Unites States Cartridge Co.

National Labor Relations Board - Board Decisions

Feb 23, 1943

47 N.L.R.B. 896 (N.L.R.B. 1943)

In the Matter of UNITED STATES CARTRIDGE COMPANY. and INTERNA-
TIONAL BROTHERHOOD OF. FIREMEN & OILERS, LOCAL No. 6, AFFILIATED
WITH THE AMERICAN FEDERATION OF LABOR
In the Matter Of UNITED STATES CARTRIDGE COMPANY and LOCAL No. 825,
UNITED ELECTRICAL, RADIO & MACHINE WORKERS , OF AMERICA,
AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS
In the Matter Of UNITED STATES CARTRIDGE COMPANY and PLANT PRO-
TECTION LOCAL; UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF
AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANI-
ZATIONS
Cases Nos. C-2400 through C-403, respectively.-Decided February
23,1943
Jurisdiction : ammunition rnanufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: rule prohibiting union activity on com-
pany premises, applicable to leisure time periods during working hours and to
employees' own time ; held violative of the Act ; anti-union statements 'and
discriminatory transfers designed to discourage collective activity by the guard
force.
Discrimination: discharge of two employees for engaging in union activity during
leisure time period, contrary to an illegal no solicitation rule; discharge of one
employee and refusal to reinstate another because of their union membership.
Remedial Order : employer ordered to-cease and desist from unfair labor prac-
tices and to reinstate with back pay the four employees discriminated against ;
no affirmative action ordered with respect to rule prohibiting union activity
on company property, when the record showed that the rule had been rescinded.
DECISION
AND
ORDER
On November 3, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceedings, finding that the respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and that it take certain
affirmative action, as set forth in the copy of the Intermediate Report
annexed hereto. Thereafter the respondent filed exceptions to the
Intermediate Report and a brief in support of the exceptions. The
Board has considered the rulings made by the Trial Examiner at the
47 N. L. R. B., No 115.
896,
UNITED STATE'S CARTRIDGE COMPANY 897
hearing and finds that no prejudicial error was committed. The rulings
are hereby affirmed.
Pursuant to notice, a hearing was held before the Board at Wash-
ington, D. C., on February 2, 1943, for the purpose of oral argument.
The respondent was represented by counsel and participated in the
hearing; none of the labor organizations appeared.
On • February 2, 1943, following oral argument • before the Board,
the respondent filed a motion to reopen the record herein and to receive
in evidence "a copy of Ordnance Fiscal Circular No. 172, dated October
3151942, and Change No. 1 thereto, dated November 5,1942," and a copy
of a notice posted by the respondent in its plant on November 18, 1942,
in lieu of the notice of May 9, 1942. We deem it unnecessary to reopen
the record, and the motion to reopen is hereby denied. However, the
proffered evidence is accepted and is hereby ordered made a part of the
record herein.
The Board has considered the Intermediate Report, the respondent's
exceptions and brief, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner,
except as noted below :
1. The Trial Examiner has found that the notice posted by the
respondent on May 9, 1942, prohibiting all union activity on plant
property, "whether within or outside of working hours," was violative
of the Act. The record shows that the respondent's employees during
Working hours have certain leisure time periods which they usually
spend in the cafeterias or locker rooms or elsewhere in the,plant, and
also that employees spend at least some time every day outside working
hours on parking lots and other parts of the plant property. During
these leisure periods and also while-they are within the plant grounds
,on their own time,,employees admittedly and naturally talk-to each
other about many,and varied subjects of mutual interest, and the record
reveals no cogent reason for the respondent's attempt to exclude union
matters from these discussions among the employees. Indeed, the
propriety of union activity by employees on plant property during
leisure periods or, a fortiori, outside of working hours has, since the
'hearing herein, been recognized in the notice posted by the respondent
on November 18, 1942, and iii Ordnance Fiscal Circular No. 172 and
Change No. I thereto? While an employer may promulgate and en-
force non-discriminatory reasonable rules with respect to the conduct
of his employees on working time and plant property, we are convinced
and we find that, under the circumstances here presented, the extension
of the prohibition contained in the respondent's May 9 rule to times
and places at which safety or production could not normally be affected
1 See, also, the recent opinion of the National War Labor Board in the case of General
Chemical Company, 11 L. It . It. ')5, at p. 97.
513024-43-vol. 47-57
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constituted an unreasonable impediment to union organization which
interfered with, restrained, and coerced the respondent's employees in
the exercise of the rights guaranteed in Section 7 of the Act. However,
,since, the record shows that the May 9 notice has'been rescinded and
'replaced by the November 18 notice, we, shall not direct the respondent
to take any affirmative action with respect to the May 9 notice.
2. The Trial Examiner has found that Elmer P. Nash was discharged
on June 28, 1942, and was'thereafter refused reinstatement because of
his union activity. The record shows that Nash, because of an injury
sustained in repairing his automobile, was unable to work on June 27
atind' 28, 1942, but that, in accordance with the general practice at the
plant, he gave the respondent's office advance notice that he would not
report for work on June 27. For some reason, Nash's message was not
transmitted to Foreman May, who thereupon issued a discharge' slip
for Nash on June 28. Thus, it appears that Nash's discharge was
predicated on May's erroneous assumption that Nash had failed to give
the respondent the customary advance notice of his intended absence
on the day in question. ' May's quick decision to discharge Nash, with-
out first giving him an opportunity to explain the reason for his absence
and without warning him, in accordance with the practice followed at
least in May's department, that his continued absence would result in
discharge, creates some suspicion that May was motivated by some
reason other than Nash's absence from work. However, we are not
fully satisfied that the record supports a finding that Nash was dis-
criminatorily discharged, and to this extent we reverse the Trial Ex-
aminer's findings. But we agree with the Trial Examiner's finding
that Nash was discriminated against when he unsuccessfully sought
reinstatement. The record shows that Nash, immediately upon learn-
ing of his discharge and in the absence of Foreman May, spoke to
General Foreman Pfeiffer about his discharge. Nash told Pfeiffer
that he had given the required advance notice of his absence, a fact
which was promptly verified by Pfeiffer. The next day, June 30, May
was informed that Nash had in fact given advance notice of his absence,
but he nevertheless denied Nash's request for reinstatement. Neither
at that time nor at the hearing did the respondent give any convincing
explanation for its refusal-to reinstate Nash. Under all the circum-
stances, including Nash's active participation 'in union affairs, his
prominence as a shop steward, and May's dislike of union organization,
we are convinced and we find that the respondent's arbitrary refusal
to reinstate Nash on June 30, 1942, was due to his membership in and
activity on-behalf of Local 825. By thus refusing to reinstate Nash,
the respondent discriminated with regard to his hire and, tenure of
employment and discouraged Membership in Local 825, and thereby
interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act. We shall, therefore
UNITED STATES CARTRIDGE COMPANY 899
direct the responcleait to offer Nash immediate and full reinstatement
with back pay, as recommended by the Trial Examiner , but our Order
will provide that the period for computing back pay shall begin with
the date of the respondent 's refusal to reinstate Nash and not with the
date of his discharge. ' .
3. The Trial Examiner has found that Harry H. Smith ' was dis-
criminatorily discharged. The events leading up to Smith's dis-
charge may be briefly summarized as follows : On. July 9, 1942,
an employee committee , for which Smith acted as spokesman and
which represented a substantial number of the respondent's guards,
requested Chief Luke to restore certain canteen privileges which
the guards had theretofore enjoyed. Luke denied this request, and
the committee immediately sent a telegram to the Secretary of War
claiming that the guards had been discriminated against by the
withdrawal of these privileges . At about the same time another
group of guards, as a result of the efforts of Guard LaDassor, held
several union organizing meetings and took steps to form the Guard
Local, all of which became known to Chief Luke and the supervisory
employees immediately subordinate to him. Smith also gave his
support to this movement and urged the guards to support the union
organization. On July 12, 1942, Chief Luke addressed all the guards
at the several roll call assemblies , and identified Smith and La-
Dassor, at the assemblies of their respective shifts , as being among
the "agitators ," "trouble makers ," and "disloyal citizens" in the
guard force whom Luke charged with causing dissension in the
ranks and with-jeopardizing the jobs of all the guards. Smith, La-
Dassor, and several other members of the committee of guards were
transferred by the respondent to less desirable guard assignments.
