the respondent discrimina-
torily discharged the union vice president, its financial secretary and'
a committee member. Oil or about the same date the respondent dis-
tributed to each employee the reprint from a newspaper which attacked
John L. Lewis and the Union. On July 1 the respondent gave to each
employee the notice which, while stating that "you will have an.oppor-
tunity to decide whether you want the United Mine Workers to repre-
sent you or not," also declared:
That is the organization that has been debating whether to remain
under the domination, of John L. Lewis or to seek affiliation as
a separate unit of the C. 1. 0. That is the organization that wants
you to turn over to it your bargaining rights.
And on July 6, the same day that the respondent agreed to a consent
election, it distributed the pamphlet quoted above, which contains,
among other statements, this significant advice, "If the Union does
not win the election the matter will be settled."
The above notices plainly expressed the respondent's hostility toward
the Union, and conveyed that hostility directly to each employee.
Rickenbacher's fragmentary and incredible testimony wholly fails to
convince us that the respondent issued this series of communications
to its employees simply for the purpose of maintaining order in the
q
THE KILGGORE MANUFACTURING COMPANY - 1003
plant or for any other legitimate purpose incident to management.
We are otherwise convinced that they were designed to serve as a
potent force in coercing employees to refrain from becoming, or re-
maining, members of the Union. Coincident with the discharge of
union officers and leaders, their unmistakable effect was to discourage
. membership in that organization.
We find, as did the Trial Examiner , that the distribution of the
bulletins and pamphlets , above described , was an integral part of the
respondent 's anti-union campaign and constituted interference with,
restraint, and coercion of the respondent 's employees in the exercise
of the rights guaranteed in Section 7 of the Act.
C. The discharges and refusals to reinstate
1. The refusal to reinstate Roscoe Sites
(a) Background; the fire of June 9; the respondent's failure to
reinstate Sites thereafter
Roscoe Sites, president of the Union, was employed by the respond-
ent for a short period in 1929 and 1930 and continuously from 1932
until his lay-off on June 9, 1942. Before the conversion of the respond-
ent's plant to the production of war materials, Sites had worked in
the foundry. His work there had been sufficiently satisfactory so
that during December 1941, while the regular foundry foreman was
absent, Sites acted in his stead. The foundry was closed in March
1942, and Sites was then transferred to guard duty, and continued on
this assignment until May. At his own request he was then trans-
ferred to Plant #2, where he served as a "bomb loader," inserting the
first fire of powder into incendiary bombs. Sites and Montgomery,
the latter having had previous experience in this work, were assigned
as operators of the loading machine upon the establishment of a second
shift. '17bereafter a third shift was started and other operators em-
ployed. Materials used by this loading machine came to it from a
large Thermite loading press. On June 9, a fire destroyed the large
Thermite press; an accident which made necessary an almost complete
shut-down of Plant #2, since other operations, including that on which
Sites was engaged, depended upon the operation of the Thermite press.
Sites reported for work on June 10 and inquired of Assistant Superin-
tendent Fred Winckelman when his work would resume. The latter
replied, "We are in a mess, and I will let you know when to come back
to work." On June 13, the respondent sent to Sites a separation slip
which stated, "Fire caused shutdown."
On June 15 operations were resumed at Plant #2, by using a small
Thermite press, which required fewer employees than the large press.
Although on that date Montgomery was recalled to continue as oper-
1004• ' DE'C'ISIONS OF NATIONAL LABOR RELATIONS BOARD
ator of the bomb,loading machine on the second shift, Sites,was not
sent for. In his stead Winckelman assigned Jesse Hollis, who, previ-
ously had been an "in between" man, a trucker or helper, who pushed
materials away from the machine.. Hollis had also worked in the
foundry, having first been employed by the respondent about a year
before the foundry was closed. He was transferred to ' Plant #2
a few days after Sites. On the day operations of the bomb loading
machine were resumed, Montgomery, according to his credible testi-
,mony, asked Winckelman where Sites was, and the foreman replied
-that he had "forgotten" to recall him.
At the Board hearing held on July 6, above referred to, Sites was
assured -by the respondent's officials that he, and other employees
involved in these proceedings, would be back to work by the 15th of the
month, at which time it was contemplated that the large press would
be put back-into operation. Sites later telephoned Rickenbacher con-
cerning his reinstatement, but was merely told by Rickenbacher that
lie would "keep him in mind." While it appears that the large press
resumed operations only upon a very limited scale and shortly there-
after was again withdrawn from use,' over 200 new' employees, -in-
cluding 4 guards, were hired by the respondent in other departments
after June 9. Sites, however, was never recalled to work, although
on previous occasions when lie was laid off, he had always been notified
to return.
(b) Sites' union activities; conclusions
Sites was elected president on June 13, the same day that the re-'
spondent sent him his separation slip. Thereafter he passed out
leaflets at the plant gates, on one occasion giving a leaflet to Ricken-
bacher. The respondent concedes that it had knowledge of his union
membership at the time of the resumption of operations following the
fire; Winckelman testified that after the organizational meetings of
the Union, described above, he learned that Sites had been elected
president.
The respondent contends that Sites was not recalled because he was
not selected by the foreman, on the basis of "skill, aptitude and appli-
cation" to work, to be among the reinstatements after the fire when
the fore was reduced in number. It further contends that since that
time there has been "no occasion" for his reemployment, and that it
has not "felt" that the best interests of "war production" would be
served by his reemployment. The only, evidence offered by the re-
spondent'to support its contention that Sites' "skill, aptitude and
' At about the time the large press was returned to operation , the Government reduced
the amount of its order , and it was necessary to run only one shift, instead of the
customary three.
THE KILGORE MANUFACTURING COMPANY 1 005
application" was less than, that of other employees who were reinstated
was in the oral testimony of Winckelman, who stated that he made
the selections in accordance with his "estimate" of the employees "best
suited" for the jobs. The record is without evidence, or claim, that
work :on the,bomb loading:,machiiie,was more demanding in "`skill and
aptitude" after the fire than before; nor did Winckelman testify that
Sites' work had theretofore been unsatisfactory to him.' Montgomery
testified that he had never heard any complaint about Sites' ability, and
the latter denied that he had ever been criticized as an employee. Nor
did the respondent offer any evidence to support, or even explain, its
allegation that it had not "felt" that the best interests of "war produc-
tion" would be served by his reemployment. The respondent's own
records refute its claim that there has been "no occasion" for his
reemployment. The failure of the respondent, on June 19, to offer -
Sites a job as guard instead of hiring a new employee for that position,
one in which no question was raised as to his ability to fill, and its
failure to offer him one of the numerous positions filled by new em-
,,ployees following, formal,:application for,his reinstatement by, the
Union on July 9, convince us, as it did the Trial Examiner, that the
'respondent had no intention of rehiring him for any position when his
regular job reopened on June 15. We therefore conclude, and find,
that the respondent's contentions as to its failure to reemploy Sites
are without merit. The failure to reinstate Sites on June 15 was the
first of a series of discriminatory acts on the part of, the respondent,
including the posting and distribution of anti-union literature, and the'
discharge of other union officers on the following day, as described
below.
We find that the respondent, by failing and refusing to reinstate
Sites to his former position on June 15, discriminated in regard to his
hire and tenure of employment, thereby discouraging membership in
a labor organization and interfering with, restraining, and coercing
its employees in'the exercise of the rights guaranteed in Section 7 of
the Act.
2. The discharges of Helen Whitney, Helen Parsons, Elllma Parks,
and Edna Nicodemus
(a) Background; the respondent's contentions in general
The respondent contends that Parsons, Parks, and Nicodemus were
laid off indefinitely on June-16 because, by their activities during
4 winckelman's only comment upon Sites' relative ability 'was contained in the follow-
ing statement :
In Montgomery I had one dog-gone good worker. The other one (Sites] I cannot
say that about bins.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOiAStID .
working hours, they were "adversely affecting the- production of the,
entire department" in which they worked, and that Whitney was like-
wise laid off on the same day because she was, "deliberately impeding
production."
