Arnolt Motor Co.

National Labor Relations Board - Board Decisions

Jun 24, 1946

68 N.L.R.B. 868 (N.L.R.B. 1946)

In the Matter of ARNOLT MOTOR COMPANY' AND S. H. ARNOLT, DOING
BUSINESS AS ATLAS STEEL & TUBE COMPANY and INTERNATIONAL
UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, A. F. OF L.
Case No. 11-C-1189.-Decided June 24, 1946
DECISION
AND
ORDER
On December 5, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices affecting
commerce and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. He further found that the respondent had not
engaged in certain other unfair labor practices and recommended, as to
these, that the complaint be dismissed. Thereafter, the respondent filed
exceptions to the Intermediate Report and a supporting brief 2 The
Board has considered the rulings made by the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rulings
are hereby affirmed. 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, with the exceptions, modifications, and additions
noted below :
1. We agree with the findings of the Trial Examiner that the re-
spondent violated Section 8 (1) of the Act in (a) the conduct of its
Superintendent Ed Mason in discharging and threatening Paul Dean
on February 13, 1943; (b) threatening Dean with loss of his job on
March 27, 1943, if he did not cease distributing handbills in behalf of
the Union:' (c) interfering with the distribution of union circulars a
r The complaint, naming the first respondent as Arnolt Motor Company, Inc., was amended
at the hearing to drop "Inc." from the name
1 Inasmuch as neither counsel for the Board nor the Union filed exceptions to the Inter-
mediate Report, we adopt the Trial Examiner's recommendations that certain portions of the
complaint be dismissed.
9 The respondent contends that, in taking Dean back to work following the discharge of
February 13, 1943, and in paying him back pay for the period of discharge, it repudiated the
68 N L R. B., No. 114.
868
ARNOLT MOTOR COMPANY 869
week or two before the election; (d) promulgating the shop rule on
April 10, 1944, set forth in the Intermediate Report attached hereto;
(e) removing the buffers' stools in retaliation for Dean's attempt to
process the grievance of employee Nevah Gross ; and (f) in the state-
ments of Inspector Tay Hess and Foreman Jack Landis. We also concur
in the Trial Examiner's findings that the respondent violated Section 8
(3) of the Act in discharging Paul Dean and William Fisher on or
about May 31, 1944, and violated Section 8 (5) of the Act by failing
to bargain in good faith during the term of the 1944 contract and by
refusing, on and after November 29, 1944, to bargain concerning the
terms of a new contract.
2. The Trial Examiner found that the respondent violated Section 8
(1) of the Act in that Superintendent Elwood Bauder had instructed
Foreman Sickafoose to give non-union members more privileges than
union members in going to the rest rooms and to watch one employee
in particular, Marion Kinsey, a union committeewoman, whom Sicka-
foose was to discharge when he got a chance because she was suspected
of soliciting for the Union during working hours. However, Sickafoose
testified without contradiction, and we credit his testimony, that he did
not carry out these instructions, and, so far as the record shows, none
of the respondent's employees knew that such instructions had been
given to Sickafoose. In the light of these facts, we are unable to concur
in the Trial Examiner's conclusion. It is difficult to see how the mere
giving of instructions, which were never carried out or communicated
to the employees, can be said to have interfered with the employees
in the exercise of their rights under Section 7 of the Act.
3. In his Intermediate Report, the Trial Examiner described an in-
cident in which Superintendent Evans censured employee Nevah Gross
for accepting union dues during working hours and moved her into a
corner away from the other female employees. It is not entirely clear
from the Intermediate Report whether the Trial Examiner finds that
the respondent's conduct in this incident constituted a violation of Sec-
tion 8 (1) of the Act, or whether he has related the event merely as
background to the grievance involving the buffer stools, set forth in
unlawful action of Superintendent Mason and therefore cured the violation of Section 8 (1)
We find no merit in this contention inasmuch as the record shows that the respondent took
Dean back reluctantly and only after Dean and a union repie,entative had visited the re-
spondent 's lawyer, and it paid him back pay only after Dean had threatened to file charges with
this Board . The respondent also contends that, in threatening Dean with loss of his job on
March 27, 1943, it was not acting unlawfully because it thereby referred only to Dean's job
as a foreman , not his job as an ordinary employee The respondent argues that this inter-
pretation of its threat is the proper one, because shortly thereafter Dean's authority as foreman
was taken away from him We find no merit in this argument for the record shows that the
threat was made after, not before, Dean lost his authority as foreman . Thus, the respondent
must have meant that Dean would lose his job in the plant, an event which occurred not long
thereafter . Whether or not the threat would have been privileged had it referred only to the
loss of his job as foreman is a question we do not now decide.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Intermediate Report. Upon the assumption that the former is true,
the respondent has excepted to the finding. We agree with the respon-
dent that the record does not support a finding that it violated the Act
in segregating Nevah Gross under the circumstances and we have con-
sidered the incident only as background to the grievance regarding the
buffer stools.
4. The Trial Examiner found that the respondent discharged Troy
Stamper, in violation of Section 8 (3) of the Act. The respondent con-
tends that Stamper was not discharged but voluntarily quit, and that it
was justified in refusing to rehire him on the next day. In our judgment,
whether Stamper was discharged or whether he quit and was denied
reemployment, the respondent cannot be said to have violated the Act.
The facts, fully set forth in the Intermediate Report, show that the
respondent discharged and refused to rehire Stamper because, after
refusing to perform a task reasonably assigned to him by his foreman,
he walked off the job without permission and in face of a warning by
his foreman that his leaving the plant would be regarded as a quitting. The
Trial Examiner finds these to be the facts, but he concludes that, not-
withstanding Stamper's dereliction, the respondent would have retained
Stamper in its employ, subject to a reasonable penalty, except for the fact
that Stamper was an active union member. With this conclusion, we
do not agree. We shall accordingly order that the complaint be dismissed
insofar as it alleges that the respondent violated the Act in discharging,
or refusing to rehire, Troy Stamper.
5. We do not agree with the Trial Examiner's conclusion that the
respondent discharged Harvey Headlee and Virgil Shirey because of
their union activity, in violation of Section 8 (3) of the Act. The evi-
dence shows that they were discharged because they refused to accept
a transfer to the job of "hustling," or helping, on the night shift in
the automatics shop. The Trial Examiner found that there was a need
for hustlers on the night shift in the automatics shop and concluded that,
if the selection of Shirey and Headlee had been non-discriminatory,
the respondent would have been justified in taking disciplinary measures
for their refusal to accept the transfer. He also concluded however, that
their selection was discriminatory because among other things, (1) the
selection was not made on the basis of seniority; and (2) there was a
disparity in the degree of encouragement given Headlee and Shirey and
that given other transferred employees for becoming operators on ma-
chines in the automatics shop. We do not believe that, on the facts of this
case, the failure of the respondent to use seniority as the basis of selec-
tion can be regarded as evidencing a discriminatory intent. To begin
with, we do not agree with the Trial Examiner's finding that it is "rea-
sonably inferrable" from the existing contract that transfers were to be
made on the basis of seniority. The contract provides that "any transfer
ARNOLT MOTOR COMPANY 871
either requested by the employees or made by the employer shall be
subject to negotiation upon complaint of either the employees trans-
ferred or employees affected by such transfer." Thus the question of
transfer is, under the contract, an open one to be negotiated with the
Union on a case to case basis upon complaint from the employees.
Headlee and Shirey had the right under the contract to have insisted that
the respondent negotiate the transfer with the Union. But they did not
avail themselves of this right. However, as the Trial Examiner states,
even if the contract did not require that the respondent adhere to senior-
ity in transfers, "had the respondent genuinely desired to retain the
services of all its men, as it professed and as labor shortage at the time
would normally induce it to, the respondent would be expected to have
made a more equitable selection " The respondent's answer, supported
by the evidence in the record, is that its selection was an equitable one.
Headlee and Shirey were chosen before the other transferees because
their regular work had been exhausted, and they were doing only mis-
cellaneous work. This work could have been done just as well by female
employees, whereas the job to which they were being transferred could
not be done by women. And it is uncontroverted that "hustlers" were
needed in the automatics department. The Trial Examiner's finding that
Headlee and Shirey were not out of work at the time of the transfer is
true only in the sense that it was possible for their foreman to have
kept them busy at miscellaneous tasks. The record also shows that,
shortly after the respondent sought to transfer Headlee and Shirey to
the automatics department, it transferred four other employees to that
department and that it did so as their work in their former department
ended. Two of these four employees were union members and a third
was a steward. The last two employees left on the shift from which
the transfers were being made were Ralph Thompson, the president of
the Union, and Hobert Holloway, a union committeeman. Thus, the
method chosen by the respondent for effecting the transfers seems to us
to have been a reasonable one and while it may be that seniority would
have been a more equitable basis, in light of the facts stated above,
the failure of the respondent to use seniority does not establish dis-
crimination.
Nor do we agree with the Trial Examiner's conclusion that the trans-
fer was discriminatory because there was a disparity of encouragement
between that given Headlee and Shirey and that given the other trans-
ferred employees for becoming operators on the automatics. The record
shows, and the Trial Examiner finds, that Shirey and Headlee were told
that help was badly needed in the North Building to which they were
to be transferred, that the work there would last longer after the war
than the work in the South Building, and that when there was an open-
ing on the automatics they would have an opportunity to become auto-
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matics operators. It is uncontroverted that Plant Manager Brown told
the other four transferees the "same story" that he told Headlee and
Shirey, and that the four transferred to the automatics shop under the
same terms and conditions that had been offered Headlee and Shirey.
The record shows that, although these subsequent transferees became
operators within 2 weeks after their transfer, they served initially as
hustlers. The Trial Examiner also found evidence of discrimination in
the fact that, whereas the four subsequent transferees were not given a
cut in pay, Shirey was told that his transfer would result in a cut in pay.
However, the record indicates that Shirey was due for a reduction in
rate whether or not he was transferred. He had already retained his
rate as a turret lathe operator for 6 weeks after he had ceased operating
a turret lathe, although the regular practice was to reduce the rate after
2 weeks. The respondent contends that, while the four subsequent trans-
ferees retained their rate, had they not become operators before the
lapse of 2 weeks after transfer, they would have been reduced in rate
in accordance with the regular practice. In light of these facts, we are
unable to concur in the Trial Examiner' s conclusion that the respondent
gave more encouragement to the four subsequent transferees than to
Shirey and Headlee with regard to future employment possibilities in
the automatics department.
While it is true, as is apparent from a reading of the Intermediate
Report and the entire record in the case, that there are several factors
in the discharge of Headlee and Shirey which give rise to a suspicion
that the respondent may have been unlawfully motivated, in view of
the facts discussed above, we are unable to concur in the Trial Ex-
aminer's conclusion that the respondent violated Section 8 (3) of the
Act in discharging these two employees.