Smith was removed from an inside post to an outside patrol post along
the east fence of an isolated area known as the "Mosquito Fleet,"
where he worked on the night of -July 12 and also on the following
night until he was suspended by Lieutenant Bushbaum. The next
day, July 14, Smith was discharged by Chief Luke. The principal
reason given by the respondent for Smith's discharge is his alleged
neglect of duty on the night of July 13.2 The Intermediate Report
states in some detail the conflicting testimony with respect to Smith's
alleged neglect of duty. Briefly, Lieutenant Bushbaum testified
that for approximately 28 minutesSmith was off his post and failed
to patrol the fence. Smith denied this testimony and stated that,
during the time in question, he was on his post and was performing
his duties in accordance with the instructions given him., The
2 Luke testified that , in arriving at the decision to discharge Smith , he also considered
reports that on four prior occasions Smith had been reprimanded for engaging in unneces
sary conversations with pioduction employees We do not believe that these incidents
contiibuted in any substantial degree to Smith's discharge.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner has found, and we agree, that the record as a whole
establishes that "on the occasion in question Smith was not in fact
off his post." In any event, we are convinced that the charge of
neglect of duty preferred against Smith was merely a pretext. for
his discharge. We find, as did - the Trial Examiner, that Smith
was discharged because of his union activity-and because he engaged
in concerted activities with his fellow employees.
ORDER ,
'Upon the entire record in the case and pursuant to Section 16
(c) of the National Labor Relations Act, the National Labor Re-
lations Board hereby orders that' the respondent, United States
Cartrjdge Company, St. Louis, Missouri, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Local No. 825, United Electrical,
Radio & Machine Workers of America, C. I. 0., or in Plant Protection
Local, United Electrical, Radio & Machine Workers of America,
C. I. 0., or in any other labor organization of its employees, by dis-
charging or refusing to reinstate any of its employees or in any other
manner discriminating in regard to their hire and tenure of employ-
ment 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, and to engage in concerted activi-
ties, for the purpose of collective bargaining or other mutual aid or
protection,'as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to Elmer P: Nash and Harry H. Smith immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges;
(b) Make whole Elmer P. Nash and Harry H. Smith for any loss
of pay they may have suffered by reason of the respondent's discrimi-
nation against them, by payment to-Nash of a sum of money equal to
the amount which he would normally have earned as wages from June
30, 1942, the date on which he was denied reinstatement, to the date of
the respondent's offer of reinstatement, less his net-earnings during
such period, and by payment to Smith of a sum of money equal to the
amount which he would normally have earned as wages from July 14,
1942, the date of his discharge, to the date of the respondent's offer of
reinstatement, less his net earnings during such period;
UNITED STATES CARTRIDGE COMPANY 90,1
(c) Upon application by Edwin A. James and Frederick T. Peetz
within forty (40) days after their respective discharges from the armed
forces of the United States, offer each of them immediate and full
reinstatement to-his former or a substantially equivalent-position, with-
out prejudice to his seniority and other rights and privileges;
(d) Make Whole Edwin A. James and Frederick T. Peetz for any
loss,of pay they may have'suffered or may suffer by reason of the
respondent's discrimination against them, by payment to each of them
of a sum of money equal to the amount which he would have normally
earned as wages during the period from the date of his discharge by
the respondent to the date of his enlistment in the armed forces of the
United States, and during the period from a date five (5) days after
his timely application for reinstatement, as provided above, to the
date of the respondent's offer of reinstatement, less his net earnings
during those periods;
(e) Post immediately in conspicuous places throughout the plants
operated by it at St. Louis, Missouri, and maintain for a period of
at least sixty (60) consecutive days from the date of posting, notices
to its employees stating : (1) that the respondent will not engage in
the conduct from which it is ordered to cease and desist in para-
graphs 1 (a) and (b) of,this Order; (2) that the respondent will take
the affirmative action set forth in paragraphs 2 (a), (b), (c), and
(d) of this Order; and (3) that the respondent's employees are free
to become and remain members of Local No. 825, United Electrical,
Radio & Machine Workers of America, C. I. 0., and of Plant Pro-
tection Local, United Electrical, Radio & Machine Workers of Amer-
ica, G. I. 0., and that the 'respondent will not discriminate against any
employee because of membership in, or activity on behalf' of; said
organizations ;
(f) Notify the Regional Director for the Fourteenth Region in'
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
MR. GERARD D. REILLY, dissenting in part :
I dissent from the holding of the majority that Edwin A.'James
and Frederick T. Peetz were discriminatorily discharged. These em-
ployees were discharged because, contrary to the respondent's rule of
May 9, 1942, they held union conversations with four other employees
in the respondent's locker room during the 5-minute period given em-
ployees in which to change clothes between shifts. The majority's
holding rests largely on the erroneous assumption of the Trial Exam-
iner that this 5-minute period, like the employees' lunch period, is the
employees' "own time." 3 It seems clear that this 5-minute period of
8In Matter of The Denver Tent and Awning Company and Warehouse and Distribution
Workers Union, No. 217 , 1. L. W. U., 47 N. L R B. 586 , the rule was extended to
activity occurring at lunch time when the employees were not 'on duty.
902 . DECISTONS OF NATIONAL LABOR. RELATIONS BOARD
grace, for which the employees are paid, is granted to facilitate the
change of shifts and constitutes company time, which the respondent
should be permitted to control. Since it has been settled by prior
decisions 4 that a rule forbidding solicitation (including union prose-
lytizing) is not a violation of the Act where its purpose is to insure
continuous production by preserving plant discipline in working
hours, I do not believe that the May, 9 rule was unreasonably applied
to James and Peetz because of their activities during the 5-minute
period between shifts, and I would therefore dismiss the complaint
as to them.
In all other respects I agree with the decision of the majority.
INTERMEDIATE REPORT
Mr. Alba D. Martin, for the Board.
Mr. R H. McRoberts, of St. Louis , Mo, for the respondent.
Mr. William Sentner , of St. Louis , Mo., for the Guard Local and Local 825.
Dar Robert Lodgsdon ,, of St. Louis , Mo., for the Guard Local.
Mr. John R Bai r, of St Louis , Mo, for the Brotherhood.
STATEMENT OF THE CASE
Upon charges duly filed by United Electrical,'Radio'& Machine Workers of
America, Local No. 825, afhliated with the Congress of Industrial Organizations,
herein called Local 825, Plant Protection Local, United Electrical, Radio &
Machine Workers of America, affiliated with the Congress of Industrial Organiza-
tions, herein called the Guard Local, and International Brotherhood of Firemen
and Oilers, Local No 6, atlliated with the American Federation of Labor, herein
called the Brotherhood, the National Labor Relations Board, herein called the
Board, by the Regional Director for the Fourteenth Region (St. Lours, Missouri),
issued its amended consolidated complaint dated September 23, 1942, against the
United States Cartridge Company, herein called the respondent, alleging that
the respondent had engaged in and was engaging 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.
With respect to the unfair labor practices the amended consolidated complaint,
as further amended at the hearing, alleged in substance that the respondent:
(1) discharged Elmer P. Nash on or about June 28, 1942; Harry H Smith
on or about July 14, 1942, and Frederick T. Peetz on or about September 4, 1942,
and has since refused to reinstate them because they engaged in union or
concerted activities for their mutual aid and protection ; (2) discharged Edwin A.
James on or about September 4, 1942, and has since' refused to reinstate him
because of suspected union activity; (3) from on or about November 1941 until
the date of the consolidated complaint warned its employees against joining
or being active in behalf of Local 825 and the Guard Local; questioned its
employees about their union membership and activities; made derogatory and
disparaging remarks about Local 825, Guard Local and their leaders ; threatened
its employees with discharge if they continued their union membership and
activity ; assigned those guards who were active in union organizational work
to undesirable posts; (4) on or about May 9, 1942, promulgated and posted a
1 See my concurring opinion in The Denver Tent and Awning Company case, supra.,
and, cases cited therein.