As to; production in general in Plant #1, where each of these em-
ployees worked, Rickenbaclier testified that before the first of June,,
production had been "fairly" regular but that in "the early part of
June, things became very erratic." Other excerpts from his testimony
on this point follow :
There was too much variation in production from day to day
and the production fell off; things just kind of went to pieces. I
had been putting in a lot of time in over at the other plant getting
that running. When I saw this I had to come back over to the
plant and see what was going on, what was causing this.
... it didn't seem as though people had their minds on their-
work, and were fussing, running around.
I just saw people talking too much together . . . not paying
attention to their work.
He also testified that because employees "weren't paying'any attention
to their work" there was a drop in the quality of their work, and de-
clared that about the first of June there were "wholesale rejections"
of products by the "government inspector." However, George M.
Hatch, who had been stationed at the respondent's plant as resident
inspector of material for the War Department, testified unequivo-
cally that there were no rejections during this period, and that all re-
jected products were produced either before or after the period of
union organization. In view of Hatch's testimony, we concur in the
finding of the Trial Examiner that Rickenbacher's testimony on this
point is unworthy of credence.r,
In support of Rickenbacher's testimony regarding deficiencies in
production allegedly occurring early in June, the respondent intro-
6 That Rickenbacher was in serious error as to recollection. if not striving purposely
to distort the true situation, is plainly apparent in the following example of variance
between his testimony and that of Hatch.
Q. (By counsel for the respondent ) Will you state whether or not at some time about
the first of June there have (sic) been any such wholesale rejections? [Italics supplied.]
A. (Rickenbacher.) Oh, gosh, yes.
Q. Do you remember any particular item?
A. There is one item that we had 40 lots held up; that is 800,000 pieces
Q. Any others?
A. Yes, there was another item we had, I believe it was 12 lots held up
f h 4 4 R 4 •
'Q. (By counsel for the respondent ) Mr. Hatch, Mr. Rickenbacher has testified about
some 800,000 M-10A2's (sic) which were rejected ; when was that?
A. That was in April
Q. Then there were some lots of M-25's that were rejected. When-were those?
A. That was in August, the latter pai t of July.
Q. How many lots?
A. There were 10 lots. [Italics supplied ]
THE KILGORE MANUFACTURING COMPANY 1007
^duced into evidence production records for the various -divisions -in
Plant #1. These records, however, afford little, if any, substantial
support for Rickenbacher's sweeping allegations. Rickenbacher
described the M25 and the M200 divisions in Plant #1, where the 4
employees in question were employed , as being the "worst" so far as
production wns concerned. The average individual daily production
figures"submitted by the respondent show that while the respondent's
claim of decreasing production is sustained to a minor degree in the
M25 division , it is clearly refuted as to the M200 division . In'the M25
division, the average, individual daily production fell from 29 for the
last 2 weeks in May to 27.7 for the first 2 weeks in June; in the M200
division, the individual average rose from 117.5 to 176.8 for the same
period. With regard to the respondent 's claim of erratic production,
the total daily production figures in the M25 division show extremes
of 1965 and 720 for the last 2 weeks in May, whereas in June they were
only 1440 and 1080, thereby refuting the respondent's contention with
respect to that division. In the M200 division, the daily production
figures show-extremes of 12800 and 4080 in May, whereas in June they
were 26540 hnd-,'6000;- thus lending some support to the respondent's
contention. Despite the claim of Rickenbacher that production
around the first of June "fell off " and its "quality was down," the
respondent maintained in its brief that the only issue tendered was
one of "erratic production ." In view of the breadth, inconsistency,
and generality of the respondent 's contentions , only part of which are
sustained and the greater part refuted by its own records and by the
testimony of Hatch, the ordnance inspector , we find that they are sub-
stantially without merit. Furthermore, whatever deficiencies in pro-
duction may have attracted the respondent's attention early in June,
it is clear that in most instancQs , they existed prior to that time and, of
themselves, a're' no ,proof. -that they - were attributable to these 4 em-
ployees ''wh6 ',the 'respondent, selected for discharge. Nor does the
record establish,that whatever improvement occurred after the dis-
missal of these employees was attributable mainly to their replacement
by more efficient workers. In this regard , cognizance is taken of the
fact that the respondent was in the initial stages of its war produc-
tion, and it is only reasonable to assume, therefore, that the discrep-
ancies appearing in the manufacturing processes were caused by
various factors normally present in the change from peace time opera-
tions to the -production of,war - materials , and that their gradual elim-
ination would result'from increased . familiarity with, and adjustments
necessarily made pursuant to, the changed niethods ` of operation.
(b) The respondent's contentions as to the discharge of Whitney -
Rickenbacher testified that he observed production for 10 days or 2
weeks, that conditions became "worse and worse ," and that he finally
a
1008 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
decided he would "have to lay somebody off." Concerning the M25,
department, where Whitney was employed in a single building with
two other girls, he stated that he "started to watch them and see what
was going oli out there." He further testified :
D
I noticed this Helen Whitney spending a lot of time away from
her department; I saw her in other departments. She was sup-
posed to be in the M-25-department. I saw her'both in the
M-10 and in'the M-200, where she had no right to-be and I saw
her out in the yard a good many times.
According to his testimony, Rickenbacher then asked Assistant Super-
intendent Grosh for individual production records and found that
Whitney was below the other girls in the amount she produced. De-
spite the fact, admitted in his testimony, that he had known Whitney
for "a number of years," and that she was a fast worker, Rickenbacher
did not talk to or warn her but, according to his testimony, let
her "hang" herself.
Together with the other above-named employees, Rickenbacher dis-
missed Whitney on June 16. According to his testimony, this action
was not a discharge, but a temporary lay-off during which he could,
"make 'an analysis of the situation." "He'e further stated:
I figured that these people were the ones that were the cause of
it but if they weren't I wasn't going to hold it against them. I
would have put them back to work and laid off another gang.
Immediately after June 16, according to the superintendent, the
"industry" of the employees improved, production became more "con-
sistent," and he therefore "figured we were doing very well without"
the above-named- employees.
Whitney had loaded tubes in the M25 division only a week prior
to her discharge. Previous to being assigned'to this job, she had been
engaged for a long time in loading'"starter cartridges" When leaving
t,he'latter job for the new one, the respondent, according to Whitney's
tincontradicted testimony, assigned 2 girls to do the work which she
'had been accomplishing alone. The "quota" on her new e job was
about 10 "trays" a day for each of the 3 girls. On the first day at her
new task, Whitney produced 6 trays, and 8 on the day of her discharge.
Her testimony is undisputed that Grosh told her, during the last week
of her employment, that she "was doing all right."'
6 Both Grosh and Rickenbacher testified that Whitney had previously done this work,
and therefore was not inexperienced in its performance . Whitney denied that she had ever
performed this -particular task before . We credit , as did the Trial Examiner , Whitney's
denial. ,
I" previously stated herein , the respondent 's records ' show that the average- indi-
vidual daily production in the M25 department decreased but slightly during the first half
of June over the last half of May , and that Rigkenbacher 's claim that the earlier period'
was "regular" and the later "erratic" was clearly unfounded.