6. We agree with the conclusion of the Trial Examiner that the re-
spondent violated Section 8 (5) of the Act by failing to bargain in good
faith during the term of the 1944 contract and by refusing on and after
November 29, 1944, to bargain concerning the terms of a new contract.
The respondent defends its refusal to bargain with respect to the new
contract on the ground that certain changes in circumstances have ren-
dered inappropriate the unit which the Board had found appropriate in
1943. The Trial Examiner rejected the respondent's defense, finding
that the changes in ownership and operation of the two companies were
not sufficiently material to render the unit inappropriate and that, in
view of all the circumstances, the respondent was not acting in good
faith when it questioned the appropriateness of the unit in refusing to
bargain with the Union. We concur in the Trial Examiner's conclusion.
The record shows that, notwithstanding the changes, the companies
have continued to be closely linked by official and other connections.
Although Stanley Arnolt ceased to be the majority stockholder of the
ARNOLT MOTOR COMPANY 873
corporation on September 1, 1944, he has continued to own approxi-
mately 40 percent of its stock. He holds the offices of both president and
treasurer of the corporation and, admittedly, is the active head of both
companies and the dominant figure in determining their policies. Stanley
Arnolt's private secretary is Mary Meyers who is also assistant secretary
and director of the Corporation. Although she is paid exclusively by
Atlas, her only office is in the Arnolt plant. She performs secretarial
tasks for Stanley Arnolt when he is acting for Arnolt as well as when
he is acting for Atlas. While Atlas and Arnolt maintain separate bank
accounts, Mary Meyers and Francis Lightfoot, assistant treasurer of
Arnolt, jointly sign pay roll and other checks for both companies. Light-
foot also does accounting work for Atlas for which Arnolt, but not
Lightfoot, is paid. Atlas carries on its operations in a building which
is owned by Arnolt and which Arnolt uses for warehouse purposes.
This building is located only about one block away from the main Arnolt
plant. Atlas and Arnolt rent equipment to each other and the record
indicates that their respective employees have similar skills. Thus, while
it is true that there have occurred several changes since our unit deter-
mination in 1943, in light of the facts set out above showing the con-
tinued connection between the two companies, we believe that the prior
unit has not been rendered inappropriate.
The respondent argues, however, that Arnolt and Atlas employees
cannot as a matter of law be constituted a single unit for the purposes
of collective bargaining because, as a result of the change in stock owner-
ship of Arnolt, the two companies are now separate and independent
entities. This contention, in our judgment, ignores the realities of the
situation. While it is true that Arnolt and Atlas are separate legal enti-
ties, the facts show that they are in no sense wholly independent. Stanley
Arnolt, the sole proprietor and active head of Atlas, owns 40 percent
of the Arnolt Stock, is president and treasurer of Arnolt, has continued
to be its dominant figure, and is still in a position to formulate its labor
policies. Thus he is, within the meaning of Section 2 (2) of the Act,
the "employer" of the employees at both plants; he is the person in
actual control. It is well established that the Board may join in a single
unit for the purposes of collective bargaining the employees of two
separate entities where, as here, there exists common control .4
7TIn refusing to bargain with the Union, which had been certified
by the Board in November 1943, as to the terms of a new contract, the
respondent did not assert that the Union lacked majority status. We
agree with the Trial Examiner that the fact that another labor organiza-
tion, after such refusal, requested recognition as bargaining representa-
tive affords no excuse for the respondent's refusal to bargain. We find
4 See N. L. R. B. v Lund, 103 F . (2(1) 815 (C C A. 8), and cases cited therein.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Union represented a majority of the employees in the appro-
priate unit at all times material herein and that the Union's loss of
majority status, if any, at the time of the respondent's refusal to bargain
concerning a new contract is attributable to the respondent' s unfair
labor practices antedating such refusal.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Arnolt Motor Company and S. H. Arnolt,
doing business as Atlas Steel & Tube Company, and their officers, agents,
successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union, United
Automobile Workers of America, A. F. of L., as the exclusive repre-
sentative of their employees within the unit herein found to be appro-
priate with respect to labor disputes, grievances, rates of pay, wages,
hours of employment, and other terns and condition-, of employment;
(b) Discouraging membership in International Union, United Auto-
mobile Workers of America, A. F. of L., or any other labor organization
of their employees, by discharging or refusing to reinstate any of their
employees, or by discriminating in any other manner in regard to their
hire or tenure of employment, or any term or condition of their em-
ployment ;
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the rights to self-organization, to
form labor organizations, to join or assist International Union, United
Automobile Workers of America, A. F. of L., or any other labor organi-
zation, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section 7
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with International Union,
United Automobile Workers of America, A. F. of L., as the exclusive
representative of all the respondents' hourly-paid production and main-
tenance employees, including inspectors, but excluding office employees,
confidential employees, timekeepers, watchmen, guards, and all super-
visory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively rec-
ommend such action, in respect to labor disputes, grievances, rates of
ARNOLT MOTOR COMPANY 875
pay, wages, hours of employment, and other terms and conditions of
employment;
(b) Offer Paul Dean and William Fisher immediate and full rein-
statement to their former or substantially equivalent positions , without
prejudice to their seniority and other rights and privileges;
(c) Make whole Paul Dean and William Fisher for any loss of pay
that they may have suffered by reason of the respondents' discrimination
against them, by payment to each of them of a sum of money equal to
the amount which each normally would have earned as wages from the
date of the discrimination to the date of the respondents' offer of rein-
statement, less their respective net earnings during said period;
(d) Post immediately at their plants in Warsaw, Indiana, copies of
the notice attached hereto, marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director of the Eleventh Region (In-
dianapolis, Indiana), shall, after being duly signed by the respondents'
representatives, be posted by the respondents immediately upon receipt
thereof and maintained by them for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by the
respondents to insure that said notices are not altered, defaced or cov-
ered by any other material;
(e) Notify the Regional Director for the Eleventh Region in writing,
within ten (10) days from the date of this Order, what steps the re-
spondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that William Kinsey, Troy Stamper, Harvey
Headlee, and Virgil Shirey were discriminatorily discharged and that
the respondent reduced the pay of Ralph Thompson because of his mem-
bership and activity in the Union.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist International Union, United
Automobile Workers of America, A. F. of L., or any other labor
organization, to bargain collectively through representatives of their
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
We will offer to the employees named below immediate.and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay suf-
fered as a result of the discrimination.
PAUL DEAN and WILLIAM FISHER.
We will bargain collectively upon request with the above-named
union as the exclusive representative of all employees in the bar-
gaining unit described herein with respect to rates of pay, hours of
employment or other conditions of employment, and if an under-
standing is reached, embody such understanding in a signed
agreement. The bargaining unit is: All hourly paid production and
maintenance employees of the undersigned employers, including
inspectors, but excluding office employees, confidential employees,
timekeepers, watchmen, guards, and all supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action.
All our employees are free to become or remain members of the above-
named union or any other labor organization. We will not discriminate
in regard to hire or tenure of employment or any term or condition of
employment against any employee because of membership in or activity
on behalf of any such labor organization.
ARNOLT MOTOR COMPANY
By .............................
(Representative)
S. H. ARNOLT, doing business as
ATLAS STEEL & TUBE COMPANY
Employer.
By .............................
(Representative ) (Title)
Dated ........................
NOTE Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement upon
application in accordance with the Selective Service Act after discharge
from the armed forces.
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
ARNOLT MOTOR COMPANY
INTERMEDIATE REPORT
877
Messrs. Clifford L. Hardy and William 0 . Murdock, for the Board
Mr John Harrington, of Fyffe & Clarke, of Chicago , Ill., for the respondents.
Mr. Jesse W Layman, of Logansport , Ind., for the Union.
STATEMENT OF THE CASE
Upon a third amended charge, filed on August 22, 1945, by International Union,
United Automobile Workers of America, A. F. of L., herein called the Union,
the National Labor Relations Board, herein called the Board, by its Regional
Director for the Eleventh Region (Indianapolis, Indiana), issued its complaint
dated August 23, 1945, against Arnolt Motor Company and S H. Arnolt, doing
business as Atlas Steel & Tube Company, herein called respondents (except when
referred to individually when they will be referred to as Arnolt and Atlas, respec-
tively), alleging that the respondents had engaged in and were engaging in unfair
labor practices within the meaning of Section 8 (1), (3), and (5) and Section 2
(6) and (7) of the National Labor Relations Act, herein called the Act. Copies
of the complaint accompanied by notice of hearing were served upon the re-
spondents and the Union.
In respect to the unfair labor practices, the complaint alleged in substance, that
from July 1943 to the date of the complaint, the respondents had interfered with,
restrained, and coerced their employees by (a) interrogating their employees
concerning their membership in and their activities in behalf of the Union and
other labor organizations; (b) advising, urging, threatening and warning their
employees to refrain from becoming and/or remaining members of the Union;
(c) making disparaging and derogatory remarks to their employees concerning the
Union and other labor organizations; (d) maligning, vilifying and assaulting
representatives and officials of the Union in the presence of their employees, and
otherwise indicating to their employees their disapproval of and opposition to the
self-organization of their employees; (e) interfering with the distribution of
union literature by unlawfully searching and seizing from employees literature and
handbills of the Union; (f) threatening their employees with discharge, demotion,
or other reprisals if they joined or assisted the Union; that the respondents dis-
charged William Kinsey on or about March 15, 1944; Paul Dean and William
Fisher on or about May 31, 1944; Troy Stamper on or about May 23, 1945,
Virgil Shirey and Harvey Headlee on or about May 25, 1945, because of their
membership in and activity in behalf of the Union; that the respondents reduced
the rate of pay of Ralph Thompson on December 1, 1944, because of his member-
ship in and activity in behalf of the Union; that since August 26, 1944, the
respondents refused to bargain collectively with the Union as the exclusive repre-
sentative of all the employees in a unit alleged to be appropriate;' and that
since August 26, 1944, the respondents had bargained with employees in said unit
individually.
The respondents' answers deny the commission of the unfair labor practices and
affirmatively allege that the contended unit was found to be appropriate by the
Board on September 25, 1943, that the Union was designated as the collective
bargaining agency for the employees in such unit on or about October 23, 1943,
that a collective bargaining contract was executed on February 26, 1944, by the
respondents and the Union, that said contract expired on December 31, 1944, that,
' The alleged unit coincides with that found to be appropriate by the Board on September
25, 1943, to Case No R-5868, 52 N. L. R B. 856. Further details will be set forth herein
below.