UNITED STATES CARTRIDGE COMPANY _ 903 -
rule prohibiting the solicitation for membership in,labor organizations and any
other anion activity on any property of the respondent and providing that viola-
tion of the rule would constitute grounds for immediate discharge ; and (5) by
the foregoing acts interfered with , restrained , and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act
The complaint and _acconip . utying notice of hearing were dilly served upon the
respondent and the charging unions.
On October 10, 1942 , the final day of the hearing , the respondent filed its
answer, denying- that it had engaged in the unfair labor practices alleged in the
amended consolidated complaint
Pursuant to proper notice, a hearing was held from October 5 to October 10,
1942, at St Louis, Missouri , before the undersigned , the Trial Examiner duly
designated by the Acting Chief Trial Examiner . The Board , the respondent,
and the charging unions all participated in the hearing either through counsel
or representatives Full opportunity to be heard , to examine and cross -examine-
witnesses , and to introduce evidence bearing on the issues was afforded all-
parties . During the course of the hearing counsel for the Board moved to amend
the amended consolidated complaint without objection . on the part of the re,
spondent1 Counsel for the respondent waived the required 10 days ' notice on
-the amendment . At the conclusion of the hearing , counsel for the Board moved
to conform the pleadings to the proof , with respect to names , dates, and places.
This motion was granted without objection. N
At the conclusion of the hearing counsel for the respondent argued orally; the
other counsel and representatives did not avail themselves of the opportunity to
do so . The undersigned advised all parties that they might file briefs with him,
provided such briefs were submitted within 5 days from the close of the hearing.
No briefs have been received
Upon the entire record in this case . and from his observation of the witnesses,
the' undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Maryland corporation and a subsidiary of the Western
Cartridge Company. It,,is presently operating in St Louis, Missouri, two adjoin-
ing plants, referred to in the record as plants 1 and 2 or areas 1 and 2, at which
it manufactures small arms ammunition for the United States Government. A
substantial part of the copper, brass, powder, lead, and other materials used in
the manufacturing process is purchased by the respondent and shipped to the
St. Louis plants from points outside the State of 'Missouri. The far greater part
of the finished products are shipped by the United States Government to points
outside the State of Missouri. The value of the materials annually used amounts
to several million dollars. The value of the/products 'manufactured annually
likewise amounts to several million dollars
The respondent operates the St. Louis plants under contract with the United
States Government Under the terms of, the contract title to all the physical
properties of the plants, including all machinery, equipment, the materials after
they reach the plant site, and the finished products is in the United States Govern-
ment.
V
' Substance of this amendment was to add to the complaint the allegation that the
respondent "did assign those actiie in organizational work for the Union to undersirable
posts." ( Counsel for the Board excluded from this amendment the Brotherhood.)
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent contended that it was not engaged in interstate commerce in
view of the fact that it neither sold nor shipped the articles it manufactured. This
contention is untenable inasmuch as the, respondent in operating the plants
purchases and ships in interstate commerce large quantities of the materials which
it uses in its manufacturing processes, so that even if the finished products did
not move out of the State of Missouri the incoming materials would be sufficient
to constitute engaging in interstate commerce within the meaning of the Act.'
This contention of the respondent has already been rejected by the Board$
At the time of the hearing the respondent employed in excess of 20,000 employees
at the St. Louis plants.
II THE ORGANIZATIONS INVOLVED
Local No. 825, United Electrical, Radio & Machine Workers of America, Plant
Protection Local, United Electrical, Radio & Machine Workers of America, both
affiliated with the Congress of Industrial Organizations, and International
Brotherhood of Firemen and Oilers, Local No. 6, affiliated with the American
Federation of Labor, are all labor organizations, admitting to membership em-
ployees of the respondent.
III THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; respondent's notice of May 9, 1942
The respondent commenced operations at the St Louis plants during November
1941. When operations commenced; Local 825, the Brotherhood, and apparently
other labor organizations began to attempt to interest the employees in organiza-
tion.
On May 9, 1942, the respondent posted throughout its plants the following
notice : '
MAY 9, 1942.
NOTICE TO ALL EMPLOYEES OF THE UNITED STATES CARTRIDGE COMPANY
It is a rule of the Company that there shall be no solicitation of membership
in any union or labor organization, or any other union activity, within, a [ny]
part of the buildings or grounds of the St Louis Ordnance Plant, which is
Government property, whether within or outside of working hours. Violation
of this rule shall be grounds -for such disciplinary action as the Company may
determine, including immediate dismissal.
[S] B. E BASSETT, General Manager.
By its terms the notice unquestionably restricts and admittedly was intended
to restrict the exercise by the respondent's employees of the right to self-organiza-
tion guaranteed in the Act. The question for determination is whether the
respondent was justified in singling out the employees' exercise of the right to
self-organization for prohibition. It is clear that the rule was intended to apply
to the parking lots, locker rooms, cafeterias, in fact -to all parts of the plant
including those where employees were not engaged in production or other work.
In explanation of the reason for the imposition of the rule, R V. Rickcord,
Industrial Relations Director of the respondent, testified that for several months
prior to its imposition the respondent had experienced difficulty in keeping em-
ployees in attendance at their machines They seemed to feel, he testified, that
because the plants were owned by the Government they were entitled to more
2 See N. L. R. B. v . Schmidt Bakery Co., Inc., 122 F. (2d) 162 (C. C. A. 4 ) enf'g 27
N L R.B . No. 146 (C-1627).
8 See Matter of U. S. Cartridge Company, etc , Cases Nos . R-3787 , R-3796.
UNITED STATES CARTRIDGE COMPANY 905
freedom from restriction and that many of them left their machines unattended
to talk, to smoke, or to go to the canteen for something to eat during
working hours. It was reported to Rickcord by a number of supervisory em-
ployees that union affiliation was among the subjects which were discussed by
the employees while they were so absent from their machines, and that some
canvassing for members occurred. It seems clear that, knowing that the employees
engaged in any number of activities other than union activities when they left
their machines, the respondent singled out union activities for prohibition, and
advised the employees that if they engaged in such activities on their own time,
during lunch hour, in the locker rooms, or on the parking lots, they were subject
to immediate dismissal. There was no showing that conversations concerning
unions or canvassing for membership constituted a reason for employees leaving
their machines., There was no showing that union activity in the plant during
the lunch hours,` or at any other time while the employees were on their own
time, interfered with production, or the safety or well-being either of the business
or the employees. Despite the lack of showing any justification for the imposition
of the rule on the employees' own time, the record shows that it was strictly
enforced so far as regards the employees' own time in the case of James and Peetz,
more fully discussed hereinafter.
The respondent argued that the imposition of the above rule was justified
because there was competition for members betweeh the Local 825 and the
A. F. of L. unions in the plants. There was no showing that this competition
was other than peaceable, that it erupted into violence or, tended to do so,
or that it consisted of more than the different organizations asking the same
or different employees to become members.
The respondent contends that the hazardous nature of its operations justi-
fied the imposition of the rule. While the hazardous nature of the operations
might justify the imposition of general restrictions looking to the safety of
the employees and the plants, it does not justify the singling out of union
activities for prohibition, as shown above.
After the promulgation of the May 9 rule and the filing of charges by the
unions, a number of conferences were held between representatives of the
charging unions, the respondent, and the Board. The respondent refused to
rescind or to modify in any material respect the notice of May 9. The re-
spondent did state that it would append a clarifying paragraph to the notice,
and it urged at the hearing that this offer negatived the Board's contention
that the notice was intended to discourage the exercise of or to interfere with
the employees' rights guaranteed in the Act. Notices containing the explana-
tory paragraph were not posted, and if posted they would not have had the
effect of dispelling the effect of the May 9 notice, since they too singled out
union activities for prohibition.
The record shows that before' and after the imposition of the May 9 rule,
employees were permitted with impunity to engage during working hours in
activities comparable to union solicitation,. such as solicitation of employees
to buy tickets for boat rides, solicitation of contributions for injured em-
ployees, solicitation to participate in gambling pools, and solicitation for em-
ployees to take out accident insurance. That these latter activities were
known to and participated in by foremen is shown by the record, and was
not denied by the respondent. Thus, while the respondent reprimanded and
discharged employees for engaging in union 'activities on their own time, it
permitted other comparable activities to be carried on during working hours.