THE KILGiORE MANUFACTbRIN-G COMPANY 1009
Nor does the testimony of Rickenbacher and Grosh, that Whitney
was often absent from her work and in other departments, bear scru-
tiny in the light of morelcFedible, evidence. Whitney denied that she
was absent except when necessary. Grosh testified that only on one
occasion (lid he warn Whitney to stay in her building, and that on this
occasion she was walking through the yard. Both Taylor and Kegg,
who worked with Whitney, testified that she left the building only on
duty and 'that they never heard any complaint about her. Grosh,
moreover, corroborated the testimony of both Whitney and Taylor
that it was necessary to leave the building occasionally to obtain
stock, and that there was no rest room in the building where the girls
worked. Rickenbacher's uncorroborated testimony that he saw Whit-
ney "spending a lot of time away from her department," when con-
sidered in relation to his testimony that he did not speak to her about
it, is not credible, since it is difficult to believe that an employee who
had given satisfactory service for approximately 10 years would be
permitted to "hang" herself without any admonition. We find, as
did the Trial Examiner, that the respondent's contentions that Whit-
ney, was unduly absent from her work; ,and that she "deliberately,"
or otherwise, impeded production, are without' merit.
(c) The respondent's contentions as to the discharge of Helen Parsons
At the time of her "lay off" on June 16, Parsons had been employed
for many months assembling M-200's, which Rickenbacher described
as fuses for gas or smoke bombs. She was one of an assembly line of
from 12 to 15 girls. Barbara Dietrich was her forelady. Parsons was
a fast and skilled employee, instructed new workers, and frequently
finished her daily quota before the close of the shift and either assisted
other girls or was assigned by Dietrich to special tasks.
As noted above, Rickenbacher testified that, upon investigation, he
found this department'to be one of the "'orst" with respect to produc-,
tion and quality. He gave specific testimony, however, only as to
Parsons. As to her he stated :
(an) employee came into my office one day and she was in tears and
she told me that she was going to have to quit; she couldn't stand
it any longer. .I said "Patsy," what is the matter?'. - She just said
"I just can't put up with Helen out there any longer. She just
bulldozes and hounds me all day long and' I'm going to have to
leave."
I made it my business .... there is more than one door to that,
department and generally I came in the east door. in going-
"Rickenbacher testified that Patsy Orendorf and Pat Deering had complained to him,
but he did not specify which of the two was the "Patsy " referred to above . Neither of
these employees was called as a witness.
1010 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
through the machine shop I could come in the west door . . . When
you get in they do pretty well when they see you coming, and I
caught her several times almost over oh this young lady's bench.
Not only that, I saw her in other departments running around.
I made my business watching Helen Parsons.
I le'further testified :
One day she was going at it pretty hard and heavy and I leaned.
over and whispered in her ear, "Helen, if you don't cut that out
I'm going to can you ..." `
The situation became "worse and worse," according to the superin•
tendent, and he decided to lay tier off.
As to'production in general, Assistant Superintendent'Grosh testi-
fied that the particular department in which Parsons worked was pro-
ducing "just about" the same total each day before her discharge.9 As
to Parsons' work, over which he had supervision, he testified that it was
"all right." Parsons testified that Rickenbacher had never criticized
her work, and that on one occasion when she was working„in the
carpenter shed Rickenbacher told Grosh in her presence that he wanted;
her to assemble hand grenades because she was a "darn good little as-
sembler." Griffith and Legg, fellow workers who were also present on
this occasion, corroborated Parsons' testimony. Grosh also testified
that there was nothing unusual about,the girls talking while working,
and in view of his further testimony that no one ever had complained
to him about Parsons, we are in accord with the finding of the Trial
Examiner that Rickenbacher's unsupported statements that he had
received a complaint from' "Patsy" concerning Parsons, that 'he had,
observed Parsons "running around," and that lie had warned her to
stop talking, is not deserving of credence.
We agree with the Trial Examiner that the evidence does not support
the respondent's contention that Parsons was "laid off" because she
was "adversely affecting the production of the entire department,"
and accordingly find that such contention is without merit.
(d). The respondent's contentions as to Parks and Nicodemus^
For about a month before their discharges on June 16, Parks and
Nicodeinus were employed, by special assignment, in the taking apart
and reassembling of defective and rejected parts,, all of which, the
respondent conceded, had been originally produced, between April 28
and May 5, nearly a month before union organization began. Because
Y As we found above, according to the respondent 's record, the average individual pro-
duction . in,the M200 division rose from 117.5 for the last 2 weeks in May to 170 . 8'for the
first 2• weeks in June, contrary to Rickenbacher's claim that early in June this division
was one of the "worst" with respect to production.
THE KILGORE MANUFACTURING COMPANY 1011
this task required, special care, no "quota" was set or observed. The
testimony of Parks is unrefuted that she and Nicodemus, together with
three other girls, were assigned to this job by Forelady Dietrich and
told that they were designated because of her trust and confidence in
them.
The respondent contends that the two employees were "laid off"
because they were "adversely affecting the production of the entire
department." In support of this claim, Rickenbacher testified that
they "didn''t stay" where they were supposed to work. He also stated'
that he saw them "elsewhere," "talking to people" and that he "imag-
ined" they were soliciting for the Union. At one point in his exam-
ination the superintendent testified that he "never directly talked to
Emma 'Parks or Nicodemus" about their conduct, but that he ,"did
warn" them. Parks and Nicodemus admitted that. the Saturday
before they were laid off they overheard Rickenbacher tell Grosh to
separate them, and that Grosh replied that their being together made
no difference since he was going to transfer them to another depart-
ment the following Monday. From the foregoing, it would appear .
that' while-'Rickenbacher may have directed his attention to Parks
and Nicodemus, it was not because of any deficiency in their produc-
tion. Grosh testified that he had nothing to, do with their discharges
and stated that he had no complaint about their work. He further
testified that the two girls were engaged in "a difficult job" that pre-
vented the keeping of any production record. In view of this credible
statement, Rickenbacher's general testimony as to "improvement" of
production after the discharge of the four girls clearly could not
validly apply to Parks and Nicodemus.
We find,,as did the Trial Examiner, that there is no merit in the
respondent's contention that Parks and Nicodemus were "adversely
affecting production."
(e) Union activities of the four employees; conclusions
Both Whitney and Parsons, at the time of their dismissals, had
worked for the respondent intermittently since 1929. Parks and Nico-
demus had been employed continuously for about a year.
Parks, Nicodemus, and Whitney were leaders in the union organiza-
tion and joined in June. As found above, the first organizing meet-
ings were held at Parks' home on June 3 and 7, and were attended by
Nicodemus, Parsons, and Whitney. Parks was vice president of the
union; Whitney financial secretary; and Nicodemus was on the nego-
tiating committee. Parsons wore her union button in the plant and
solicited memberships -outside. Rickenbacher admittedly had knowl-
edge of their union sympathies and activities. When asked if he didv
5;1647-43-vol. 49--65
1012 DE'C'ISIONS OF NATIONAL LABOR RELATIOICS BOARD
not believe , before their discharge , that these employees were soliciting
for the Union, he replied.:
I wouldn't be surprised . I imagine they were. - They were doing
something that shouldn 't be done in that plant.
Rickenbacher , who was preparing and publishing anti-union mate-
rial on the same day the dismissals occurred , alone decided upon and
ordered the discharges . Grosh, assistant superintendent immediately
in charge of their work testified that "usually " he and Rickenbacher
discussed temporary lay-offs He also ' testified that before the sum-
mary action taken in these four cases he "knew nothing " about them.
With particular respect to Whitney, Grosh admitted that sometime
after her discharge he suggested that she "go out and talk to Bob"
Rickenbacher. Whitney testified that he also suggested that she tell
Rickenbacher that she had had nothing "to, do with. it," which she
reasonably interpreted as referring to the Union. Grosh did not
deny making this added suggestion, but stated that -he did not "re-
member" it. We credit Whitney on this point, as did the Trial
Examiner.
The evidence clearly establishes,that the respondent had no intention
of simply "laying off" these employees, as it alleges in its answer.