878 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
prior to such expiration, the conditions on which the Board had found the re-
spondents to constitute a single appropriate unit had changed, that for that reason
the respondents had, since December 31, 1944, refused to bargain with the Union,
and that since January 1, 1945, Arnolt has been notified by Arnolt Motor Company
Employees Association that it represents a majority of the employees in that c
pany and that said respondent has refused to recognize either organization until
the question of representation has been determined by the Board.
Pursuant to notice, a hearing was held at Warsaw, Indiana, on September 6, 7,
8, 10 and 11, 1945, before the undersigned Trial Examiner, duly designated by the
Chief Trial Examiner. The Board and the respondents were represented by counsel
and the Union by a representative Full opportunity was afforded all parties to be
heard, to examine and cross-examine witnesses, and to introduce evidence bearing
upon the issues. At the close of the hearing counsel for the Board and the
respondents joined in a motion to amend the pleadings to conform to the proof
as to names, dates and incidental matters. The parties waived the privilege afforded
them to argue orally but answered questions of the undersigned respecting their
contentions. The respondent alone has filed a brief with the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Arnolt Motor Company, incorporated in 1939 under the laws of the State of
Indiana, is engaged at Warsaw, Indiana, in the manufacture and sale of steel preci-
sion products? The annual value of raw materials used by it exceeds $50,000, and
the greater part thereof is shipped to its Warsaw plant from points outside the State
of Indiana. Its annual sales of finished products exceed $100,000, and most of these
were, during the year preceding the date of the hearing, sold and delivered to
the United States Army.
Atlas Steel & Tube Company, under which name S H. Arnolt, an individual,
is doing business in Warsaw, Indiana, fabricates metal tubing, most of which is
used in aircraft motors 3 The annual value of raw materials purchased by Atlas
for use in its place of business at Warsaw exceeds $25,000, all of which materials
are shipped to its plant from points outside the State of Indiana Its annual sales
of finished products exceed $50,000, and approximately 30 percent thereof is sold
to companies operating under contracts with Federal War Agencies and is ulti-
mately shipped by them to points outside the State of Indiana.
The respondents admit they are engaged in commerce within the meaning
of the Act.
II THE ORGANIZATION INVOLVED
International Union, United Automobile Workers of America, affiliated with the
American Federation of Labor, is a labor organization admitting to membership
employees of the respondents.
III THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
The first indication of union activity among the respondents' employees revealed
by the record was a consent election held in 1942 which the Union lost. In
' In peacetime Arnolt had manufactured marine engines.
$In peacetime it had manufactured tubular furniture.
ARNOLT MOTOR COMPANY 879
February 1943, employees Paul Dean, William Fisher, and Warren Wagner, of
the Atlas buffing department, having read that wages and jobs were going to be
"frozen," decided to ask for a raise Fisher and Wagner asked Dean to do the
talking for them. At 7:30 a in. on February 13, 1943, they went to Atlas Super-
intendent Ed Mason and Dean explained to him that they would like to have a
raise before they were frozen in their jobs. Mason, with no other provocation, told
Dean he was discharged at once for agitating the men to ask for a raise. Mason
told Fisher and Wagner to return to work and they would receive a raise. He
told Dean to go to the office where he would give him his check Dean, however,
first returned to the buffing department to gather some clothes and talk to the
buffers. Mason followed Dean and threatened to "fix" him so that he could not get
another job When Dean went to the office, Mason took Dean' s badge and then sent
him home to get his tool checks as a prerequisite to receiving his pay . When Dean
returned he was kept waiting in the guard house for about an hour before S. H.
Arnolt's secretary, Mary Meyers, came to the guard house and gave Dean his pay
and separation papers On the latter it was stated that Dean was discharged for
being a labor agitator. Dean protested and asked to see Mason. When he was con-
ducted to Mason, however, Mason told Dean that he would "take it and like it."
Dean immediately went to see an attorney and then went home. About a half
hour later Mason telephoned Dean, told him that "maybe" he had been "a little
too drastic" and to come to the plant where Mason would give him a paper
which would enable him to get a job. Dean went to the plant and Mason offered
him a separation paper stating that Dean was discharged for unsatisfactory coopera-
tion. Dean replied that that was no better than the other and that he would keep
the one he had. On February 18 Dean went to see about unemployment compensa-
tion and was told he could not receive any on the separation paper that he had and
was advised to see a union representative Dean did so at once and the same day
he and the union representative went to the office of Everett Rasor, an attorney
and also secretary of Arnolt. They told Rasor that charges would be filed if Dean
were not reinstated Rasor promised to talk to S. H. Arnolt At 10 p. m. that
night, February 18, Mason telephoned Dean and said he had made a mistake in
discharging Dean, that he had put a woman on Dean's buffing job, and that the
work was all piling up. He then asked Dean what he wanted to return to work.
Dean said that he wanted pay for the 5 days that he had lost. Mason told him to
return, promising to get the money for him and asking Dean to bring in his
separation paper. Dean returned to work on the following morning, surrendering
his separation paper to Mason. On the next pay day Dean did not receive the
5-days' back pay, and he had some difficulty getting it, Mason telling him to get it
from S. H Arnolt and the latter telling him to get it from Mason? On his third
visit to S. H. Arnolt to try to get his back pay, Dean told him that the employees
would like to have a union and that they would file charges and use his discharge
and loss of pay as campaign material Arnolt told him to send Mason in at once
Dean did so, and about 15 minutes later Mason paid him in full for his loss of pay.
About March 27, 1943, the Union began an organizational campaign . Prior to this
and after his reinstatement, Dean had been given the title of foreman of the
buffers in order to give him a raise in pay. Except for the first week, however,
Dean gave no instructions and never was entrusted with the authority of a fore-
man.5 When the campaign began, Dean became very active, signing up members
" In one of Dean's talks with Arnolt, the latter said that he could not see why the Union
had anything to do with the matter even if Dean was a member, that they did not have a
union shop, and that the Union could not make him pay.
After the first week the general foreman gave the buffers their orders direct and not
through Dean.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and passing out handbills before work. One day when Dean was passing out hand-
bills Arnolt told Dean that he was surprised at him taking a position against the
company after he had been promoted to foreman and told him he had better stop
it or he would lose his job.
The union campaign proceeded through the summer of 1943 and the Union
petitioned the Board for an election. On September 25, 1943, the Board directed
an election to be held for the employees of both respondents in a single unit, and
an election was scheduled for October 14, 1943. A week or two prior to the
election two of the plant guards began to snatch from the hands of the women
employees as they entered the union circulars they had just received and to burn
them in the stove. This lasted for a couple of days until Dean told the women,
as he passed the circulars to them, to fold the circulars so the guards could not
get them Dean spoke to Charles McClellan, works manager for both respondents,
about this practice of the guards, and McClellan told him that the literature should
not go into the plant, that he wanted'. the employees to work.
The Union was chosen as barga_ning representative in the election of October
14, 1943, and on November 5, 1943, the Board issued its certification On February
26, 1944, the respondents and the Union executed a collective bargaining contract,
which was to continue until December 31, 1944, and from year to year thereafter
unless terminated by notice given by either party 30 days prior to the expiration
of the calendar year. Following the certification of the Union, Foreman Walter
Sickafoose was instructed by Superintendent Elwood Bauder of Arnolt's automatic
screw machine department to give non-union members more privilege than union
members in going to the rest rooms. He was to speak to the union members if he
thought they were going to the rest rooms to talk. One employee, in particular,
Sickafoose had been instructed to watch-Marian Kinsey, a committeewoman,
whom he was given to understand he was to discharge when he got a chance be-
cause she was suspected of soliciting for the union during working hours.6
On April 10, 1944, the respondents promulgated shop rules, among which was
one reading. "Debating, agitating or solicitation of memberships in organizations
is not permitted on Company time. This includes the ten minute rest periods and
also the fifteen minute lunch period." This rule remained in force throughout
the period of the Union's contract?
About April 1, 1944, Atlas, which had until then occupied space in the Arnolt
plant, moved to a building, about a block away, which was owned by the respondent
Arnolt and which had been theretofore used exclusively as a warehouse by both
respondents. Prior to moving, the Union's financial secretary, Nevah Gross, had
worked at a tube-bending bench with other girls. She had occasionally accepted
dues payments during working hours, bringing the receipt therefor to the paying
member the next day Atlas Superintendent Frank Evans8 censured Gross for
accepting the dues during working hours, and when the Atlas plant moved to the
new building Gross was separated from the other girls and put in a corner One
Saturday in April, Dean, who was a shop committeeman, saw Gross crying,
went to her, and asked her what the matter was She told him that Evans had
talked to her and gloated over the fact that she had been placed where she could
6 Sickafoose was not in Arnolt's employ at the time of the hearing.
r On January 22, 1945, a new set of rules was promulgated by Arnolt in which the above
rule appears without the second sentence. The existence of the earlier rule, invalid under the
Act, inferentially supports Sickafoose's testimony of Bauder's instructions regarding the
union members' use of the rest rooms.
9 The record is not clear as to when Evans became superintendent or what position Mason
occupied at this time.
ARNOLT MOTOR COMPANY 881
not talk for the Union. Dean took the matter up as a grievance. The foreman
refused to have anything to do with the matter so Dean went to Evans. Evans
told Dean that he had better get back to his buffing machine and stay there or he
would take the stools away from the buffer.9 Dean returned to his work. About
10 minutes later Evans came and ordered all the buffers off their stools, removed
the stools, and locked them up. The buffers wrote up grievances and the steward
took them to the foreman, who wrote his disposition on them but said he could
not settle them. The steward and the shop committeeman then went to Evans who
likewise put his disposition on the grievances but said he could not settle them.
Dean then telephoned Personnel Director Martin, whose office was at the Arnolt
plant. Martin asked Dean why they did not wait for the regular Monday morning
meeting with management. Dean replied that the buffers were going to quit if the
matter was not settled right away. Martin then told Dean to come over to his office.
Dean and William Fisher, the committeemen who worked at Atlas, got passes
from their foreman to leave the plant, went to the Arnolt plant, and asked the
guard to call the three other members of the shop committee. When they were
all together the guard informed them that Martin was waiting for them and
passed them in. Martin heard the grievance and then said that he would not do
anything about the matter before Monday because McClellan and President Stanley
Arnolt were not there and he would have to take the matter up with them.10
During the period of the 1944 contract the respondents had a rule that all
female employees that worked at any time on machines should wear caps or nets
covering their hair. Sometime after May 1944 and during the term of the contract,
a union committeeman at the Arnolt plant was informed that one of the girls was
permitted to violate this rule. He requested the steward to file a grievance thereon.
Later he spoke to Foreman of Inspectors Tay Hess and asked him why he did
not require this girl to wear a cap like the rest of the girls. Hess replied, according
to Troy Stamper's undenied and credited testimony, "By God, I am running this
inspection department and the union is not going to have any interference over
here."