'Although the respondent paid the employees for their lunch hour, the undersigned
finds that the lunch hour also constitutes the employees' own time.
906 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As found above, the record does not disclose that union discussion and
activity, as distinguished from other types of conversation and conduct, war-
-ranted the imposition of a restrictive rule in the interest of maintaining ef-
'ficiency, safety, and order No warrant at all was shown for the' extension
of such'rule to cover the employees' own time in the plants Evidence intro-
duced by the Board showing a material drop in the number of applications
for union membership each month after the posting of the notice, while not
conclusive; is persuasive of the fact that the notice did discourage union
affiliation of the employees Under these _ctrcumstances, the undersigned
finds that the respondent posted the notice of May 9, 1942, and enforced the
rule therein contained for the purpose of hindering and discouraging the
-exercise by its employees of their right to self-organization. By this conduct
the respondent interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act.'
B. The discharges of Edwin A. James and Frederick T Peetz
James and Peetz were discharged on September 4, 1942, admittedly for union
activity. The reason given for their discharge was violation of the respondent's
rule of May 9, 1942, against engaging in union activity on company time or
property.
The facts surrounding the discharge of James and Peetz are not in dispute. -On
the afternoon of September 3; James and Peetz asked 3 nor 4 employees who were
'coming off the'pi'ecediiig'shift and who were in the employees' locker room what
they thought about joining Local '823 This apparently constituted the entire
conversation. On the following morning the' employees to whom James and Peetz
had spoken told Henson, their foreman, about the occurrence'and asked him about
joining `Local 82.5.' He told them that they could do as they pleased and that he
would take the matter'up with Mr. Wilson; the general foreman. .
During the day affidavits were taken from the employees to whom James and
Peetz had spoken. During the next shift James and Peetz were called singly into
Superintendent Ebert's office. Ebert testified and the undersigned finds that he
showed the men a'copy of the May 9 rule and asked each man whether he had
seen the rule Each replied that he had. He then' asked each if he had violated
the rule They denied that they had. He then told'each that he had evidence
that they had violated the rule and that they were discharged. James' version
of the conversation- agreed substantially with the above, his only addition being
that he requested proof of the violation and that this was refused by Ebert.
Peetz, who was in the Navy at the time of the hearing, did not testify.
So far as the record shows, the above was all of the evidence that the respondent
had before it when it discharged James and Peetz for their activities in violation
of the rule. At the hearing James admitted that during working hours he had
discussed and spoken in favor of Local 825 in general conversations with the other
'adjusters. He testified that in his department they were able to get their quota of
work out 3 or 4 hotirs before quitting time, that thereafter the machines would be
'shut down, cleaned for the next shift, and that it was principally during t1 le period
-after the machines had been shut down that discussions regarding unions took
place, along with many other topics of conversation. While his admissions in
this regard might have some bearing upon the remedy by the Board to be applied,
it is clear that they had no bearing upon his discharge, since there was no showing
that the respondent had any knowledge of the conversations 'prior to his discharge.
6 See Matter of William Dar,ies Co , Inc and United Packinghonse Workers of America,
'etc., 37 N - L -R., R. 631. -
UNITED STATES CARTRIDGE COMPANY 907
In view of the fact that the respondent claimed that it did not attempt to discipline
employees merely because they conversed about unions, the undersigned finds that
James' engaging in conversations about unions during working hours presents no
bar to his reinstatement.
So far as the incident in the locker room is concerned, it appears that James and,
Peetz,violated the rule, if it be strictly and literally construed The question is
whether the respondent had the right to promulgate and enforce the May 9 rule,
curtailing the employees' exercise of their right to self-organization, merely because
of the fact thht the employees engaged in such activities upon its property. Both
James and Peetz were on their own time, as were the employees to whom they
spoke, inasmuch as the respondent allowed these latter employees 5 minutes before
the close of the shift in which to change clothes. There was no contention that by
speaking to the other employees in the locker room James and Peetz interfered
with their work ; the discharges were based solely upon their violation of the rule:
The rule has been found to be discriminatory ; its invocation to justify the dis-
charges of James and Peetz does not alter or excuse the fact that they were
discharged because on their own time they asked four other employees what they
thought about joining Local 825. This application of the rule confirms the finding
that the rule was intended to discourage union affiliation. Upon the entire record
the undersigned finds that the respondent discharged and refused to reinstate
James and Peetz for the purpose of discouraging membership in Local 825. By
such discharges the respondent discriminated with regard to their hire and tenure
of employment in violation of the Act. 11
C. The discharge of Elmer P. Nash
Elmer P. Nash started to work for the respondent on February 10, 1942, and
was discharged June 30, 1942. During that period he was absent from work on
four occasions. The reasons given for Nash's discharge on his termination notice
were his "habitual absenteeism," and his failure to report,reasons for his absences.
The record shows that in discharging employees for habitual absenteeism con-
sideration was given by the respondent to: (1) the reason for the absence; and
"(2) whether the employee notified the respondent in advance that he would be
absent, which would permit the respondent-to obtain a replacement Accord-
ingly, a consideration of these factors is indicated in evaluating the reasons
advanced by the respondent for Nash's discharge.
With respect to Nash's first absence, the date of which was not fixed, Nash's un-
contradicted testimony, credited by the undersigned, was that he became ill
during his shift and was instructed by May, his foreman, to remain home the
next day, if he did not feel better. Nash was next absent around the middle of
May for the purpose of attending his sister's funeral. Nash testified and the
undersigned finds that when he learned of his sister's death, he telephoned to
the plant and left word that lie would be absent. When lie returned-to work,
May accepted his explanation for his absence and did not question or check
Nash's statement that he had called in prior to his absence, although this call
had not been reported to May.' On the day before his third absence, May 29,
° The finding that Nash called in on this occasion is Based upon his credible testimony.
May testified that he was unable to find a record of the telephone call when he checked
at least 6 or 7 weeks later after Nash's discharge. The method of notifying foremen of
such telephone calls was demonstrably inefficient. On the occasion of Nash's final absence
lie called in but no report of his call was delivered to his foreman. A check made within
2 days showed that the call had been received The records of such calls were charac-
terized by one superintendent as incomplete and unreliable The undersigned therefore
credits Nash's testimony that he did call in on the occasion of his sister 's death.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'Nash informed , May that he would be absent on the following day. While Nash
and may both agreed at the hearing that Nash gave May prior notification of
his absence on May 29, they disagreed somewhat about what ' was said on that
occasion . Nash testified that he told May that he had had an automobile acci-
dent, that his wife had been injured and was in the hospital , that he had to take
care of a number of other things in connection with the accident , and that -May
said that he supposed the absence was necessary under the circumstances. At
the hearing May agreed that Nash told him that he had been in•an automobile
accident , but did not recall that Nash said anything about his wife ' s being in the
hospital . On his report dated July 9 to the personnel department regarding
Nash 's termination , May stated that Nash was absent on this occasion for the
purpose of repairing his automobile . At the hearing May testified that he first
learned that Nash repaired his automobile on this occasion after Nash returned
to work. Later he changed his testimony and said that Nash told him before
his absence that he was going to be absent for the purpose of repairing his auto-
mobile and that he, May , then directly told Nash to report for work the next day.
Apart from this inconsistency , May's testimony regarding the incident was.un-
certain. May admitted that Nash was permitted to go to work when he returned
after this absence .' The record dues not show that Nash was reprimanded or
disciplined upon his return to work, which would seem to be in order if he dis-
obeyed May 's direction that he was to come to work. Because of the uncertain
and inconsistent nature of May's testimony on this point , the undersigned credits
Nash's testimony and finds that Nash explained his absence to May before he
left and was excused from work by May . On the occasion of his final absence,
just prior to his , discharge , Nash was injured while tinkering with his automobile,
'called the plant , and reported that he would be unable to come to work because
of his injury.