When they received their separation slips, Parsons and Whitney
were given their wages in full, and also their savings funds, contrary,
to the respondent's practice, where lay-offs were temporary. Nico-
demus had no savings due her. Parks was given her separation slip
and check for full wages. She went immediately to the office and
asked Rickenbacher, "If I have been fired, I would like to have my
Christmas savings." These were promptly given to her. Thus, by
June 16, the respondent had rid itself of the "union president, vice
president, financial secretary, and a member of the negotiating
committee.
In view of all the surrounding circumstances, including the re-
spondent's published hostility toward the Union and its failure to sup-
port the alleged reasons for the dismissals with credible evidence, we
are convinced, as was the Trial Examiner, that the discharge of Parks,
Nicodemus, Parsons, and Whitney, was discriminatorily effected be-
cause of their leadership and activity in the Union and was designed
to discourage membership in that organization.
3. The respondent's failure to reinstate Jacob D. Flexser on July 20
Flexser was first employed by the respondent on May 19, 1942, and,
although a machinist by trade, was assigned to the maintenance gang,
where he performed carpenter work under Foreman David Hartsook.
After about a week at this job, he was transferred to a bomb-loading
THE I iLG'ORE MANUFACTURING COMPANY 1013
machine. Together with other employees, the fire of June -9 caused
his temporary lay-off. He was recalled on June 17 and again assigned
to Hartsook's crew. Until June 26 he assisted this foreman in laying
a new sidewalk. On that day the job was finished. Hartsook reduced
his crew by two men, laying off Flexser and one other. Since.that date
Hartsook has not increased his force.
When laying off Flexser, Hartsook suggested that he see Assistant
Superintendent Winckelman, who might have work for him. Flexser
went to Winckelman, who told him he would let him know as soon
,as the damaged machine was repaired and ready to run. The press
was repaired and operations resumed early in July, although, as indi-
cated above, it was only on a limited scale. Flexser was not recalled.
On July 9 or 10 the respondent received a letter from the Union pro-
testing against the respondent's discriminatory treatment of Flexser,
Sites, and other union members herein involved, and asking for their
reinstatement. Flexser, however, was not reemployed thereafter.
The respondent contended in its answer that Flexser has not been
reinstated because of "lack of work." The employment records, pro-
duced by the respondent, however, completely refute the allegation
that no work had been available since June 26. • These records show-
that from July 20 to the date of the hearing the respondent hired about
50 male employees. Hugh Tuttle, the first of such new employees, was
hired on July 20 to work in the warehouse. The respondent adduced
no proof that Flexser could not perform the work thereafter per-
formed by Tuttle. In oral argument before the Trial Examiner, coun-
sel for the respondent claimed that Flexser was not reemployed be-
cause he "never contacted anybody about a job" after the lay-off of
June 26. When asked, "Didn't you know Flexser wanted a job back
there," counsel replied, "Suppose he did? That is not saying we have
to hire him." After it was pointed out that the respondent had re-
ceived notification from the Union on July 9 that Flexser sought,rein-
statement, and when asked why Flexser was not offered a job when
vacancies thereafter occurred, counsel answered :
The only reason I can give is that if anybody was hired by Fred
Winckelman . . . when J. D. Flexser might have been hired,
if that occurred, (it) is because Fred Winckelman never heard
'of that letter.
-e
Winckelman was not questioned with respect to Flexser. The latter's
testimony is unrefuted that on June 26 he applied for work, at the
suggestion of Hartsook, and that, as found above, Winckelman prom-
ised to send for him. In view of the foregoing, we conclude, as did'
the Trial Examiner, that there is no merit to the respondent's con-
-tentions.'
J
k
1014 DECISIONS of NATIONAL LABOR RELATIONS BOARD
The evidence is unrefuted that Flexser joined the Union early in
June and was a member of the Executive Committee. According to
Flexser's testimony, which we credit, as did 'the Trial Examiner"
Rickenbacher came out'to where Flexser was working a few days be-
fore his lay-off on June 26 and, in conversation with Hartsook nearby,
looked toward,Flexser and inquired of the foreman if "that man
belonged to the Union." Hartsook replied that he thought ,he did.
After Rickenbacher left, Hartsook approached Flexser and demanded,
"Ain't you gonna say something?" Flexser replied, "No, I just don't
sell my own class, that's all." In addition to this incident, which.
reveals that Rickenbacher knew or suspected Flexer's union affiliation
shortly before his lay-off, the respondent, was unmistakably made
aware of that fact upon receipt of the union's letter of July 9.
We ate convinced that the failure to recall Flexser when work
became available on July 20 was part of the respondent's campaign
to rid itself of leaders and members of the Union in order to discour-
age membership in that organization. We find, therefore, as did the
Trial Examiner, that- by refusing to reemploy; Flexser on July 20,
the respondent discriminated against him 'with respect to his hire and
tenure of employment.
4. The discharge of Helen Cornell, on July 31,, 1942,
(a) Events leading up io her discharge
Before her discharge on July 31, Helen Cornell had been intermit-
tently employed by the respondent since 1928, and continuously since
1936. She is the wife of Kenneth Cornell and the sister of Fred
Beaver, both of whose discharges are discussed below. During her
entire employment Cornell worked under the supervision of Foreman
David Barton and his assistant, Carl Beaver; who was also her brother.
In ,,March or April 1942, 'Mien the `,`chip sliop",in which' she had always
worked, was converted to war production, Cornell was assigned to
assembling "Mark 4's," Navy-flares. She was one of about 15 girls in
an assembly line. Two such assembly lines were engaged in the assem-
bly of flares ; each employee in 4 line having her operational counter-
part in the other.
It was'Cornell's specific task to put a certain marine compound upon
the "heads" or "nose pieces," which previously had been assembled
by a crew of men working in another part of the room. Before apply-
ing this compound' it -was necessary to heat each head. on an electric
stove placed before her on the bench. It was also necessary that she
inspect each head before applying the compound. Defective heads
were conveyed by her back to the assembly crew. After applying the
THE KILGiORE MANUFACTURING COMPANY 1015
compound, she passed the head to Pearl Zimmerman, next in, line,
whose task it was to screw "pellets" into the head, and attach the
head to the body of the flare. Operations performed by Zimmerman
took longer than those by Cornell. It was essential that the head
still be warm when Zimmerman attached it to the body; otherwise the
compound was ineffective. Cornell frequently had time to, and did,
assist Zimmerman in her work. Zimmerman ; on the contrary, never
helped -Cornell. The flares were then passed down the assembly line
for further operations. Thus, upon the speed of Zimmerman, and
the assistance she received from Cornell, depended the production of
the line.
The respondent contends that Cornell was discharged because her
work was unsatisfactory and because she slowed down production by
refusing to cooperate with her foreman and fellow workers. Al-
though Beaver had had supervision of her work since 1928, he admitted
that the first time he asked her to speed up production was about a
week before her discharge. On this occasion he asked Zimmerman
and Cornell to assemble one-half "tray" more a day. Zimmerman
gave-him`no reply. Cornell answered that she could not put out any
more. Beaver reported this to his superior, Barton 10 Beaver did
not, however, make a similar request of the two girls doing corre-
sponding work on the other assembly line, although both lines were
turning out an equal number of "trays" each day. Barton testified
that Beaver had acted upon his instructions in asking Cornell for
more production. Thereafter, according to his testimony, he
`.watched" her, and reported to Rickenbacher, who told him that if
Cornell did not do her work he should discharge her.
Rickenbacher testified that before Cornell's discharge, and while
he was still "investigating" various departments, he noticed that
Hollis, one of the girls some distance beyond Zimmerman and Cornell
in the assembly line, "never did any work," but "sat with her hands
on the table." . After observing this,a number of, times, according to
his testimony, he spoke to Barton about it. He further testified that
Barton then told him that it was not Hollis' fault, but Cornell's, who
was not supplying the line with work. "And so," testified the super-
intendent, "Dave fired this Cornell girl." Rickelibacher's ' testimony
on this point deserves'no credence. It was not supported by Barton
or Hollis. It is obvious that if Hollis had had no work, other girls
below her in the same line also would have been idle.