In about March 1945, employee Troy Stamper, in the Arnolt automatic screw
machine department, frequently got into conversations about the Union, sometimes
with his foreman, Jack Landis. In these conservations, Landis told Stamper,
according to the latter's undenied and credited testimony,11 that the Union was
no good, that Stamper would not get anywhere with the company as long as he
belonged to the Union, and that the Union contract did not mean anything, and
also said, "To hell with the God-damned union."
By the foregoing, as well as by other acts hereinafter related, the respondents
interfered with, restrained, and coerced their respective employees in the exercise
of the rights guaranteed in Section 7 of the Act.
'I he buffets had had stools to sit on for the preceding 6 or 8 months.
10 During this period McClellan as well as Martin usually met with the committee. The
record does not disclose the ultimate disposition of the grievance.
31 Landis denied that he had told Drabenstott that he would never get anywhere with the
Union Since there was no testimony by Board witnesses that such statement had been made
to Drabenstott, the denial may have been intended to go to Stamper' s testimony . This denial
was coupled with a denial of a statement attributed to Landis by Drabenstott to the effect
that Drabenstott should not press a grievance too hard or Drabenstott might be in the position
of a committee man named Patterson, who had been laid off. The undersigned credits Draben-
stott 's testimony that he was told by Landis to "peddle along easy."
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The discharges and alleged discrimination in regard to hire and tenure
of employment
1. William Kinsey
William Kinsey, whose wife, Marian Kinsey, was already employed by re-
spondent Arnolt, applied for a position there in November 1943 and was told that
they would call him when there was an opening About January 1, 1944, Kinsey
was called and given a job. At that time Kinsey procured a 90-day farm release
from the County Agricultural Agent and was informed by Superintendent Bauder
that the Company would secure a permanent release for him Kinsey had had
5 years' previous experience in another machine shop and was started at Arnolt
as an automatic screw machine operator under Foreman Sickafoose.
About March 9, 1944, Kinsey joined the Union, and about the same time he
accepted a position as steward, wearing a steward's badge on his cap On the
first day he wore his badge, Sickafoose said to him, "Well, I see you are going
to run the department from here on." Kinsey testified that starting at this time
his superiors changed their attitude toward him and made him feel "as welcome as a
skunk at a lawn party."
About a week later, Bauder reassigned some of the men, putting set-up men on
machines and putting Kinsey and another operator on laboring jobs, hauling out
shavings , sweeping the floor, hauling supplies and oil, and cleaning the machines
At the time of this change, Bauder told -Sickafoose to take Kinsey off of the
machine and give Kinsey what he had voted for 12 The record is not altogether
clear as to who took Kinsey's machine when Kinsey was assigned to the laborer's
job, which in shop parlance was called "hustler". Sickafoose testified that Bauder
told him to put John Ross, whom Sickafoose had obtained from another shift, on
that machine and that he first put Ross on as a laborer and then put him on
Kinsey's machine. Sickafoose believed Ross was not a member of the Union.13
Clarence Drabenstott testified that Bauder assigned him to Kinsey's machine when
Kinsey became a hustler, that he was not at that time a union member , and that
he had less seniority than Kinsey.14 Drabenstott had been an automatic operator
on another shift. If Drabenstott did operate Kinsey's machine, it was for a few
days only, since he testified that he had worked for Sickafoose only for short
periods. Kinsey testified that his machine was taken by Roland Gross, a set-up
man, who had been "bumped back" when he became a hustler, and that Drabenstott
may have operated the other machine . In view of the confusion of testimony, the
undersigned makes no finding as to whether Kinsey's demotion was discriminatory
so as to lead to a possible conclusion that Kinsey's later discharge was dis-
criminatory.
When Kinsey's 90-day farm release expired on March 30, Arnolt made no effort
to renew it as Bauder had promised . On the contrary, Personnel Director Martin
12 Sickafoose understood this to mean that since the Union wanted seniority and Kinsey had
less seniority than the men who were to go on the machines, Kinsey would have to start
over again . Kinsey testified that Bauder sought to belittle him whenever he could and described
Bauder as a young man of overbearing demeanor There was no showing that Bauder was
less overbearing toward others . Bauder had died before the hearing . Kinsey started at the
lowest rate of pay for an automatic operator and his rate remained the same when he became
a hustler.
18 Sickafoose testified that he had asked for Ross because Ross was about to be discharged
for inability to get along with his foreman Ross had more seniority than Kinsey.
14 Drabenstott testified that he was moved from No 2 automatic to No. I which had been
Kinsey's, and that a man Hatfield was transferred from an internal grinder to the No. 2
automatic.
ARNOLT MOTOR COMPANY 883
gave Kinsey his termination papers. Kinsey, himself, then procured a permanent
farm release and a USES referral card to Arnolt. Martin reemployed Kinsey,
and the latter returned to his job as hustler Kinsey testified that if there was a
dirty job to do, Sickafoose always assigned it to him 15 One night when Kinsey
had caught up with his work and had nothing to do, Sickafoose came to him and
told him that if he did not keep busy he would discharge him Kinsey replied that
Sickafoose would have to give him an assignment. This requirement of constant
work is in contrast to the description of the work of hustlers or "helpers" as given
by Works Manager William Brown.16 Brown testified: "After a helper was on a
helping job for a few days, he learned his work. Most of them found that it
wasn't very hard, and they had a little time to stand around We rather liked that,
because if he, the helper, was interested in learning the automatic work, instead
of standing around he would spend his time at the machine with the operator to
learn something about it. After he began to get an idea of the operation of the
machine and what the handles were for, and so forth, then oftentimes the
operator would take the helper's job for an hour or two hours, and let the helper
run his machine. In that way they became operators"
In early April, 1944, Kinsey spoke to Bauder about returning to the automatics
as an operator, and Bauder told him that they expected to start up some auto-
matics soon and that Kinsey would be placed on them Although the automatics
were subsequently started, Kinsey was not returned to them but was given a job on
a sand blaster, an unskilled job but superior to hustling After working on the
sand blaster for about 2 or 3 weeks, Kinsey decided to get another job and
procured one to deliver milk starting at 6 :30 a m , April 19 On the night of
April 18-19 (Kinsey was on the night shift, from 11 p in. to 7 a. m ), Kinsey gave
Sickafoose 2 weeks' notice of his intention to quit, explaining that he was going
to deliver milk and asking Sickafoose if he would give him a pass at 6 30 a in
for the balance of his time there, as that was the time he was to start on his
route. Sickafoose said that he would give Kinsey a pass for the one morning
but would have to speak to Bauder, presumably as to the other mornings At 6:30
Kinsey asked Sickafoose about the pass and the latter said that Bauder had in-
structed him not to give Kinsey one. Kinsey punched out and left anyway, not
returning until he was sent for to receive his termination papers 17
Sickafoose testified that they had difficulty keeping the hustler jobs filled because
it was a less desirable job and the hustlers would quit when no openings occurred
for other jobs. The treatment accorded Kinsey in some respects indicated a
hostility on the part of Arnolt to the Union, This appears from Sickafoose's appar-
ently derisive remark to Kinsey, when the latter became a steward, that he saw
Kinsey was going to run the department, from the fact that Sickafoose apparently
loaded more work on Kinsey as a hustler than was customary, and from the
failure of Bauder and Sickafoose to keep their respective promises to Kinsey
However, although the circumstances of Kinsey's demotion and the omission
thereafter to put Kinsey back on the automatics appear to have a possible relation
to his union membership and activity, evidence was lacking or too vague as to
contrasting favorable treatment of non-union members and with respect to Kinsey's
successor on the automatics. There is no evidence that a non-union man of less
seniority was permanently assigned to Kinsey's machine on his shift. There is no
15 Kinsey testified that whenever it rained hard at night, that would be the time he would
have to go outdoors after oil.
16 Brown succeeded McClellan as Arnolt works manager in November 1944
17 Kinsey testified that he was told by his wife that his time card had been removed from
the rack before 7 a in on April 19
696966-46-57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence that Sickafoose was more lenient with other hustlers. For all that appears,
men with greater seniority (Drabenstott for a short period excepted) may have
been the favored operator. Arnolt twice displayed an apathy toward retention of
Kinsey's services which appears rather unusual in times when labor was scarce,
and this arouses suspicion that the respondent desired to lose the services of a
good employee18 merely because he was an active union member. The undersigned,
however, regards the evidence as a whole as inadequate to warrant the inference
of discriminatory discharge of Kinsey as alleged in the complaint.
2. Paul Dean and William Fisher
Paul Dean was employed at Atlas in March 1942 as a general laborer at 40
cents an hour. About 6 months later, after he had received several automatic
increases in pay, he asked the foreman for a buffing job and was given the job
A week later he received an increase of 121/2 cents and before the end of the
year 1942 he had received another increase. At the time of his first discharge on
February 13, 1943, as hereinbefore related, he was receiving 90 cents an hour.
After his reinstatement he was given the nominal position of foreman of the
buffers in order to enable him to receive another increase in pay. Dean was on
the contract negotiation committee which continued as the shop committee. In May
1944 he was chairman.
William Fisher was employed by the respondent Atlas as a buffer in August
1942. One of the raises he procured was the one obtained for him by Dean just
before Dean's discharge in February 1943. Fisher was elected a member of the
shop committee shortly after the union contract went into effect in February 1944.
In early May 1944 when the Union and the respondents were preparing to file a
Form 10 with the War Labor Board they found themselves in need of an interpre-
tation President Arnolt told International Representative Jesse Layman that he
would make an an appointment with a Captain Engle in Chicago to see if the
latter could assist in getting someone from the W. L B. to give them an interpre-
tation. An appointment was arranged for a joint meeting on May 10. Layman,
accompanied by Dean, went to Chicago At Engle's office the switchboard girl gave
Layman a pass but refused Dean one. Layman had her call Engle's office S H
Arnolt, being there, spoke to Layman and said that Dean was not to come up as
be had not received permission from Atlas to be there. Layman said that he could
not come without Dean. Arnolt told Layman he would come down In a few
minutes Arnolt came down, as Layman testified, in a rage, went to Dean, and asked
him "what the hell" he was doing there. Dean explained that the Union had
elected him to come and that he had told his foreman he would be absent on union
business Arnolt said that that made no difference and that he doubted that
Dean would have a job when he returned. Later, arrangements were made by
respondents' counsel for all to meet at the offices of the W. L B.
Around the middle of May, McClellan telephoned Layman and complained of
Dean, saying that they were getting nowhere in their discussions and grievance
procedure. He told Layman that Dean was an agitator, was trying to stir up
trouble, was trying to cause a strike in the plant , and asked Layman to take care
of the situation. Layman testified that his investigation proved the accusations to
be unfounded.19
Sickafoose testified that Kinsey had been a good operator.