When Nash returned to work on June 29 he found that his time card had been
removed from the rack. He was advised in the time , office that he had been dis-
charged . Unable to see May, who was off, he discussed his termination with
Pfeiffer, general foreman and May's superior . Nash told Pfeiffer that he had
called in and reported that he, would be absent and Pfeiffer , upon checking with
the unit superintendent 's office, found that Nash's call had been received , but had
not been transmitted to May. Pfeiffer then advised,Nash to return to the plant
the next day, when May would be present , and said that they could then see the
foreman and cancel the termination.
Nash returned to the plant the next day and met with Pfeiffer and May. May
told Nash that even though he had called in before his absence on this occasion, the
termination would stand and he would not be reinstated because he was a
habitual absentee , and Pfeiffer concurred in this decision.
The Board contended that Nash was discharged because of his activity in behalf
of Local 825. The respondent did not contend that Nash was not active in Local
825, nor that such activity was not known to May. Nash had been a member of
Local 825 prior to the time when he started to work for the respondent, and he
renewed, or continued his membership while employed by the respondent. Nash'
testified without contradiction and the undersigned finds that about a month after
Nash started working for the respondent he asked May if he thought union mem-
bership would be of benefit to the employees in, the department , in view of the
fact that some of them were not receiving their automatic raises in pay. , May
replied that he did not think so and added that he "didn't believe in unions," that
he had belonged at one time to the A F. of L. and that it was of no benefit to him
so far as working conditions and pay increases were concerned . He advised
Nash not to ."talk union" in the plant . A day, or so later Nash informed May
that he was a member of Local 825.
I
1
UNITED STATES CARTRIDGE COMPANY - ^ 909
The record shows that Nash did not take an active part in Local 825 until about
a month before his discharge. During the first week in June, Nash became shop
steward for Local 825 in his department and commenced to wear his steward's
and'his dues buttons. He was the only shop steward on any of the three shifts
in his department. He began to carry membership applications for the Union,
talked about it with other employees in the department, and succeeded in signing
up five or six of the employees as members. Nash was the only member of Local
82.5 in his department who carried application cards and solicited membership for
Local 825 . On one occasion Nash observed May examine the application for mem-
bership which Nash had given to one of the other employees,,in the department.
During June, Nash also distributed union leaflets at the plant gates.
Nash testified that after he started to wear his steward's badge, May was not
so friendly toward him as he had been, that he removed the employee who' was
helping with the work. he did, altough two men were retained to do the same
work on the other two shifts, and that he discontinued .the practice of having
Nash take his place when he was out of the department. May denied that his
attitude toward Nash changed after he became shop steward. He admitted that
the man who helped Nash had been removed and did not deny either that two men
were retained to do the same work on the other shifts or that he discontinued
having Nash replace him during his absence from the department. The under-
signed credits Nash's testimony upon these points.
Conclusions regarding Nash
The reasons advanced by the respondent for the discharge of Nash are uncon-
vincing Nash was absent on four occasions during a 41/.-,- to 5-month period.
In every instance he gave the respondent advance notice and explained the reason
for his absence. On two of the occasions he explained the reasons for his absence
to his foreman and was excused by him personally. On the other two occasions
he complied with the respondent's' rule by calling the plant and leaving word that
he would be absent. The reasons for his absence-death, accident, and illness-
were matters'over which he had no control. The reason given for his discharge
on his termination notice, namely that he failed to report the reasons for his
absence, is clearly not supported by the facts. As a usual practice before em-
ployees were discharged for habitual absenteeism, they were warned that con-
tinued absence would result in their discharge. The record shows that no warn-
ing of this type was ever given to Nash prior to his termination.
On the other hand, Nash's union activities occurred in the department' of May,
who "didn't believe in unions." Such activities were prominent because of the
fact that he was the only employee in the department who engaged in such'
activities and they were undeniably known to May. His discharge took place
on the first occasion he was absent after he'became shop steward and attempted
to interest other employees in Local 825 May; who was solely responsible for
the discharge and the refusal to reinstate, took away Nash's helper and discon-
tinued having Nash replace him after Nash commenced his active advocacy of
Local 825. 1
At the hearing the respondent, contended that Nash was not reinstated because
subsequent investigation showed that he engaged in horseplay. The record is
clear that the determination not to reinstate was made by May and acquiesced
in by Pfeiffer, on June 30 and Nash was advised-of the decision at that time.
The investigation which allegedly showed that Nash engaged in horseplay was
not made until after that time. May claimed at the hearing that he knew of
Nash's participation in the horseplay prior to his discharge, but was unable to
explain why he undertook an investigation to ascertain this fact, admittedly
910 DE.CISIONS ,OF„NATIONAL -LABOR -RELATIONS& BOARD
after Nash had been refused reinstatement. In view of May's contradictory
testimony on this point, and in view of the fact that May admittedly said nothing
to Nash about his engaging in horseplay at the time when he refused to reinstate
him, the undersigned rejects the respondent's contention in this regard, and finds
that Nash's alleged horseplay was not an element considered by May when Nash
was discharged.
Under all the circumstances the undersigned is convinced and finds that Nash
was discharged and refused reinstatement because of his activities in behalf of
Local 825. By his discharge the respondent discouraged membership in Local 825
and discriminated with regard to Nash's hire and tenure of employment in viola-
tion of the Act.
D. Concerted activity and orgainzation of the guards; acts of interference
Up until several days before July 9, 1942, the guards employed by the re-
spondent had been permitted, when relieved, to eat lunch in the canteens' in
the buildings and had also been allowed two relief periods, one before and
one after lunch, during which time they could go into the canteens and smoke
if they so desired. Several days prior to July 9 these privileges were re-
scinded and the guards were instructed, to eat their lunch while on their
post and were given no relief periods.
On the morning of July 9 approximately 86 guards from the preceding 11
p. in. to 7 a. m. shift met in the main guard room in plant No. 1 for the purpose of
requesting the restoration of their canteen privileges They discussed ways and
means of regaining their lost privileges, and six guards, Harry H. Smith, John
McCune, Christ -Sudbrock, Alfred H. Klier, Tegethoff and Robert Burgess,
volunteered to act as a committee to wait on Chief of Guards F. Lincoln
Luke. At the request of the guards, the committee drafted a telegram to
the War Department, stating that the guards were being discriminated against
by the withdrawal of the canteen privileges.. Smith collected the money for
the sending of the telegram from the guards.
The committee then met with Chief Luke and Captain' Barenkamp, his
assistant. Smith was spokesman for the committee, although, all members
had something to say during the conference. Smith told Luke that they had
been requested by the guards to confer with him regarding restoration of
the smoking and canteen privileges, and McCune handed Luke the draft tele-
gram the committee had drawn up. Luke stated that he alone was respon-
sible for the order rescinding the privileges, and that the privileges were
withdrawn because there had been a 35 percent drop in efficiency in guard
work during the lunch and rest periods. Smith argued that- the guards had
lost face with the other employees because of the order and that their morale
was lowered by the removal,of their privileges. Luke told Smith that he
should not take so much responsibility upon himself, and said that the order
would stand., Smith asked that Luke tell the guards of his decision, and
Luke did so. After Luke informed the guards that the lunch and rest periods
would not be restored, the committee at the instruction of the guards went
to the telegraph office and sent the telegram to Secretary of War Stimson.
About the time when Smith and the other guards from plant No. 1 were meeting
with Luke a large number of the guards in plant No. 2 met and discussed the
cancellation of the canteen privileges and considered taking the matter up with
Chief Luke. They decided to take it up first with Sergeant Daniels of the guard
' The supervisory employees over the guards were captains , lieutenants , sergeants, and
acting sergeants. The duties and functions of these employees clearly show that they
all are supervisory employees.
•UN'ITED STATES CARTRIDGE' COMPANY i, 911,
force. They explained to Daniels that they proposed to take the matter up with
Luke. Guard LaDassor testified without contradiction and the undersigned finds
that Daniels profanely told them that they had better stop their efforts or they
would find themselves in the Army. He stated that, the order rescinding the
canteen privileges did not come from Chief Luke, but from some one higher in
authority and was made because of a decrease in efficiency in guard work and .a
shortage of men for relief.