When, asked if he had. ever seen "any time' when Cornell was hold-
70 The Trial Examiner found that it was apparent at the hearing that ill feeling existed
between Cornell and Beaver, and the latter admitted on the witness stand that he had not
been friendly with his sister because of a family quarrel
1016 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
-ing up Zimmerman in her work , Barton - replied as quoted in the
following colloquy : -
A. When she was out in the rest room Zimmerman would do
both jobs and vice versa , and they would do it only half as fast.
Q. You have seen Cornell out in the rest room?
A. Certainly , they all go out to the rest room.
Q. They all go out?
A. Yes, so would you.
Q. What is your complaint about them going to the rest room?
A. They stayed too long.
Thereafter. Barton said that only Cornell stayed too long.
,The respondent produced no persuasive evidence that Cornell's
work was unsatisfactory. On the contrary, Beaver testified that the
only complaint he had as to her work was her "refusal" to speed up
production, referred to above; and Barton testified that the same
incident was the only "trouble" he had had with her during the 10
years she had been working for him. -Both Beaver and Barton were
Cornell's immediate supervisors, and had been for many years. - It is
reasonable to believe that if her work had been unsatisfactory it would
have come to their attention.
To establish that Cornell had been holding up production, the
respondent introduced records showing that, after her dismissal the
production of Mark- 4's showed a marked increase. While these
records show that the average individual daily production rose from
31.54 in July to 34.07 in August,,it appears that this increase in all
probability was due to the employment of additional personnel.
Shortly after Cornell's discharge, approximately 30 employees,were
added to_the general personnel of the Mark 4 division, and a third
girl was specifically assigned to assist both of the assembly lines in
the cementing of nosepieces, the type of work which Cornell had
performed. Since that time the 3 girls together have put out 60 trays
daily, or 30 trays for each assembly line. Cornell had put out 231/2
trays when working without assistance. In summary, while the
particular operations performed by Cornell and Zimmerman may
have retarded the progress of work along the assembly line, it is ap-
parent that Cornell was not responsible therefor. In the first place,
if -any of the girls along the assembly line had to wait for work, it
was Zimmerman's, if anyone's, fault, since Cornell could not, without
wasting effort and materials, increase her production unless Zimmer-
man also increased hers. Secondly, in order to obtain the increased
TIDE KILGORE MANUFACTURING COMPANY ' 1017
production which it sought, the respondent was forced to add a third
girl to assist the girl who, replaced Cornell."
We find, as did the Trial Examiner, that the respondent's conten-
tions as to its reasons for the discharge of Helen Cornell' are without
merit.
(b) Cornell's union activities; conclusions
Cornell joined the Union early in June. As found above, the
Union's, chief officers were discharged during that month. Cornell
however, apparently took no prominent part in the organization ac-
tivities which came to the management's attention until the Board
election of July 22. On that day, as union steward, she was called
to the office to check the list of eligible voters, in the presence of
Rickenbacher and the respondent's counsel, Smoyer. On the day
after the election, as Cornell approached her bench, according to her
testimony, she overheard Barton say to employee Hollis that she
(Cornell) "wouldn't be smiling" the next time she came back from
the office. Although Barton testified that he did not recall the in-
cident, we accept Cornell's testimony as true. Shortly thereafter, as
found above, her brother asked her for increased production, and
twice during the following week Rickenbacher and Barton stood be-
hind her, watching her at work.
It is thus plain that, immediately after Cornell, as union steward,
had checked the eligibility list for the Board election, Beaver, Barton,
and Rickenbacher placed her, an employee of many years' service,
under unusual surveillance. And on July'31 she was discharged on
a pretext which, as found above, was without foundation in fact.
We therefore conclude and find, as did the Trial Examiner, that Helen
Cornell was discriminatorily discharged on July 31 because of her
membership and activity in the Union.
5. The failure to reinstate Emma Jean Justus,
Justus was employed by the respondent in April 19,42. For a time
she was one of several girls working on an incendiary bomb assembly
11 In explanation 'of why Zimmerman was not discharged , the respondent asserts that it
was because Zimmerman did not refuse to increase her production and thereafter did
increase it substantially . However, if Zimmerman 's production increased , it was not
necessarily due to her own efforts . Zimmerman testified that since Cornell's discharge,
she and the girl who replaced Cornell change off in their respective jobs. In view of the
fact that the third girl who was added to assist both lines assists whoever is cementing
the nosepieces , it is clear that Zimmerman also receives assistance when performing that
'type of work. Although Zimmerman testified that she had signed an application for mem-
bership in the Union , she further testified that, unlike Cornell, she had never worn a
union button in the plant and was "not in favor of " the Union.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
line in Plant #2. Early in June, Arnold,Stauch, Justus' foreman,
transferred her to another job in Building #3 upon complaint by.
several girls that they objected to Justus' excessive use of profanity
and vulgarities. Stanch testified that he had first reported the
complaints to his superior, Winckelman, who told him that lie would
see what could be done about it. Stauch further testified :
I just left it go for a while and then by tuck I don't [know]
what you would call it we got slack over there,,I didn't'need-her,
and I transferred her over in another building in number three
building . . . after I got her over there, she asked me when I
was going to take her back in number two building and I told
her we didn't need her over there any more and we had cut
down on production over there, and . . . I told her the girls
didn't approve the way she was doing over in number two.
As previously found. herein, the fire of June 9 brought about a
general shut-down soon thereafter. Justus worked until June 11,
when Stanch informed the employees 'in Building #3 that they
would be able to work but 1 day a week until the press was repaired.
He told employees Justus, Hall, and West to come in for work the
following Wednesday, June 17. Before June 17, however, according
to Stauch, he found that this plan of dividing available work was in
conflict with "the State Unemployment ,something," and so he gave
work to "about three girls" and "kept them on their work." Hall
was recalled on June 16 and West on June 22.
Although Justus sought reinstatement two or three times a week
until sometime in October, she was told on each occasion, except the
last, either by Rickenbacher or by Mrs. Fickle (whom the superin-
tendent described as the "employment department") that there was
no work available for her at the time, but that they were doing their
best to get her placed. On the last occasion, she was told by Ricken-
bacher; that she would not be reemployed at the plant, because she
used "too much profane language." She has not been reemployed:
In its answer, the respondent alleges that, after Justus' lay-off on
June 11, it "decided not to reinstate her when work should become
available for her because her language and conduct in the plant was
such that it was her foreman's opinion that her presence in the plant
was obnoxious to the other female employees working_ with her."
Rickenbacher testified that Justus asked him on numerous occasions
when she was going•back to work and, with regard to his last conversa-
tion with her stated :
She was in the lobby one day and I was going out the front door.
She was in that little vestibule and she stopped me and wanted
to talk to me and she asked me when I was going to put her back
THE KILGORE VMANL- FACTt RING COMPANY 1019
to work and I told her : ""Well, Emiiia Jean, I understand Fred
don't want' you back to work over there," and she 'asked me:
"Why?" ' I said : "Well, I will tell you, Emma Jean, I am going
to give you a little advice." I said: "If you ever get a job some-
place else be a lady; don't use the language you used in our
factory. I am just giving you that advice." I think 'Emma,
Jean will bear me out on that.
Justus admitted swearing and telling "dirty" stories, and a considera-'
tion of all the evidence makes it apparent that she was prone to use
an unusu^il amount of profanity and vulgar language. Della Hall,
who worked with Justus after her transfer and who had been manager
of the shop restaurant near the plant where Justus worked as a
waitress prior to her employment by.the respondent, testified with
respect to Justus' cursing that "she was a person who would do it,
but she always kind of looked up to me a little bit and she was more
careful around me because I criticized her for it. ... I wanted her
to hold her job."