One matter which apparently annoyed McClellan was the fact that, when he asked the
committee to modify ,the contract by substituting "personnel director" for "superintendent"
in the contract provision concerning the disposition of grievances, Dean had refused to make
the change. There was no one at the Arnolt plant holding the title of superintendent at that
time, although there was a superintendent at Atlas. William Brown had been Arnolt plant
ARNOLT MOTOR COMPANY 885
In May, 1944, Atlas laid off about 12 employees, including employee Bill Patter-
son, a committeeman. When it came to the attention of the shop committee that
one or two of the foremen were doing manual work contrary to the committee's
understanding of the terms of the contract,20 it decided to take the matter up as
a grievance. Dean, chairman of the shop committee, was customarily spokesman
for the committee. On May 22, 1944, the committee attended its regular weekly
meeting with management, then usually represented by Personnel Director Martin
and Charles McClellan, vice president and works manager. Dean told McClellan
that Foreman Bob Wiest (of Atlas) was doing packing, sealing, and shipping every
day and asked McClellan to put a production employee on that job. McClellan
replied that Wiest did not do that full time, that he would not put another employee
on that job, and that he was "damn tired" of Dean's trying to run the Union and
the company too 21 Dean raised the same issue at the meeting of May 29 and
when McClellan again refused to take any action, Dean said that he was going to
write up a formal grievance on it. McClellan replied that Dean would be sorry
if he did. After that meeting Dean returned to the Atlas plant, noticed Wiest still
doing the same type of work, and asked the steward to speak to Wiest. Dean then
went to the rest room where he apparently was smoking. Wiest came into the rest
room a couple of minutes later and asked Dean if he intended to write up a griev-
ance about his working. Dean replied that he would if Wiest did not stop Wiest
remarked that he ought to discharge Dean right then for smoking.22 When Dean
left the rest room the steward told him he had spoken to Wiest about doing
productive work and that Wiest had replied that he had orders from McClellan
to continue. Dean then got a grievance pad and wrote a grievance slip. The
steward got Wiest's signature,23 and with William Fisher, the other committee-
man who worked at the Atlas plant, took it to Plant Superintendent Frank Evans.
He returned shortly and told Dean that Evans would not sign or write his disposi-
tion on the grievance. Dean left his work to go to Evans and ask him why he
would not write his disposition on the grievance. Evans replied that he was not
going to put his disposition on the grievance, but stated that he was going to put
a man on that job on May 31.24 On May 31 Dean ascertained that no employee had
been put on the manual work Wiest had been doing; so he went to Wiest The
latter told Dean that Evans had received orders from the office for Wiest to
continue that work. Dean then wrote another grievance slip. The steward got
Wiest's disposition and signature and then, with Fisher went to Evans who wrote
his disposition on it and signed.25 Fisher returned the grievance to Dean. Dean told
superintendent but had been given the title of assistant works manager At the same meeting
that McClellan raised this matter, he told the committee that there were too many com-
mittee members at Atlas and not enough from the Arnolt plant, and he suggested that there
be four from Arnolt and one from Atlas Dean told him that the Union would decide where
they got their committeemen . McClellan became angry, and, according to Dean, told the
latter that he was tired of Dean's running the Union and trying to run the company too.
-0 The contract provided: "The Companies agree that foremen will not be permitted to do
productive work while employed as foremen. It is understood, however, that a foreman is
permitted to work at productive work for the purpose of instructing employees, of making
samples, doing experimental work, or to meet an emergency arising while the plant is in
operation."
`i The finding is based on Dean's undenied testimony.
11 The plant rules introduced in evidence do not prohibit smoking in the rest room.
28 Wiest wrote thereon: "As foreman I have not done any packing all that I do is tape
boxes up and make out the insp. ticket."
14 The plant was closed on Memorial Day, May 30.
" This was the order of procedure under the contract . Wiest's disposition was the same as
that on the first grievance slip. Evans' disposition stated : "This is not Productive work and
is only a part time job averaging about 1 hour per day or possibly two "
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fisher that they would go right to the office to get the matter settled, and Fisher
concurred . They asked Wiest for passes to leave the plant, but Wiest refused and
referred them to Evans. Dean and Fisher punched out their time cards at about
10:30 a. in. and went to Evans' office. Evans at first refused them a pass saying
it would do them no good to go over to the Arnolt plant. Dean explained that they
had already punched out, that they had taken the grievance as far as they could
in the Atlas plant, and that the rest of the committee and main management
representatives were at the Arnolt plant. Evans then consented to giving them
passes and instructed an office employee, John Micheletti, to prepare the passes.
Michelotti did so and gave them to Dean and Fisher. As they were passing
through the guard house Michelotti called to the guard not to take up their passes
or they would not be able to get into the Arnolt plant. Dean and Fisher picked up
Marshall Griswold,26 a third of the five committeemen at his home and proceeded
to the Arnolt plant. There Dean and Fisher surrendered their passes to the guard
and entered. Griswold was employed at Arnolt, but although he had neither a pass
nor his badge he was permitted to enter. In the Arnolt plant, Dean and Fisher
went first to the North building to get committeeman Drabenstott and then
proceeded to the South building and found committeeman Harvey Headlee and
union president Ralph Thompson eating lunch. During the 15-minute lunch period27
the committee voiced affirmatively on the question of attempting to settle the
grievance at once. By that time the lunch period had ended and the committee
proceeded toward the office, but on the way there Dean noticed that Robert Green,
described by McClellan as a "shipping clerk with foreman's duty,"28 was packing
and trucking. Dean went to Troy Stamper, the department steward and told him
to stop Green from packing, sealing, and trucking Stamper spoke to Green and
reported back that Green refused to stop. Dean got out his grievance pad and
began to write another grievance slip. While he was so writing, Watkins, captain of
the guards, came to Dean, seized Dean's arm and asked him what he was doing
there. Dean explained that he was chairman of the shop committee, that he was
writing a grievance on Green, and that the committee was going to take the
grievance up with management. Watkins told Dean to get out and attempted to
eject Dean, but Dean "stood his ground," as he testified, and continued writing the
grievance slip. Watkins left and went to the office Meanwhile Dean finished writing
the grievance slip. Watkins returned and asked Fisher if he could not do anything
about Dean, and Fisher said he could not Watkins did not attempt to remove
Fisher nor tell him he should not be there Dean had just procured Green's signa-
ture and the committee had started toward the office when Personnel Director
Martin and Assistant Works Manager Brown came from the office and angrily
approached Dean. In loud voices Brown and Martin asked what right Dean had
to be in that building and told him to get out Dean said they had some grievances
to take up. Martin and Brown told him there was a regular meeting time and
accused Dean of being a Hitler and a Tojo. Then they told him to go into
Martin's office. Dean and Martin entered, the committee following, but Brown
remained outside and in voice loud enough to be heard in the office, spoke to
Watkins. Watkins told Brown that he had tried unsuccessfully to put Dean out,
and Brown told Watkins he should have used his gun and shot Dean if he would
16 Griswold was' not on duty at the time . It took about 25 minutes to find Griswol l and
bring him to the plant.
27 The lunch period was from 11 to 11 15 a. in.
2" Green attended foremen's meetings and was not eligible to vote in the election. Re-
spondents ' counsel conceded that Green was supervisory within the Board's definition of
supervisory employees excluded from the unit
ARNOLT MOTOR COMPANY 887
not leave.29 Brown then entered the office and further berated Dean for being in
the plant. Finally Martin wrote his disposition on the Wiest grievance, writing,
"This is not considered productive work by management as this only requires about
30 minutes per day "30 However, Martin refused to do anything about the Green
grievance because it had not been signed by a superintendent,31 and said that settle-
ment would have to await the return of McClellan to town. Dean and Fisher left,
drove Griswold home, and returned to the Atlas plant at 11:50 a m The gate,
which was usually open, was closed, and the guard informed them that he had
locked it on orders of Proprietor Stanley Arnolt.32 Late that afternoon Dean
telephoned Jesse Layman, international representative of the Union, in Logansport,
Indiana. Upon Layman's advice, Dean and Fisher visited Evans' home that evening
and asked him if they were discharged. He replied affirmatively and went with
them to the plant, where he gave them their checks and termination papers. Dean
and Fisher testified that their separation papers stated the cause for their discharge
as "misconduct in connection with work."33
When Layman learned that Dean and Fisher had been discharged he called the
State Department of Labor and had a representative of that department arrange
a meeting with the respondents' representatives A meeting was arranged to be
held on June 5 at the office of Everett Rasor, the respondents' local attorney The
meeting was attended by the State Labor Department representative, Layman, the
union president, the shop committee, Dean, Fisher, McClellan, Martin, and Rasor.
The respondents refused to discuss the discharges because the grievances had not
been processed in accordance with the terms of the contract Layman explained
that the Union then had no committeeman at Atlas and that it was impossible for
the committeemen from Arnolt to get into the Atlas plant The respondents still
refused to discuss the matter because the superintendent had not signed grievance
forms. One of the committeemen, Drabenstott, then went out to attempt to see
Superintendent Evans Finding Evans at home, Drabenstott had him put his disposi-
tion on the grievance form and returned to Rasor's office34 Upon receiving the
grievance forms, signed by the superintendent but not by the foreman, Rasor said
19 Brown's account of this incident differed to some degree from Dean's and Fisher's,
although he admitted having alluded to the gestapo, Hitler and Tojo. He also admitted
having spoken to Watkins and reminded him that he carried a gun, but he placed this talk
with Watkins as after Dean left the plant The undersigned was not convinced by Brown's
testimony that the order of events occurred as he related, nor was he convinced that Watkins
told him, as Brown testified, that Dean had forced an entrance into the plant. Watkins,
according to Dean and Fisher, was not in the guard house when they entered the plant, but
another guard was. Watkins did not testify. The guard on duty, according to Dean and Fisher,
accepted their passes and permitted them to enter Brown, probably intending to deny Dean's
and Fisher's testimony that he had told Watkins he should have used his gun and shot Dean
if necessary, denied saying that if he (Brown) had been Watkins he would have shot Dean.
Brown's testimony indicated that his memory was vague on details. The undersigned regards
Dean's and Fisher's account as more accurate and has based his findings thereon. Martin
had died before the time of the hearing
1s Compare this with Evans' and Wiest's disposition set forth in prior footnotes.
31 There was no one designated as superintendent in that building. Brown had been super-
intendent but was then designated assistant to the works manager. See footnote 20.
22 Arnolt testified that Martin had telephoned him (Arnolt was out of town at the time) and
told him about Dean and Fisher. Arnolt thereupon ordered their discharge.
33 The papers were not offered in evidence, but no issue was made by the respondent of
this fact.