The guards from plant No. 2 did not attempt thereafter to see Luke. Instead,
on July 10 LaDassor went to the office of the United Electrical, Radio & Machine
Workers of America to obtain assistance and information' relative to the organiza-
tion of,the guards in a union. Arrangements were there made for two organiza-
tional meetings of the guards to be held July 11.
Guard John-H.-Mann credibly testified without contradiction and the under-
signed finds that Luke called Mann into the office on the morning of July 11 and
asked him if he had heard anything about a union for the guards or had received
a notice of a union meeting Mann informed Luke that he had not. The guards
held the two meetings on July 11 which had been arranged by LaDassor. At the
meetings they decided to apply for.a charter for-the Guard Local and LaDassor
was elected president. Smith, who was absent from the plant on July 11, was
informed of the actions taken at the meetings on July 11 upon his reporting to
work on July 12. He expressed his approval of the action taken and urged other,
guards to support the organization at an impromptu meeting of the guards held on
the parking lot before they went on shift. -
During the period while the guards were organizing Sergeant Daniels told a
group of the guards in the guard room, "What will happen is these-agitators will
get . . . kicked out of herd." 8
Prior to going on shift the guards line up for roll call. After the roll call on
July 12, the guard captain who called the roll informed the assembled guards that
Luke desired to speak to them As Luke passed through the ranks of the guards
on his way to the front, lie caught Smith by the arm, saying!"Smith, you come up
here. I want to make sure you hear and understand eves y word I say " Smith
complied by moving up to the front rank. Luke then directed Smith to move
directly over in front of him and said, "I want you to stand right in front of me
so that you will hear, and no alibi, and understand everything I say " Luke then
,proceeded to address the assembled guards. He said that a small minority of the
guards, whom lie characterized as "agitators," "troublemakers," and "disloyal
citizens," were causing dissension among the guards and were going to cause all of,
the 7,50 guards to lose their jobs; that they had taken it upon themselves to send
a telegram to Washington complaining that the guards were being discriminated
against, and that they had been holding meetings. He then read the text of the
telegram which had been sent to Washington. He continued that the men who
claimed he was discriminating against the guards were "liars by the clock." He
reminded the men of the oath they had taken to protect the plant and told them
to get it and read it over. He told them that it would only take "a scratch of the
pen" to replace the guards with soldiers and that he had that very day been in
conference with plant and army officials about the replacement of the guards.
He concluded by saying that the guards should not let this small minority
jeopardize the jobs of 750 men a Luke testified that he gave substantially the
same'speech to six different shifts of guards so that all of the guards and officers-
-
a This finding is based upon the credible and undisputed testimony of Guard Luaders.
9 This finding as to what Luke said is based upon the mutually corroborative testimony
of Smith, LaDassor, Luaders, McCune , and Hees . Luke's version substantially corrobo-
rates the abut e -
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could hear it. When asked how he knew that the guards were holding meetings,
he testified that it seemed to be common knowledge among the captains , lieutenants,
and sergeants. , When he made the talk to the shift on which LaDassor worked,
he called LaDassor up to the front before the other guards and told him that he
wanted him to hear it , as he did in the case of Smith.
On July 14 Smith was discharged under circumstances more fully discussed
hereinafter.
Also, , on July 14 , as the guards came off one of the shifts and congregated in the
guard room , they were advised by the time clerk that he could not receive their
time cards , as the acting sergeant desired to speak to them . Acting Sergeant
Gourley, whose duties and authority clearly show that he was a supervisory
employee , came into the guard room and addressed the guards as follows, "Boys,
I understand there is going to be a union meeting this afternoon , and if I were
some of you boys that was not in favor of it I would go down and tell them where
they were wrong. There is going to be a non-union meeting tonight at 209-B
gate. All who is not in favor of the union be down there, and furthermore, 75
guards from No. 1 area are going to attend the meeting . We have a slip over
here. If ; not in favor of the union I would like for you to sign it." A few of
the guards then signed the slip. Gourley, who admitted making the above state-
ments, testified that he was never reprimanded nor disciplined for making such
statements.
About July 15 LaDassor had a conversation with Sergeant Daniels, at which
Lieutenant Ruddell was present. LaDassor testified without contradiction and
the undersigned finds that Daniels asked LaDassor if he were going ahead with
the organization . LaDassor replied that he would not talk about the organization
at the plant. Daniels then said, "There is just one thing . If you go ahead with
this and I lose my job, I will get somebody 's tail . Further , you are a radical, a.
Red, and a Bolshevik , a rat and all you want to cause is trouble ." LaDassor asked
him if he meant what he ' said and Daniels answered , "God damn right I mean it,
every word of it, and you tell everybody I said so."
About half an hour later Daniels and Ruddell returned , and in the presence of
Guards Baumgarten , Short, and Acting Sergeant Appleby, LaDassor asked Daniels
if he was serious and meant what he said previously . According to LaDassor,
Daniels replied that he meant every word of it and told LaDassor , "Further, you
are dumb, you are ignorant, you don't know anything . You never worked any-
where before and never had a job. What are you going to do about it?" LaDassor
asked him if he meant what he said when he told the guards that if they joined the
union they would be fired , the draft board notified , and the guards put in the army.
Daniels replied that he meant that and that he would tell anybody that wanted to
know. LaDassor's testimony regarding the above incidents was not controverted
by Daniels or Ruddell and is credited by the undersigned. It seems clear that by
his insulting and highly provocative remarks, Daniels was courting an attack by
LaDassor . Since Ruddell countenanced and did nothing to counteract Daniels'
actions, it may be presumed that they were done with his approval.
After the conversations with Daniels, LaDassor telephoned Luke, and related
what had taken place. Luke said that it would not happen again and that he
would take care of Daniels.
The next day LaDassor arranged for a conference with Luke. When they met
in Luke 's office, LaDassor , asked what had been done about Daniels ' actions. Luke
said that the matter bad been taken care of. LaDassor asked Luke what would
happen if there was a recurrence of the event and he got into a , fight as a result
of such statements being made to him. Luke said that both participants would
be discharged . According to LaDassor , Luke then said that he wanted LaDassor
UN1ITED STATES CARTRIDGE, COMPANY 913 ,
on the job, that he could discharge several of the men, but that was pointless as the
Government would take care of a few of the boys in a few days. Luke then added, -
according to LaDassor, that LaDassor was no little shop steward in peace time,
that this was war, and that he (LaDassor) had forgotten the oath lie had taken
as a guard. Luke denied that he had made the latter statements to LaDassor.
In view of the fact that LaDassor was a credible witness, and the further fact
that statements attributed to Luke by LaDassor agree in tenor with statements
which Luke admittedly made at -the time of his speeches to the guards, the under-
signed credits the testimony of LaDassor in this-respect and finds that Luke made
the statements as testified by LaDassor.
LaDassor testified, and his testimony in this respect was corroborated by
Luke, that the respondent followed the practice of putting the older and more
experienced guards on gate posts From April until the time when he became
active in organizing the guards, LaDassor had been stationed upon gates exclu-
sively. The gates were desirable posts in that the guards came in contact with
other people and felt that the gate posts carried more responsibility than other
posts where they had to guard transformers, tunnels, fences, or powder magazines
and did not come in contact with other people. After LaDassor actively engaged
in organization work among the guards and was elected president of the Guard
Local, he was taken off his gate assignment and was placed upon the powder
magazine, fences, transformers, basements, and outside area posts. About a
week after he started to receive assignments of this nature, LaDassor asked
Lieutenant Ruddell of the guard force if he had anything to do with LaDassor's
assignment to posts of this type. According to LaDassor, Ruddell told him that
be was sorry, that lie could do nothing about it and that the order came from
higher up that LaDassor was not to be placed upon gates again. Ruddell testi-
fied that he did not recall making the statement. In view of Luke's testimony
that he had followed the practice of keeping certain guards on the gates and
in the absence of any explanation for the transfer of LaDassor from gates to
the more undesirable posts, coincidental with his attempts to organize the guards,
the undersigned thinks his testimony is entitled to credit, and-finds that he was
transferred to more undesirable posts because of his union activity, and that
Ruddell did make the statement to him that the order for such transfer came
from higher up.