Justus joined the Union early in June. She was not active in
"'its affairs, and there is no evidence that the respondent was aware
of her union affiliation until June 24, when informed that she was
a complainant in charges filed with the Board by the Union. Thus,
no inference can be drawn that wshen Hall and West were recalled
on June 16- and June 22, respectively, the respondent's failure to
recall Justus in place of either of these employees was discrimina-
torily motivated. No new female, employees were employed by the
respondent until August 10, 1942. It is true, as the trial Examiner
indicated, that the failure of the respondent to inform Justus of her
deficiency when she first sought reinstatement, and its= repeated advice
that no work was available, casts doubt upon the genuineness of its
alleged reason for her non-reinstatement. On the other hand, how-
ever, a consideration of all the evidence does not convince us that the
real reason was Justus' membership or activity in the Union. Under
these circumstances, we find, contrary `to the Trial Examiner, that
the respondent has not discriminated in regard to the hire and tenure'
of her employment.
N
6. The discharges of William E. Brown, Barnie Noel and Theodore
Budd on August 14; and of Fred Beaver, Kenneth Cornell and
Lynn Benton on August 17, 1942
(a) Events surrounding the discharges of Brown, Noel, and Budd
Operating as a crew, Brown, Noel; and Budd worked, in a small
building of Plant #1, , separated from each other by partitions:
Until their simultaneous discharges on August 14, they had been em=
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployed for several weeks in mixing ingredients which were then
compressed into pellets by the crew-consisting of Beaver, Cornell,
and Benton, in another building. In producing these pellets, which
were used in the making of Navy 'flares, the two crews constituted
a single unit working on the same shift, alternating weekly from
day to night. The first-named crew mixed and supplied the mate-
rial, the other formed it by use of a hydraulic press. All six em-
ployees were members of the Union. That their membership was
known by the respondent is established by the testimony of both Shaw
and Blamer, their foremen. Shaw testified that he knew they were
union members, and Blamer, although denying actual knowledge of
their membership, admitted having seen them wear union buttons,
and having 'heard them talk about that organization. Since the
respondent alleges that the two crews were discharged for different
reasons, we will consider sepai•ately.the events surrounding the dis-
charges of the three members of each crew.
Until August 14 Brown had been almost continuously employed by
the respondent since 1934; Budd intermittently since 1937; arid Noel
continuously since 1937. Brown's duties' were to weigh certain in-
gredients for Budd and Noel, each of whom operated hand-rollers
on a bench or table. When the latter two employees had finished
rolling the mixture, Brown took the,"batches" to another building
and placed them, together with other ingredients, into a tumbling
barrel, which he then set in motion. When the tumbling operation
was completed, Brown carried the material to the building occupied
by Beaver, Cornell, and Benton.
Until July 27, the night shift operated without a foreman. On that
date, Foreman Hazel.Blamer was transferred from Plant #2, where
he had been in charge of another operation, to supervision of the night
shift at Plant #112 The six men here involved were on the night
shift during the week beginning July 27 and again during the week
'beginning August 10.
At about 10: 30 o'clock the.night of August 13, a press operated by
another crew caught fire. Such fires were frequent occurrences and,
in,accordance with standing orders, Brown, Budd, and Noel went to
the other building to assist in extinguishing the fire. After the fire
was under control Blamer came into, the building, determined that
it would be impossible to run the press any more that night, and
said that some Of the men would have to clean up their working
rooms and go home. Thereafter, at 11:01 o'clock, the three 'em-
ployees whose machine had been damaged, and whose jobs corre-
a Prior to Blamer's transfer , there had been no foreman on the night shift. It appears
that the respondent was promoted to assign a foreman to this shift because of reports
that some of the men were leaving , the plant during working hours, taking too much time
for lunch , and in other ways taking advantage of the lack of immediate supervision.
THE . KILGiORE MANUFACTURdN11G COMPANY 1021
sponded to those of Beaver, Cornell,-and Benton, punched their time
cards. Jesse Justus, the only roller preparing material for the
burned press that night, punched out about 11:30. Brown, Noel, and
Budd, however, did not leave until midnight, at the end of the shift.
Blamer reported their apparent disobedience to Grosh, who-in turn
reported it to Rickenbacher. When the three men reported for work
the next day they were discharged by Richenbacher who charged them
with having disobeyed Blamer by not going home as instructed.
The testimony is conflicting as to whether or not Blamer issued
specific instructions to Brown, Noel, and Budd. Both Brown and
Noel 13 denied that Blamer specified which of the employees gath-
ered at the fire should go home, and stated that the foreman said only
that there were too many and that some must go. Blamer, however,
testified as follows :
I gave the instructions to the men who were there on this press
[the damaged machine] and to the roller and the weigher to clean
up, to go home . . . I gave those instructions to Kletrovetz and
Neil Robinson and Laurel Jones 14 and Barnie Noel and Brownie
'[Brown] . I tried to tell them so that they would well under-
stand me and Budd, Noel, and Brownie were facing me and all
three of the men argued with. me about it and then they said
they wouldn't do it; they wouldn't go home, and it made Noel
so mad that he cussed me ; he talked dirty to me and swore two
or three times at me, and I, said to them : Boys, now I have
told you good and plain as I know how and used just as nice as
I could and I said : Now, if you don't go home it is all out of
my hands. I have given the orders and if you don't do it, it is up
to you and the company . . . I didn't mention any names be-
cause they were standing right in front of me and I said : "The
rollers-" I made it plain for them all to go home, and the rest of
them understood it.
Justus, a witness for the respondent and the roller for the burned
press, likewise testified that Blamer told Brown, Noel, and Budd to go
home, and that while Blamer did not mention any names, he "just
told us all to go home." Justus also corroborated Blamer's testi-
mony that Noel swore and said they were not going home. He fur-
ther testified that he later asked the three men if they were going
home and that when they told him they were not, he warned them that
"they would get canned."
13 Budd did not testify. That he was present at the fire. however, was established by
several witnesses, including Blamer.
14 Kletrovetz, Robinson, and Jones were in the crew assigned to the press which had
burned.
DECISIONS OF NATIONAL LABOR RELA1IOTNS BOARD1022
Blamer testified that Budd and Noel each had their own room to
clean, that-Brown had the tumbling room to clean, and that the clean-
ing job was one to which lie customarily allotted one-half hour. He
further testified that after cleaning their rooms, all three men "didn't
do one lick of work," and that they went to the press room where _
Beaver, Benton; and Cornell were working and stayed there "most of
the time afterwards." Brown and Noel testified that they were busy
until quitting time, Noel asserting that lie and Budd, .in addition to
cleaning their rooms, had to finish rolling a batch of powder they had
left on the table at the time of the fire. Noel's testimony, however, was
inconsistent with that of Brown, who testified that they rolled no more
powder that night and that although he had poured out some phos-
phorus on the table before the fire he afterwards put it back in the
drum. Although Brown, in addition to cleaning the tumbling room,
had carried the rolled powder left from the burned press over to the
press that was still being operated by Beaver, Benton, and Cornell, it
appears from Blamer's uncontradicted testimony that this task should
-.not have taken more than 2 or 3.minutes;to perform. Justus, the roller,
on the burned press who, because he had two. rooms-to` clean by himself,
stayed longer than usual that night, nevertheless punched out at 11: 30.
In view of the foregoing, there appears to have been no reason for
the three men to have taken more than the customary half hour to
complete their cleaning and leave the plant, and we"so find.