34 On Dean's grievance Evans wrote: "This man was not discriminated against He violated
company rules and was discharged for that reason." Evans' disposition of Fisher's grievance
was identical except for the fact that the word "not" was onutted (inadvertently, the re-
spondent contended) before the word "discriminated." In view of the concluding sentence
and other evidence, the undersigned finds that the omission of the word "not" was inadvertent.
888 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
he would let the Union know in 3 or 4 days what the decision was.35 Dean and
Fisher were never offered reinstatement.
The cause of Dean's and Fisher's discharge relied upon by the respondent was
Dean 's and Fisher's entrance into the Arnolt plant without advance permission by
Martin or McClellan, and the claimed "disturbance" caused by them there. Evans'
statement on the grievance forms that Dean and Fisher were discharged for viola-
tion of company rules was not explained The employees had not been informed
that Evans could not issue a pass which would gain them entrance into the Arnolt
plant 36 The undersigned does not credit the hearsay evidence that the men forced
their way into the plant. The respondent apparently assumed that committeemen
from Atlas had no privilege of being in the Arnolt plant because the contract did
not in so many words give them that privilege 37 The undersigned does not so
understand the contract That instrument apparently contemplated meetings of the
shop committee on days other than the days for general conferences. It was
incumbent upon the respondents to afford the shop committeemen the privilege of
entering either plant for such meetings On the day of their discharge, Dean and
Fisher had a right to meet with other committeemen in the Arnolt plant. This
does not mean that the committee had the prerogative of setting the time of meet-
ing with management, but until the committee had met and decided that the matter
should be taken up with management, there was no object in asking for an appoint-
ment. Therefore, on May 31, 1944, the shop committee had the privilege of asking
for an appointment. It is true that Dean assumed in advance that the matter could
be taken up with management while he was in the Arnolt plant. Such presumption
was unwarranted , but the undersigned finds that, as the circumstances transpired,
the presumption is immaterial.
as Layman was told by the State Labor Department representative that Rasor had privately
stated that he thought he would be able to get the men back to work.
ad Brown testified that there was no such thing as a pass into the plant On r egular meeting
days, Martin met the incoming committee members and accompanied them to the meeting.
It will be remembered that, on the occasion when Dean took the grievance about the stools
to Martin, he had telephoned in advance and received permission to come over So far as
the record discloses the committee had not met with management on other than meeting days
except for the two occasions here related.
37 The pertinent provisions of the contract are
ARTICLE 2-GRIEVANCE
Section 1 . ... If a complaint arises, the department steward will first attempt to adjust
it with the foreman and if it cannot be adjusted , the Employee will then put the complaint
in writing . . . The foreman will write his disposition on the grievance form and sign his
name thereto. The grievance will then be turned over to the nearest shop committeeman.
The Committeeman and the steward involved will then attempt to settle the matter with the
plant superintendent . Then if not settled, the grievance shall be referred to the entire shop
committee . . . who shall decide whether or not the matter shall be presented to the Com-
pany . . [Italics supplied.]
Section s . If the shop committee desires to take the matter up with the management,
the management will meet with the committee and attempt to settle the grievance or
grievances.
Sectwn 3. It is understood and agreed that time spent on the adjustment of grievances
by the shop committee will be at a specific time to be agreed on from time to time by
the management and shop committee , at such time as will cause the minimum interference
with the productive functioning of the plant, and it is further agreed that members of
the shop committee will be paid for the time spent in the adjustment of grievances during
working hours at their regular rate of pay on a straight time basis, provided , however,
that a maximum of one hour may be spent for such purpose in any one day, except that
a maximum of three hours will be paid for on days upon which there is a general con-
ference of the shop committee and management.
On cross-examination Brown testified that he knew Dean and Fisher were in the
building on union business and that his objection was to their being there.
ARNOLT MOTOR COMPANY 889
Brown testified that he and Martin, returning to the plant from out of town on
May 31, 1944, were informed by the guard when they entered the guard house
that Dean and Fisher were in the plant for the purpose of settling a grievance
In view of this, in view of the time which elapsed after their entrance before
Watkins sought to eject Dean, and the further fact that Watkins made no effort
to eject Fisher, the undersigned infers that Watkins, in attempting to eject Dean,
was acting on orders of Martin or Brown. All the evidence indicates that re-
spondents' officials disliked dealing with Dean and that this dislike sprang from
the fact that Dean was an aggressive prosecutor of grievances. While it is apparent
that Dean was not a model of tact and diplomacy, it is also apparent that Dean's
determined attitude could be attributed to the respondents' disposition to dismiss
grievances without adequate consideration. This is apparent from the petty action
of Evans in taking the buffers' stools away and Martin's refusal to do anything
about it because the top officials were away; it is apparent from the fact that
Nfartin not only failed to make an investigation of the grievance concerning fore-
men working, but in his disposition, written on the grievance form, reduced
the amount of time that Wiest spent on his manual work beyond that indicated
by the superintendent; and it is apparent from other conduct which will be set
forth hereinafter in the section entitled "The refusal to bargain."
Brown testified that, when he approached Dean on the day of his discharge,
he found Dean, Fisher, the shipping clerk (Green), and several people standing
around and that there seemed to be some sort of disturbance. The only people
besides Green who were identified as standing there were members of the shop
committee, and the undersigned finds no evidence of a disturbance before Watkins
sought to eject Dean, and for such disturbance as there may then have been,
the respondent was responsible.
. The sum of the evidence convinces the undersigned, and he therefore finds,
that Paul Dean and William Fisher were discharged because of their union
membership and activity in violation of Section 8 (3) of the Act and that by such
discharge the respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
3. Troy Stamper
Troy Stamper was employed at the Arnolt plant, in June 1943, where he started
in what was known as the South building. He joined the Union in July 1943,
became a steward in September of that year, and was appointed a committeeman
soon after Dean's discharge in May 1944.
Late in January 1945, Stamper asked Plant Manager Brown for a transfer
from the South to the North building where he wished to become an automatic
screw machine operator. About 3 weeks later, when Stamper had heard nothing
from Brown about his request, he asked Brown again for a transfer, indicating
as his reason for requesting the transfer that he wished to get away from
his connection with the Union Brown told Stamper that ordinarily men were
started in the automatics as helpers (hustlers) but that they were in need of
operators in the North building and that he would transfer him. He also indicated
to Stamper that there was a good chance that Stamper could become a set-up man
In this conversation, which lasted for 30 minutes or more, Brown indicated that he
thought the Union was "through."38 The next day, February 19, 1945, Stamper
was transferred to the North building and immediately became an operator of an
automatic screw machine.
Contrary to his represented intention, Stamper did not drop out of the Union,
but as a protagonist, engaged in many discussions about the Union with his fore-
"This finding is based on Stamper's undenied testimony.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man, Jack Landis,39 and others in the department during working time. Landis'
views on the Union have already been related.
Stamper was on the shift working from 11 p. m. to 7 a m, and on the night
of May 23, 1945, he arrived at work and had just started his machine when
Landis came to him and told him he wanted him to hustle (haul shavings, oil,
materials, etc.) Ordinarily there was no regular hustler on the night shift and
Landis did most of that work himself, with the operators occasionally helping for
short periods without shutting their machines down. However, a machine had
broken down at the end of the prior shift and Landis wished to spend his time
repairing it The night operator of the broken down machine had, a week previ-
ously, received Landis' consent to being 2 or 3 hours late on May 23 to enable
him to attend a meeting in another town. When Landis told Stamper to do the
hustling, Stamper said he was not going to because he was sick and he wanted to
go home Stamper started for the door Landis followed him and told Stamper he
did not look sick. Stamper wanted to know why he should be selected rather than
someone else Landis explained that he, himself, had to fix the machine, that of
the three operators present Drabenstott had paralysis in one arm, that Stamper
and Hudson were running the same job, but that Hudson's machine was faster, and
that he therefore had decided that Stamper's machine was the one which should
be shut down He further told Stamper that he did not think he was sick and that
he would not issue a pass for him to leave. Stamper then agreed to help for a
while and did At 12 o'clock Stamper came to Landis and again asked for a pass
Landis refused to issue one. Stamper said that he had served his apprenticeship
and that he was not going to take a cut in pay. Landis explained that the assign-
ment was for that one night only, that there would be no cut in pay, and that, if
Stamper left, it would mean that he was quitting. Stamper said he hated to quit
as he had never quit a job. Landis replied that he did not have to quit, that there
was nothing wrong with Stamper's work, but that he was too busy to do the
hustling work himself. Stamper then agreed to continue for a while longer
During the next hour or so, while Landis was demonstrating to Stamper how to
work the dump truck, Stamper accidentally tripped the dump lever and spilled
the load of shavings on the ground. Landis got out, told Stamper to shovel the
shavings up, and returned to his own work. Stamper shoveled the shavings up
and shortly thereafter punched out and went home, without a pass.
On the morning of May 24, at 7 o'clock, Stamper went to the plant to see
Brown, expecting that Landis would report his leaving without a pass. Stamper
testified that he waited in the guard house for Brown to come in, that Brown came
in another entrance to the guard house and started into the plant, that Watkins,
the guard, followed Brown and told Brown about Stamper's having walked out
the previous night, that he (Stamper) overheard Brown say, "I have been waiting
for that son-of-a-bitch to stub his toe since that strike out here last fall," and
that he, himself, got to talk to Brown about 5 minutes later. Brown testified that
Stamper was waiting for him in the guard house when he arrived and that he
had a conversation with Stamper in the guard house, but he denied having made
the quoted statement. Stamper and Brown were in substantial accord as to the
remainder of the conversation. The undersigned credits Brown's denial.40 Stamper
'D Landis denied that he had had arguments with Stamper every night, as Stamper testified
The undersigned credits this denial, regarding Stamper's testimony as an exaggeration, but it
is found that some arguments did take place.
40 The Union and representatives of the respondents met with respect to Stamper's dis-
charge (hereafter related) in early June 1945, and Stamper and members of the shop com-
mittee presented evidence to the respondents' representatives . At that time Stamper did not
mention the statement above attributed to Brown. The undersigned does not believe that so
ARNOLT MOTOR COMPANY 891
explained the incident of the night before to Brown and said he supposed he was
"washed up." Brown said that he did not believe he would be dismissed but that
he wanted an opportunity to talk to the foreman and others who might know
about the incident, and he asked Stamper to return at 9 o'clock. Brown talked
to Landis and Personnel Director Thames Mauzy,41 and they decided not to take
Stamper back. At 9 o'clock Stamper returned and saw Mauzy who told him they
had decided to let him go. Mauzy gave Stamper his termination papers and check
On the report for unemployment compensation Stamper was checked on the form
as having quit voluntarily without good cause. On his statement of termination,
Stamper was shown, under the heading "Quit," as having "walked out without
authority."42
At the hearing, Stamper testified that his illness on the night of May 23 was a
headache, that he did not tell Landis the nature of his malady, but that his prior
foreman had always issued a pass when he had told him he was sick. Landis
believed that Stamper was feigning illness, and the undersigned finds that, whether
or not Stamper actually had a headache, Landis had reasonable cause for his
belief. Despite Landis' out-spoken disfavor of the Union, the undersigned finds
that, in selecting Stamper as a hustler for one night, Landis was not making a
discriminatory selection, and Landis' refusal to issue a pass to Stamper appears
likewise to have been based on circumstances occurring on the one night rather
than on anti-union prejudice. If any discrimination occurred in the treatment of
Stamper, it was in his severance when it was apparent to the respondents that he
did not wish his walking out to result in a termination of his employment. Stamper
notified Landis early on the shift that he wanted to leave. In the opinion of the
undersigned it is no greater offense to leave early without permission under a
claim of illness than to remain away from work altogether without permission.