Smith, McCune, Sudbrock, and Klier, other members of the committee which,
had conferred with Luke about restoration of the canteen privileges, testified
that while before July 9 they had uniformly been assigned to the more desirable
posts, immediately thereafter they too were assigned to the less desirable posts
in the plants. Luke did not deny either that these men had been assigned
to the more desirable posts before July 9 nor that they were assigned to less
desirable posts after that time, but he did deny that the change in assignments
was made as punishment because the men served on the committee. In view of
the fact that the change in assignments did occur immediately following their
service on the committee and in view of the fact that Luke so obviously resented
the action of the committee in sending the telegram to Washington, the under-
signed does not credit his denial and finds that the above members of that com-
mittee like LaDassor were assigned to less desirable posts because of their activity
on the committee. The undersigned further finds that such action was taken for
the purpose of discouraging collective action by the guards.
About the middle of August, McCune and LaDassor were called singly into
the office by Luke. Luke told each that he had proof that they'had violated
the May 9 rule. Although requested by each to specify in what respect, he refused
to do so, and warned them against further activities in violation of the rule
513024-43-vol. 47-58
1
`914 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD
It is clear from the'foregoingthat by warning and threatening employees with
discharge or replacement if they persisted in collective union activity; by ques-
tioning employees about their union activity ; by' characterizing the leaders of
collective and union activities as "agitators," "troublemakers," and "disloyal
citizens" ; by encouraging employees to engage in antt-union acts and statements ;
by addressing provocative and insulting remarks to the president of the Guard
Local ; and by assigning those active in collective and organizational activities
to undesirable posts, the respondent has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in.Section 7 of the Act.
%
E. The discharge of Harry II. Smith
The fact that Smith served upon the committee which, spoke to Luke about
restoration of the canteen privileges and that he was singled out by Luke when
he made one of his speeches about the act of the committee in sending the telegram
to Washington have been pointed out above. Beginning with the shift when Luke
spoke to the men, Sin ith, who for 3 weeks out of the preceding month had been
assigned to a guard post in Building No 123,,was assigned to guard the east fence
of a restricted and enclosed area inside the plant known as the "Mosquito Fleet."
'The guard on this post was supposed to guard a gate leading into the "Mosquito
Fleet" and a section of the fence near the`gate This was an isolated post, and
except for his relief, the guard thereon came in contact with no other guards
directly and with few employees Because of the loneliness of the post, it was
considered by the guards as one of the more undesirable posts. This was the first
time Smith had ever been assigned to this particular post.
The following night Smith was assigned to the same post and it was on that
night that the events occurred which the respondent gave as the reason for
Smith's discharge.
According to Lieutenant Bushbaum of the guard force, one of whose duties was
to check the guards on the various posts throughout the plant, he came to Smith's
post about 2: 30 a in )on'the morning of July 14 According to his testimony,
the point at which fie came on the post was about halfway between the limits of
the post ; according to the testimony of Smith and Guard Davis, who had formerly
worked the post, the point was at the end of the post. Bushbaum testified that
he waited at that point at Building No 126 for a period of about 10 minutes and
no guard passed him Then he moved a little further north along the post to the
corner of Building No 128 and again waited for the, guard to patrol by him
He waited for approximately 18 minutes, according to his testimony, and then
he say a guard come out of the rear of Building No 134 on the north end of the
post, proceed through the gate on the north end of the post, and come down
toward him. Bushbaum proceeded to meet the guard and when they met, he
asked the guard if he knew he was supposed to patrol the fence According to
both Bushbaum and Smith, Smith told him that he had been instructed to guard
the gate at all times and Bushbaum told Smith that he must be misinformed, for
the instructions were to patrol the fence and also to guard the gate. Bushbaum
testified'that Smith then admitted that he was supposed to patrol the fence and
.that he asked Smith why he was watching the gate instead of patrolling the
fence According to Bushbaum, Smith answered that he was inside the building
putting on his boots.. Bushbaum then told Smith that he was off his beat and
that he would have to relieve him and send him in to the guard office
Smith testified that on the night in question he patrolled the fence, but about
15 or 1S minutes after he finished one patrol, he saw someone down by{one of
the magazines and went down to investigate, when the man stepped in back of the
magazine. He went down to the spot and found the man to be Lieutenant Bush-
el
UNITED. STATES CARTRIDGE COMPANY 915
baum Smith said "Hello',' to Bushbaum and Bushbaum asked Smith where he
had been. Smith replied that he had been on, his post and that the only time he
had been off his beat was when he was relieved by Davis earlier in the evening.
Bushbaum then asked Smith why he had not been patrolling the fence and Smith
said that he had done so. Bushbaum told Smith that he did not think Smith was
a very efficient guard and that he`was going to take him in to Lieutenant Schuster.
Smith testified and Bushbaum agreed that Smith then said in substance that
the whole thing was a frame-up-that he had been on his post, all of the time
and that he really expected something more than a frame-up as crude as that
perpetrated by Bushbaum.
Bushbaum then took Smith to Lieutenant Schuster, who was in charge of the
guards on the shift, told him that he found Smith off his beat, that he did not
patrol his beat for approximately 30 minutes, and that he suggested that Sinith
be sent home for the rest of the evening Schuster then asked Smith what he had
to say. Smith testified and Schuster agreed that Smith in substance said, "Listen,
I knoiy what is up I would have been taken off that post if I had been running it.
If'I run up that post I would have been fired for running the post I am in a
spot either way and I know it." Schuster then told Smith that he was sending
hum home and for him to come in to see Chief Luke at 9 a. m Smith said that
he might or lie might not Later during the shift Schuster and Bushbaum made
written reports concerning the incident, which were forwarded to Luke and
which were introduced in evidence at the hearing.
About 9 a. m that same morning Smith met with Chief Luke in his office.
According to Smith, Luke referred to the reports of Schuster and Bushbaum
and said that they indicated that Smith had been off his post and had not been
walking it. Smith denied that he had been off his post, stated that he had been
patrolling as required, and further said that Bushbaum's report was not true.
Luke said that he was going to discharge Smith. Smith said that he had antic-
ipated that, but that he was not being discharged for being inefficient but because
of the fact that he had acted on the committee which sought the restoration
of the canteen privileges and for trying to organize the Guard Union According
to Smith, Luke then said, "I will tell you one thing, you shoot off your mouth
too much and talk too much," and advised Smith-that he was going to be inves-
tigated by the Federal Bureau of Investigation This was not denied by Luke.
Luke then discharged Smith
Conclusions regarding Smith's discharge
If the undersigned were convinced from the evidence that Sinith had left his
post unguarded on the night and morning in question, he would have no hesita-
tion in recommending dismissal of his case However, the undersigned is not
satisfied that this was the case Snuth, Bushbaumn, Schuster, and Luke disagreed
on many of the details of the various conversations which took place, but they
all indicated at one time or another that the gravamen of the offense with which
Smith was charged was not patrolling ,the fence during- the period while Bush-
baum was on the post in the vicinity of buildings 126 and 128. Bushbaum's
actions at the time indicate that he took Smith in to Schuster for not patrolling
the post and that his subsequent charge that ,smith was off his post lay in the
fact that Smith did not patrol past the buildings where he stood while he was
there. Although in his report he says that be observed a guard near the gate
when he first went to Building 128 from 126, he testified that he remained near
Building 128 for approximately IS minutes and did not leave it until the guard
(Smith) started towards him. Then, according to his own testimony, the ques-
tion he asked Smith was why he was watching the gate instead of patrolling
916 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
the fence. Again his recommendation to Schuster that Smith be sent home for the
rest of the shift instead of a recommendation that he be discharged, and Schus-
ter's adoption of that recommendation indicate that the offense that Smith was
being charged with was not that of leaving his post unguarded The evidence
shows that Schuster on many occasions, indeed on the line-up prior to Smith's dis-.
charge, had repeatedly warned the guards that he would personally discharge any
guard found asleep on his post or off his post. He insisted however at the hearing
that he had merely suspended Smith for the remainder of the shift and had not
discharged him.