We are convinced, after a consideration of all the evidence, that
Blamer issued instructions to Brown, Noel, and Budd, containing the
clear import that they were to go home before the end of their shift,
and that Blamer, in reporting them to his superiors, was motivated
by their apparent disobedience of his orders 15 Whether or not the
disregard of Blamer's orders by*Brown, Noel, and Budd was, in fact,
deliberate is not of controlling significance, since it appears'tllat, in
any event, Blamer reasonably entertained such a belief. That Ricken-
bacher relied solely upon the assertions of Blamer and, in this instance,
had no discriminatory intent, receives corroboration from the testi-
mony of Brown and Noel regarding their conversation with Ricken-
bacher at the time of their-discharge. According to these employees,
when Rickenbacher discharged them for disobeying Blamer and took
their badges, they explained that they had been kept busy until quitting
time. Brown testified that Rickenbacher •thereupon stated, "Maybe
I'm wrong, Maybe,I don't know what it's all about," gave them back
15 Blamer , according to his testimony, had been more or less subject to the resentment
of members of the night crew when he was made foreman, due to his being charged with
correcting the laxity in supervisiorr ' that^had •existed prior to^that time .": He; also , incurred
the particular resentment of Noel, Brown, and Budd, so he testified, when he reprimanded
them for carelessly , burning some powder in the plant, apparently for their own amuse-
ment. it appears that Blamer had previously signed a union application card and, so far
as the record shows, had exhibited no hostility towards the Union.
THE KILGIORE MANUFACTURING COMPANY - 1023
their badges, and suggested that they wait until Blamer arrived to
find out what he had to say. When Blamer came in and confirmed
his prior report to C cosh, Rickenbacher accepted his statement- and
discharged the three men. If Rickenbacher had been motivated by
the union membership of Brown, Noel, and Budd, it is reasonable to
assume that when lie handed them their checks the first time, he would
not have accepted their explanation, returned the badges, and admitted
that he might be wrong.
We find, contrary to the Trial Examiner, that Brown, Noel, and
Budd were dismissed because they disobeyed the instructions of their
foreman, and, that the respondent has not discriminated in regard to
the hire-and tenure of their employment.
(b) Events surrounding the discharges of' Beaver, Benton, and
Cornell
Until their discharges on August 17, 1942, Benton had been inter-
mittently employed by the respondent since 1930; Beaver continuously,
since 1925; -and- Cornell continuously since August 1940. , As stated
above, Benton and Cornell 613e, ated' a hydraulic press which formed
into pellets the mixture prepared by Brown, Budd, and Noel. Al-
though Cornell usually served as helper on the press, he frequently
alternated with Benton as its operator. Beaver's duties were to
weigh the inixtum e conveyed to the press building by Brown, and to
place portions of it into "cups." All three worked in the same room
in a separate building. Also we found above, they were under the
supervision of Foreman Blamer during the weeks beginning July 27
and August 10.
At about 11 o'clock on Saturday. August 15, an hour before the end
of the last shift for the week, Blamer came into the pressroom and
asked Benton; who was their operating, for a little more production.
Thereupon, Benton, Cornell, and Beaver, entered into a heated discus-
sion with Blamer. Regarding the incident, Blamer testified as follows :
I made the rounds several times and studied how to get more pro-
duction and I went inside of this press room and-looked up this
Mr. Benton; he was the man who was operating this press and I
said'to him, they acted mad, and I said to Mr. Benton: How about,
a little more production on this press? And he said : Not another
God dani pill will we make unless we get more money, By God, and',
that started them all talking, they all talked to me then and they-
all=began to-I said: They are on to me` for more production,. the'
girls are gaining every day on us . . . I, said: We need more pro--
duction and need it bad, and 1 said: Bob [Rickenbacher] is. ask-
ing us for it, and I said: I have got to ask you fellows, and I said::
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bob says to us : Why not get the war over , get more production,
get the war over, and this Mr. Cornell said . . . That God darn
pro-German s- o- b don't want the war over ... They all
said,-they give the company thunder ... They cussed the com-
pany and cussed everybody around us. There was pretty much
of an uproar around that time.
Neither Cornell nor Beaver 16 offered any substantial ' contradiction
to Blamer's testimony. Cornell , moreover, admitted that he "made
a few remarks that wouldn't sound very good to be repeated here."
Beaver testified that . Benton . "said something about a little more
money , or something like that; I couldn't ' just exactly say for sure."'
In discrediting Blamer's testimony , the Trial Examiner relied upon
the failure of Blamer to report the incident to his supervisor. As
discussed below, however , Blamer was approached by Rickenbacher
before he had an opportunity to make a report , and consequently
it cannot be said that he did not intend to do so. We find no con-
vincing reason to discredit Blamer's testimony . Accordingly, we
fiiicl - that Benton told Blamer in no uncertain terms that they -would
not increase production until they received higher wages , and that
Cornell and Beaver joined in this sentiment , Cornell doing so with
the derogatory remark concerning Rickenbacher attributed to him
by Blamer.
Later that night Blamer, according to his testimony , discussed
the incident with the janitor, whose daughter worked for James,
the respondent 's bookkeeper . Rickenbacher thus indirectly learned
of the difficulty experienced by Blamer, and the following morning,
Sunday, went to Blamer's home and asked him if he had been having
"trouble." Blamer, according to his testimony , replied, "Yes, I
might as well tell you about it," and advised Rickenbacher that he
would get more production if the three men were discharged. The
next day, near the close of the day shift on which they were then
working, Rickenbacher came to the three men and handed them their
discharge notice, which stated that they had not "cooperated with
-their foreman."
As found above , Benton, Beaver, and Cornell had revealed an
attitude bordering on insubordination when requested by Blamer to
increase their production. While there was no outright disobedi-
ence involved , in the incident ; as' was true with respect 'to the dis-
charge of Brown, Noel, and Budd, it is apparent that their conduct
was such as could reasonably ' warrant discharge by their - employer.
There is nothing to impugn the motives of Blamer in advising Rick-
enbacher that they should - be discharged , since whatever hostility
may have existed between Blamer and the three men, it apparently
1e Benton did not testify.
THE KILGORE MANUFACTURING CONII'ANYc 1025
was not attributable to their membership in the Union.'' While
Rickenbacher's, hasty investigation of the incident before -Blamer
had time to report' it, when viewed against the background of hos-
tility evinced by him towards the -Uilion, raises suspicion as to his
motives, we find it insufficient to warrant the conclusion that the
discharges were discriminatory. Accordingly, -we find that the re-
spondent has not discriminated in regard to the hire and tenure of
7. The discharge of Clen Klinger on June 18
(a) Events bearing upon his discharge
Klinger was employed on June 18; 1941, and was discharged on
June 18, 1942. During the last 6 months of his service he worked
as helper on a hydraulic press which made powder pellets. Until
March 1942, Wendell Shaw was operator of the press. - During
March, Shaw was promoted, becoming as assistant to Grosh, and
Alvin Lower was assigned as operator of the press. Klinger re-
mained as helper.
On June 18 Lower had occasion to leave the pressroom for a few
minutes. As he went out, he told Klinger to "leave things just as'
they are." Klinger, however, operated the press during Lower's
absence. According to his testimony, he ran "one shot" of pellets.
On his second attempt, he inserted the steel core plate, to which 16
steel upright pins were attached, into the diaphragm backwards.
As a consequence, when he threw the lever, releasing about 80 tons
of pressure, the pins failed to enter the small holes in the "plungers."