For the latter offense the respondent Arnolt's rules provided: "Absence without
permission will automatically incur an additional two days penalty, beginning at
the time the employee reports for work. Second offense will be a penalty of an addi-
tional six days. Third offense will be subject to dismissal."43 So long as Stamper
remained in the plant he performed the work assigned Although Landis informed
Stamper that his leaving would be regarded as quitting, Stamper expressed him-
self both to Landis and Brown as not wishing to quit. Since he did not voluntarily
quit, his termination must be regarded as involuntary. So although the respondent
did not purport to discharge Stamper for either absenteeism or insubordination,44
the termination, in effect, was a discharge. The undersigned (inclining to the belief
that, if Stamper in fact had a headache, it was not one of much consequence and
his principal reason for leaving was his dislike for his temporary assignment)
vitas a fact, if true, would have been withheld in that meeting. Furthermore, if Brown had
in fact been waiting for Stamper to "stub his toe," the undersigned does not believe Brown
would have mentioned a cause for antipathy which antedated his favorable treatment of
Stamper in January 1945 but would rather have found cause in the fact that Stamper had not
dropped the Union as he said he intended to.
41 Mauzy became personnel director after Martin's death in January 1945.
42 Under "Detailed statement" on this form was, "Quit. Refused to take orders from fore-
man ; left plant without authority."
ai In the summer of 1944 Drabenstott was absent without excuse for 2 days. When he
returned, Brown gave Drabenstott a lecture but waived the penalty in view of the fact that
labor was needed. The respondent still needed men in May 1945, and, when the schools were
recessed for the summer, it hired some school children Later transfers, hereinafter related,
also indicate that the respondent needed men in the automatics department.
44 In 1944 the plant rules listed, among other causes for dismissal , "Failure to comply
with instructions of superior," and under the heading "General" the 1944 rules stated that
insubordination was a cause for immediate dismissal . These portions of the 1944 rules were
omitted, apparently intentionally, from the new rules published in January 1945.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
believes that the respondent would have been justified in disciplining Stamper. But
in view of the favorable treatment which Stamper received when he indicatd his
intention to drop the Union, the fact that Arnolt knew that Stamper had not
carried out his intention but was an outspoken advocate of the Union and a com-
mitteeman, the fact that experienced automatic screw machine operators were not
available, the fact that the plant rules do not provide for dismissal in such cases,
the fact that the respondent had expressed itself as antagonistic to the Union,
the fact that a non-union employee, Ross, had been transferred to another foreman
after he had incurred his foreman's disfavor, whereas such opportunity was not
afforded Stamper, and on all the evidence the undersigned is convinced that, absent
Stamper's union membership and activity, the respondent would have retained him
in its employ subject to a reasonable penalty. It is therefore found that by terminat-
ing Stamper's employment, Arnolt discriminated in regard to his hire and tenure
of employment in violation of Section 8 (3) of the Act, thereby interfering with,
restraining and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
4. Ralph Thompson
Ralph Thompson was employed by Atlas in March 1942 but was transferred
to Arnolt in October of that year. He joined the Union in May 1943 and became
and remained thereafter, throughout the period covered by this report, its presi-
dent. Thompson was a drill press operator until the summer of 1943 when he
became a turret lathe operator.45 At the end of 1944 he was the turret lathe
operator with the longest service on his shift.
In December 1944, Foreman Miller transferred Thompson to a drill press at
a lower rate, telling him at the time that there was no more lathe work. Thompson
testified that the next day an employee named Harris was put on the lathe that
Thompson had been operating, doing the same work that Thompson had been
doing; that Harris, although a lathe operator, had not been operating a lathe prior
to this transfer, but had been doing miscellaneous jobs. Foreman Miller testified
that on December 14, 1944, both Thompson and Harris had been doing turret lathe
work; that the order on which Thompson had been working had run out before
that on which Harris had been working; and that, when Harris' job ran out about
2 weeks later, he was transferred to miscellaneous jobs on drill press, mill, and
tapping machines. Thompson gave no testimony as to how long after his transfer
there continued to be turret lathe work, but he testified that he made no complaint
about the transfer, thinking that, because of his physical condition, he would be
just as well off on the drill press for a time. Thompson was off, ill, for 8 weeks
starting February 8, 1945. When he returned, he spent 3 weeks on inspection,
because of his physical condition, and then was returned to a turret lathe at his
former rate.
The complaint alleged that Thompson's rate of pay was decreased on or about
December 1, 1944, because of his membership in and activities on behalf of the
Union. Even crediting Thompson's testimony, as the undersigned does because
Miller's recollection did not appear to him to be very vivid,46 the evidence is inade-
quate to convince the undersigned that Thompson's transfer was for the reason
45 The rate of turret lathe operators , along with that of the automatic screw machine oper-
ators, was the highest of the operators . The only classification that received a higher rate
was that of tool and die makers.
46 Miller could not remember whether Thompson had been working on extrusions or
couplings , but he testified that Harris had been working on extrusions . If Miller could not
remember which work Thompson was on, he was not in a position to testify that the order
Thompson was working on had run out.
ARNOLT MOTOR COMPANY 893
alleged In view of Thompson' s failure to complain of his transfer , Miller was not
then called upon to explain why Thompson was not permitted to continue on the
lathe. The evidence does not establish that Miller was inclined to discriminate
against his men because of their union membership and activities,47 and the
evidence does not disclose that Miller transferred Thompson on orders from
anyone else.
In view of the evidence that the respondent usually did not reduce the rate of
pay of employees immediately when they were assigned to lower paying jobs for
what might prove to be a temporary period, Thompson might have been deprived
of 12/ cents per hour for about 2 weeks 48 If his rate was lowered at once,
'Thompson was certainly discriminated against, but, although there is some cause
for suspicion, the undersigned finds that the evidence is inadequate to prove that
the reason for such discrimination was Thompson's union membership or activities 41i
5. Harvey Headlee and Virgil Shirey
Virgil Shirey and Harvey Headlee were employed by the respondent Arnolt on
July 19 and July 22, 1943, respectively, Shirey as a lathe operator and Headlee
as a milling machine operator Both became members of the Union in 1943 Headlee
served two terms as a committeeman and one as a steward At the time of his
discharge, hereinafter related, Headlee had been a committeeman for about 5
months On May 24, 1945, Union President Ralph Thompson appointed Shirey
interim committeeman in place of Stamper, who had just been discharged 50 Some
weeks before this time, Headlee had been transferred from milling machine opera-
tion to a drill press where he worked on parts known as extrusions on the striker
line and on salvage. Shirey's work on the lathe had run out and he was trans-
ferred to miscellaneous work on a drill press 51
At about 2 o'clock on the afternoon of May 25, the day after Shirey had been
appointed committeeman, Headlee and Shirey were sent to the personnel office
by Foreman Miller. There, Mauzy told them that they were being transferred
to the automatics department on the night shift as hustlers as of 11 p m on
May 26. Headlee and Shirey claimed to have seniority in the department and
Headlee asked Mauzy why they started at the top of the seniority list instead
of at the bottom in making this transfer. Mauzy said that he had had orders to
transfer them. Shirey protested the transfer (which, he was told, would have
reduced him 12/ cents an hour) as long as there was work in his department,
unless it was on the basis of seniority. Mauzy called Brown in and they told
41 Thompson was on a turret lathe from April 1 to July 1945, continuing on that job after
ino • of the lathe operators had been transferred to the automatics because their work ran out
48 Brown testified that reduction in rates went into effect 2 weeks after transfer to a lower
paid job
44 In August 1945 Thompson was assigned to hustling duties in the automatics department
at 80 cents per hour. Mauzy testified that Thompson's rate of 921/2 cents should not have
been reduced immediately, that an error had been made in the accounting department, that
the correction had just been made, and that he had paid Thompson for the difference lost.
It is not unlikely that a similar mistake was made in December 1944
60 Thompson testified that Foreman Leon Miller was about 5 feet away at the time of this
appointment Miller denied having overheard Thompson, but lie admitted that he knew Shirey
was a member of the Union, that Headlee was a committeeman, and that Thompson was
president. Thompson testified that Shirey's appointment was made between shifts when the
machines were not operating. Under the circumstances Miller could easily have heard the
conversation.
64 At the time of their transfers Headlee's rate was reduced to the drill press rate, but
Shirey continued to receive his rate as a turret lathe operator . Brown testified when a man
was shifted from a higher rated to a lower rated lob, his rate was not changed until they were
certain that they would be kept on the lower class of woik.
11
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Headlee and Shirey that help was badly needed in the North building, that the
work there would last longer after the war than the work in the South building,
and that when there was an opening on the automatics they would have an oppor-
tunity to become automatics operators Brown also told them that it had been
the practice during the war to make automatics operators by starting men as
helpers (hustlers).52 Headlee claimed that the matter was controlled by seniority
rules, and Brown replied that insofar as the Union was concerned seniority was
plant wide and that the company could "put any employee on any job that he was
capable of doing, provided it did not penalize him from a salary or wage stand-
point "53 Brown was referring to the provisions of the original contract That
contract did not specifically provide that transfers were to be made on the basis
of seniority although it was reasonably inferable.
Headlee and Shirey said they would see Mauzy the next day, Saturday, and
returned to work. The next morning Headlee and Shirey went to see Mauzy again,
and repeated that they did not want to accept the transfer as long as it was not
on the basis of seniority, claiming that they were being discriminated against
Mauzy testified that Headlee and Shirey said they did not wish to quit and asked
why Mauzy did not lay them off and that he had replied that it would be impos-
sible to lay them off because they were short of help in the automatics department
He then testified that they asked why he did not discharge them and that he had
replied that they did not want to discharge them ; that they wanted them to work
Headlee and Shirey said they would report to their old department on Monday at
3.30 p in., when the swing shift started the following week
On Monday Headlee and Shirey reported for work at 3.30 p in Their time
cards were not in the rack. When Mauzy had noticed that Shirey and Headlee
had not punched the clock on Saturday and Sunday nights (the automatics depart-
ment being on a 7-day week) he prepared termination papers for them, and when
they came'in, he gave the papers and their checks to them. Their termination
papers did not, as in Stamper's case, state that they had quit ; they stated that they
were discharged for refusal to do the job assigned to them.