Smith's testimony that he had,patrolled the fence earlier in the shift before
Bushbaum appeared is uncontradicted and is corroborated by other guards who
had posts in the vicinity of Smith's post. The evidence as to the duties and
extent of the post was in conflict. Bushbaum testified that there was in the
files a memorandum covering the duties and the exfent of the post. Although
the request was made that this memorandum-be produced, the respondent did
not produce it. Under the circumstances the' undersigned finds that the extent
of the post was as indicated in the testimony of Smith and Davis. It was
not shown nor contended by the respondent that the-guard on the post was
supposed to patrol the fence at any stated or designated periods There was no
telephone on the post, as there was on other similar posts, from which the guards
were supposed to call in at stated periods.
Upon consideration of all the testimony on the matter it appears to the under-
signed that Smith's offense of being "off his post" consisted of remaining in the
vicinity of the gate at the time Bushbaum came upon the post instead of patrolling
the fence. It was not shown that in so doing he was violating any instructions
or that he was not guarding his post From the gate Smith had a clear view
of the fence he was supposed to patrol and had, as found, earlier made the patrol
of the fence about three times every hour. There are a number of facts which
indicate that Smith was "on the spot" and that an attempt was being made to,
"frame" him, as he claimed. These include Smith's singling out by Luke at the
line-up, his change in assignment at this time to an isolated post where there
would be few witnesses to his performance of guard duty from a building where'
there were numerous employees about, Bushbaum's furtive method of checking,-
on the post on the occasion in question, and Smith's instant and repeated asser-
tion that he was the victim of a frame-up. This was denied by Bushbaum and
Schuster, each of whom denied that he had any knowledge of the part played
by Smith in acting on the committee seeking restoration,of the canteen privileges
or in attempting to organize the Guard Union. However, these denials are not
credited by the undersigned. As found hereinbefore, Chief Luke spoke to every
line-up for 2 days about the sending of the telegram and the action of a small
group of guards which was jeopardizing the jobs of all the guards, and at one of
the line-ups singled Smith out for special attention. It seems incredible to the
undersigned that these facts should not be known to Schuster and'Bushbaum,
closely associated with Luke as they were and whose jobs would also be forfeit in
the event the army took over. , ..
A consideration of all of these facts leads the undersigned to the finding that
on the occasion in question Smith was not in fact off his post and that he was
,discharged because of his union activity, the prominent part he played in the
committee's action in seeking restoration of the canteen privileges, and in the
sending of the telegram to Secretary of War Stimson. These activities are
within the protection of rights guaranteed in Section 7 of the Act. By attempt-
ing to discourage such activities by discharging Smith the respondent violated
the Act. 'I
UNITED STATES CARTRIDGE COMPANY 917,
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
I
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above,
L have a close, intimate, and substantial relation to trade, traffic, and commerce
among the states and 'tends to lead to labor disputes burdening and obstructing
-commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor
practices, the undersigned will recommend that it cease and desist therefrom
'and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the respondent imposed its rule of May 9 for the
purpose of discouraging and interfering with the employees' right to self-
organization. It will be recommended that the respondent be ordered to re-
scind the rule and to remove the notice of May 9. If the respondent is con-
fronted with a general disciplinary problem, it can promulgate and impose
general rules prohibiting extra-curricular activities generally, without singling
union activities out for prohibition. Upon the evidence contained in this
record there appears to be no reason for the prohibition of union' activities
on the employees' own time.
It has been found that the respondent discriminated in regard to the' hire
and tenure of employment of Edwin A. James, Frederick T. Peetz, Elmer
P. Nash, and Harry H. Smith because of their collective or union activity.
It will be recommended that the respondent offer Nash, and Smith immediate
and full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges, and make
them whole for any loss of pay each has suffered by reason of the discrimi-
alation against him from the date of his discharge to the date of the re-
spondent's offer of reinstatement, less his net earnings 10 during said period.
James and Peetz voluntarily joined the armed forces of the United States
after they were discharged by the respondent and accordingly are not avail-
able for immediate reinstatement. It.will be recommended that the respond-
ent upon application by James and Peetz within forty (40) days after their
respective discharges from the armed forces of the United States offer each
reinstatement to his former or a substantially equivalent position without
prejudice to his seniority or other rights and privileges.
It will be further recommended that the respondent make James and Peetz
whole for any loss of earnings which they may have suffered by reason of
the respondent's discrimination against them, by payment, to each of a sum
of money equal to the amount he would normally have earned as wages dur-
ing the periods (1) between the date of his discharge by the respondent and
the date of his enlistment in the armed forces of the United States and (2)
between a date 5 days after his timely application for reinstatement and the
I
10 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 unlawful
discharge and the consequent necessity of his seeking employment 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. T.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date of offer of reinstatement by the respondent, less his net earnings" during
those periods.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Local No. 825, United Electrical, Radio & Machine Workers of America ;
Plant Protection Local, United Electrical, Radio & Machine Workers of America,
both affiliated with the Congress of Industrial Organizations, and International
Brotherhood of Firemen and Oilers, Local No 6, affiliated with the American
Federation of Labor, are labor organizations, within the meaning of Section 2 (5)
of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (1y
of the Act.
3. By discriminating in regard to the hire and tenure of employment of Edwin
A. James, Frederick T. Peetz, Elmer P. Nash, and Harry H. Smith, thereby dis-
couraging membership in labor organizations generally, the respondent has
engaged in and is engaging in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
44. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends 'that the ' respondent , its officers , agents, successors, and
assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Local No . 825, United Electrical ,- Radio &
Machine Workers of America , C. I. 0., and Plant Protection Local, United
Electrical , Radio & Machine Workers of America, C I. 0, 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 and
tenure of employment or any term or condition of 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 representatives of their own
choosing , and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed in Section 7 of
the Act. iS
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Offer to Elmer P. Nash and Harry H.'Smith immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to their seniority and other rights and privileges ;
(b) Make whole Elmer P. Nash and Harry H. Smith for any loss of pay they
may have suffered by reason of the respondent 's discrimination against them
by payment to each of a sum of money equal to that which he normally would
have earned as wages from the date of his discharge to the date of the respondent's
offer of reinstatement , less his net earnings " during said period ;
" See footnote 10, supra.
12 See footnote 10, supra.
UNITED STATES CARTRIDGE COMPANY 919
(c) Upon. application by Edwin A. James and Frederick T. Peetz within
forty (4Q) days after their respective discharges from the armed forces of the
`United States, offer each immediate and full reinstatement to his former or a
substantially equivalent' position, without prejudice to his seniority or other
rights and privileges ;
(d) Make whole Edwin A James and Frederick T Peetz for any loss of
earnings, suffered by reason of the respondent's discrimination against them,
by payment to each of a sum of money equal to the amount he would normally
have earned as wages during the periods (1) between the date of his discharge
by the respondent and the date of his enlistment in the armed forces of the
United States, and (2) between a date five (5) clays after his timely 13 application
,for reinstatement and the date of the offer, of reinstatement by the respondent
less his net earnings x4 during those periods ;
(e) Rescind immediately the rule imposed on May 9, 1942, and remove the,
-notices containing that rule;
(f) Post immediately in conspicuous places at its St. Louis plants and main-
tain for a-period of not less than sixty (60) consecutive clays from the date-
of posting, 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 paragraph 1 (a)'and (b) of these recommendations; (2) that the respond-
ent will take the affirmative action set forth in paragraph 2 (a), (b), (c), (d),
and (e) of these recommendations; and (3) that its employees are free to remain
or become members of Local No 825, United Electrical, Radio & Machine Work-
ers of America, C. I. 0 , Plant Protection Local, United Electrical, Radio &
Machine Workers of America, C. I. 0, and that the respondent will not dis-
criminate against any employee because of such membership or activity;
(g) File with'the Regional Director for the Fourteenth Region (St Louis,
Missouri), within ten (10) days from the receipt of this intermediate Report a
report in writing setting forth in detail the manner and form in which the
respondent has complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board-Series 2-as amended, effective October 14,
1942, any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Shoreham Building, Wash-
ington, D C., an original and four copies of'a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of-the record or
proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original, and four copies of a brief in support thereof As
further provided in said Section 33, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of the order transferring the case to the
Board.
FRANK A MOURTTSEN,
Tr•ial Examiner.
Dated November 3, 1942.
13 As provided in paragraph 2 (c).
14 See footnote d0, supra.