Application of this pressure caused all of the pins to buckle; it also
broke and bent various parts of the plate. At about the same mo-
ment Lower 'returned, followed soon afterward by Assistant Super-
intendent Grosh. Grosh asked what had happened. Lower ex-
plained that although he had told Klinger to leave the press alonei
Klinger had disobeyed and had caused the damage. The accident
was reported to Rickenbacher, who immediately sent for Klinger
and discharged him. The damage to the press caused about 1/z
x' Blamer asserted that after Brown, Noel, and Budd were discharged, Beaver reproached
him for having the three men dismissed. He testified without contradiction :
Well, there was one time after that that Beaver said to me : You didn't have to tell
Bob (Rickenbacher) about that, about the boys down over there to get them canned,
and he said • You could have lied, or brought it out in that kind of a shape to me, to
Bob and I said : Well, we have time cards here that tell stories and I said : Listen,
Beaver, I have never knowed you for long but I want to tell you something, if I have
to lie for you or for the company around here, I will quit, I will get out, if I can't
shoot straight I won't shoot at all. After that Beaver, Benton, and Cornell held a
cold shoulder to me very much, after that.
As previously stated, Blamer had signed a union application card, and , so far as appears,
had displayed no hostility towards the Union.
1026 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
days' interruption of its operation. Neither before nor since June
18 has the press been similarly damaged.
In support of, the respondent's contention that Klinger was dis-
charged because he disobeyed the instructions of his foreman and
the operator in charge of the press, and had damaged equipment
used in war production, Shaw, Lower, and Grosh testified that
Klinger had been instructed not to operate the press. Although
Klinger denied having been given such instructions, we do not accept
his denial as true. At the time of the hearing Klinger was but 19
years old. -'Since birth he has suffered the lack of sight in one eye.
Both Grosh and Lower testified that Klinger commonly engaged in
"horseplay" during working hours. Furthermore, in determining
the issue, we have considered as significant, the fact that, although
Klinger had been a helper for 6 months when Shaw was promoted,
he was not, given the position of operator ; the vacancy was filled
by Lower, an older man but inexperienced on this job.
Although Klinger's testimony is uncontradicted that he joined the
Union early in June, and that he talked about the organization with
Shaw, we are persuaded,by all of the evidence, as was the Trial
Examiner, that Klinger was not discharged because of his union
membership, but because he disobeyed orders and caused damage to
the, press. We find that the respondent has not discriminated in
regard to Klinger's hire and tenure of employment.
D. Conclusions in summary
It has been found that since the first of June 1942, Rickenbacher
has engaged in a clearly defined campaign to defeat union organi-
zation among the employees under his charge, in a plant devoted
entirely to the production of materials of war. Rickenbacher drew
up, had printed and published, posted and distributed to all em-
ployees textual matter attacking District 50 and the head of the
United Mine Workers. Rickenbacher himself discharged or ordered
the discharge of the Union's president, vice president, financial sec-
retary, steward, and committee members, as' well as other employees
whom he knew to be members of the organization.. He has refused
to reinstate them. As a pretext for these acts of discrimination he
claimed that most of these employees were impeding or retarding pro-
duction. In each instance his claim has been refuted by his own
production records, by the credible testimony of his subordinates
who were in immediate charge of the employees involved, and by the
testimony of Hatch, the resident Government inspector. Thus the
record, in its entirety, reveals Rickenbacher's contentions to be with-
out factual foundation.
THE KILGORE MANUFACTURING COMPANY 1027
By these acts of R_ickenbacher and his subordinates, described above,
the respondent has discouraged membership in a labor organization
and has interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act.
Iv. THE REMEDY
Haying found that the respgndgnt has, engaged in certain unfair
labor practices, we will, therefore, order it to cease and desist there-
from and to take certain affirmative action designed to effectuate the
policies of the Act.
- We have also found that the respondent has discriminated in re-
gard to the hire and tenure of employment of E. R. Sites, Helen Par-
sons, Helen Whitney, Emma Parks, Edna Nicodemus, J. D. Flexser,
and Helen Cornell. In order to effectuate the purposes and policies of
the Act, we shall order that the respondent' offer the afore-mentioned
employees immediate reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other
riglits^anilphrivi,leges.,, We-shall; also. order that , the,respondent snake
these employees whole for any loss of pay they have suffered by reason
of the respondent's discrimination, by payment to each of them of a
sum of money equal to the amount he normally would have earned as
wages from the date of the discrimination to the date of the offer or re-
instatement, less his net earnings,"' during said period.
Upon the basis of the foregoing findings of fact and upon the entire
i ecord in the case, the Board makes the following :
CoNCLUS1oNS of LAW
1. United Aline Workers of America, District 50, Local 12461, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of E. R. Sites, Helen Parsons, Helen Whitney, Emma Parks,
Edna Nicodemus, J. D. Flexser, and Helen Cornell, thereby discourag-
ing membership in United Mine Workers of America, District 50,
Local 12461, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
"By "net earnings" is meant earnings less expenses such as for transportation, room.
and board , incurred by an employee In connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawtul
discharge or refusal of reinstatement , and the consequent necessity of his seeking employ-
ment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of
Carpenters and Joiners of America , Lumber and Sawmill Workers Union , Local 2590,
8 N. L. R . B. 440. Monies received for work performed upon Federal , State, county,
municipal , or other work-relief projects , shall be considered as earnings . See Republic
Steel Corporation v. N. L. R. B ., 311 U. S. 7.
531647-43-vol. 49-66
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor 'practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not discriminated in regard to the hire and
tenure of employment of Emma J. Justus, William E. Brown, Barnie
'Noel, Theodore Budd, Fred Beaver, Lynn Benton, Kenneth Cornell,
and Clen Klinger, within the meaning of Section 8 (3), of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, The Kilgore Manufacturing Company, Westerville, Ohio,
and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Mine Workers of Amer-:
ica, District 50, Local 12461, or any other labor organization of its
employees, by discharging or refusing to reinstate any of its employees
or in any other manner discriminating in regard to their hire or
tenure of employment or any term or condition of their employment;
(b) In any other manner interfering with, restraining or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, or to engage in concerted activities
for the purposes of collective bargaining and other mutual aid or pro-
tection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act : I I
(a) Offer to E. R. Sites, Helen Parsons, Helen Whitney, Emma
Parks, Edna Nicodemus, J. D. Flexser, and Helen Cornell, immediate
and full reinstatement to their former or substantially equivalent posi-
tions; without prejudice to their seniority and other rights and
privileges;
(b) Make whole E. R. Sites, Helen Parsons, Helen Whitney, Emma
Parks, Edna Nicodemus, J. D. Flexser, and Helen Cornell, for any
loss of earnings they may have suffered by reason of the respondent's
discrimination against them by payment to each of them of a sum
of money equal to that which he would normally have earned as
wages from the date of the respondent's discrimination against him to
the date of such offer of reinstatement, less his net earnings during
said period;
THE KILGORE MANUFACTURING COMPANY 1029
(c) Immediately post in conspicuous places in each of its plants,
Plant No. 1 and Plant No. 2, at Westerville, Ohio, and maintain for a
period of at least sixty (60) consecutive days from the date of post-
ing, notices to its employees stating (1) that the respondent will not
engage in the conduct from which it is recommended that it cease and
desist, in paragraphs I, (a) and (b) of this Order; (2) that the re-
spondent will take'the affirmative action set forth in paragraphs 2 (a)
and (b) of this Order; and (3) that the respondent's employees are
free to become or remain members of United Mine Workers of Amer-
ica, District 50, Local 12461; and that the respondent will not dis-
criminate against any employee because of his membership or activity
in that organization-
(d) Notify the Regional Director for the Ninth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT Is FURTHER ORDERED .that the complaint, insofar as it alleges
that the respondent, by discriminating in regard to the hire and tenure
of employment of Emma J. Justus; William E. Brown, Barnie Noel,
Theodore Budd; Fred Beaver,` Lynn_ Benton, Kenneth Cornell, and
Clen Klinger, has engaged in unfair labor practices within the mean-
ing of Section 8 (3) of the Act, be, and it hereby is dismissed.