That hustlers were needed on the night shift in the automatics department is
not controverted. Nor is there any doubt but that, if the selection of Headlee and
Shirey for those jobs was non-discriminatory, Arnolt would have been justified
in taking disciplinary measures when those men refused to take the jobs assigned
to them The only issue is whether or not Headlee and Shirey were selected for
menial work because of their union membership and activities.
There were two foremen in the South building, Miller on one shift and Stumpf
on the other. Brown testified that he talked to Miller and Stumpf about trans-
ferring men to the North building and that they both protested that as they were
shorthanded in both buildings, no more than necessary should be transferred
Stumpf testified that he protested because he had given up two men about 5 weeks
previously when their work ran out .64 Miller testified that he had work that
Headlee and Shirey could have done and that he did not want to lose any men
63 This was not true in Stamper's case
63 The quotation is from Brown's testimony Headlee would not hate received a wage
reduction by the transfer, Shirey would have Although both parties alluded to the contract,
the respondent was not recognizing the Union as the bargaining agent at the time, as will
hereafter be explained On January 25, 1945, the Regional War Labor Board had directed
the parties to continue to operate under the existing contract until the terms of a new
agreement were reached. This was affirmed by the National War Labor Board early in May
At a show cause hearing before the Regional War Labor Board the respondent, Arnolt,
agreed to operate under the old agreement until a new one was negotiated.
64 One of these men had asked to be transferred . Both wanted the transfer . The respondent's
records indicated that both these men were operators in the automatic shop on May 21.
ARNOLT MOTOR COMPANY 895
The transfer of Headlee and Shirey would have left Miller with six men and
Stumpf with eight.55
Headlee was listed on the respondent's record of occupations for the week of
May 21 as on extrusion drilling. He was the only one so listed on Miller's shift
The only one so listed on Stumpf's shift was Arthur Lytle, the president of an
independent labor prganization Lytle remained on that job until the end of
hostilities on August 14, 1945. When Stamper was released, the automatics de-
partment on the night shift was left with three operators and no hustlers. On the
morning shift there were five operators and two hustlers, and on the afternoon
shift there were six operators and two hustlers 56 Under these circumstances it
would appear that the respondent would not need two hustlers on the night shift
for three operators. Obviously there was room for more operators on the night
shift if there was enough work to warrant shifting men there at all.57 While
Headlee and Shirey were told that they would have a chance to become operators
when there was an opening, they were not informed that the opening already
existed and that they would have to serve only a short training period as hustlers.
In view of the fact that Stamper served no time as hustler before he became
an operator, it may be doubted that a preliminary training period was necessary
at all Both Headlee and Shirey were expected to take an 80-cent rate. If it had
been expected that Shirey would be a hustler for only a temporary period and
if the respondent had followed its usual practice of leaving his rate uncut during
temporary shifting, Shirey would not have been expected to take a cut in pay.
The respondent adduced evidence to show that of the other men under Miller
and Stumpf most of them were either physically handicapped or indispensable
Stumpf testified that he had an able bodied man who was doing salvage work
like Headlee and Shirey but that he was going to quit when he could again receive
his truck driver's license which had been cancelled before he came to the re-
spondent Actually that man quit on August 16, 1945, when contracts were
canceled 58 A few days after Headlee and Shirey were discharged, two turret
lathe operators were transferred to the automatics department, and about 2 weeks
later two more turret lathe operators were transferred there, all when their work
rail out. On each of these occasions one of the two came from Miller's shift and
one from Stumpf's shift. Stumpf testified that he requested the first of the fore-
going on his shift to make the transfer, that the man went and talked to the
second shift foreman in the automatics for whom he had previously worked,
returned and said he would like to transfer.59 He further testified that when
The lathe work ran out on the second man in his department to be transferred,
Stumpf was told that he would be transferred and that Mauzy was going to talk
to him 60 Brown testified that all these men went to the automatics on the same
terms and conditions as were offered Headlee and Shirey. But so far as the record
discloses none of these men was reduced from their 92% cent rate.6
" A ninth quit at the end of the week of May 26.
39 In the summer of 1945 there were 7 automatic screw machines . Brown testified that there
was a shortage of labor and increased orders in the North building in May, and that the
respondent had tried unsuccessfully for some time to hire help.
5' Brown testified that they needed both operators and helpers.
SN That man was not a union member
au This man had been a union member but had not paid dues since January 1945.
eo This man was the union vice president
^i Brown first testified that he was sure that three of the four men took no cut and that
he was not sure as to the fourth. Later he testified that all four were reduced to 80 cents.
However, he subsequently was asked if this reduction was to take effect at once and he
answered in the negative , The undersigned concludes that these four men were transferred
with no change in their rate and that most of them became operators before the lapse of
2 weeks when their rate would have been cut.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no evidence as to whether any one of the four was required to do
laboring work after being transferred. They all became operators , but the evi-
dence does not disclose when 62 Since the work of the four men had run out,
there is no question but that they were properly asked to transfer. As their rate
was not reduced, however, they would have had reason to believe that there was
expectation of becoming operators in a short time . Had Shirey been told he would
not have to take a cut in pay and been given a more definite understanding that
he would become an operator as soon as he had become familiar with the machine,
his case would more nearly parallel that of those four than Headlee's as Shirey
had been doing miscellaneous work since his work on the lathe had run out But
the evidence does not indicate that Shirey was given such expectation, as he was
told his rate would be cut. Unlike the lathe operators whose work had run out,
Headlee had plenty of work ahead of him on the striker line.
In view of the fact that Headlee and Shirey were not out of work; the fact
that Stamper had received a job as automatic operator without first being classified
as hustler after he had indicated to Brown that he was abandoning the Union,
whereas Headlee and Shirey were not even given an early expectation of being
promoted from hustlers to automatic operators; the fact that, although Headlee
and Shirey were not out of work, the respondent gave no consideration to seniority,
which, contrary to Brown's testimony as to practice, was considered in the
demotion of Kinsey from operator to hustler; the fact that Headlee and Shirey
were union committeemen ;63 and the respondent's demonstrated antipathy for the
Union, the undersigned regards the demotion of Headlee and Shirey as discrim-
inatory.64 In view of Stamper' s reaction to the order to perform work as a
hustler, the respondent must have foreseen that men with Headlee's and Shirey's
seniority would, when they were not short of work, have a similar reaction. Had
the respondent genuinely desired to retain the service of all its men , as it pro-
fessed and as labor shortage at the time would normally induce it to, the respon-
dent would be expected to have made a more equitable selection, or at least to
have held out more definite prospects to the men of jobs as machine operators,
as it easily could have. All the evidence leads the undersigned to believe that the
respondent was attempting to eliminate active union members. But even if the
respondent did not select Headlee and Shirey for the hustling job for the purpose
of causing them to become discouraged and quit or to create a ground for dis-
charge, evidence was abundant that favorable treatment was meted to employees
of the respondents in the inverse ratio of their open activity on behalf of the,
Union. The undersigned therefore finds that the assignment of Headlee and Shirey
to hustling was discriminatory both in the manner of their selection and in the
disparity of encouragement between that given them and that given other trans-
ferred employees for becoming operators on the automatics Such discrimination
was the cause for the ultimate discharges of Headlee and Shirey. By such dis-
charges, therefore, the respondent has violated Section 8 (3) of the Act and
interfered with, restrained and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
62 Stumpf testified that the foi eman took a liking to Fisher and permitted him to operate a
machine for a few hours each day and he became an operator. The undersigned deduces from
scattered bits of testimony that each of the four did hustling work for a short time.
63 Headlee was known to be such, and there is reason to believe that Shirey's appointment
was known
64 Regardless of the fact that Headlee's pay would not have been reduced, he regarded the
change as a demotion . The work was of a more menial character, and the undersigned likewise
regards it as a demotion.
ARNOLT MOTOR COMPANY 897
C. The refusal to bargain collectively
1. The appropriate unit
Following a petition by the Union for determination of representatives, the
Board in Matter of Arnolt Motor Company, Inc. and S. H. Arnolt, d/b/a Atlas
Steel and Tube Company,65 on September 25, 1943, issued its Decision and Direc-
tion of Election.66 Therein the Board found that all hourly-paid production and
maintenance -employees of both companies, including inspectors, but excluding
office employees, confidential employees, timekeepers, watchmen, guards, and all
supervisory employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively recommend such
action, constituted a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
At the time of the decision, the respondents jointly occupied what is known as
the South building, Atlas leasing about 25 percent of the space there from Arnolt.
Arnolt occupied the other 75 percent of that space and all of the North building.
These buildings were surrounded by a single fence. A third building, owned by
Arnolt and located about a block west of the North building, was used as a
warehouse by both companies. The employees of both companies used the same
entrance and punched the same time clock. Arnolt furnished Atlas with electric
power, certain maintenance services, and timekeeping facilities for which Atlas
paid a fixed rent. Each company maintained its own pay roll, but employees of
one company frequently worked temporarily for the other company and a loose
system of mutual reimbursement was used. The inspectors of both companies
were interchangeable, and the guards, under common supervision, guarded the
properties of both companies Production employees of one company were fre-
quently transferred to the pay roll of the other. During slack periods at one com-
pany, its excess personnel was transferred to the other to obviate a general lay-off.
S. H. Arnolt was then the majority stockholder of Arnolt as well as the sole
owner of Atlas He had ultimate control of both companies and actively exercised
control with respect to labor policies personally and through Charles McClellan,
then works manager of both companies.
The respondents took the position that, because of certain changes which
occurred since the afore-mentioned decision, the unit of employees of both com-
panies was no longer appropriate.
As previously stated, on about April 1, 1944, Atlas moved from the South
building to space rented by it in the Arnolt owned warehouse a block away. The
latter building and the surrounding grounds continued to be used in part as a
warehouse by the two companies. Arnolt ceased to supply Atlas with electric
power, maintenance services, and timekeeping facilities. In November 1944,
McClellan ceased to be works manager for both companies and became plant man-
ager of Atlas, Brown becoming plant manager of Arnolt. On September 1, 1944,
Stanley Arnolt ceased to be the 'majority stockholder of Arnolt, but continued
to own about 40 per cent of the stock. The inspectors and other employees are no
longer interchangeable,67 and each plant has its own guards 68 Atlas rents some
equipment from Arnolt for its exclusive use.
Case No. 13-R-1897.
52 N. L. R. B. 856.
" When Arnolt laid off employees in August 1945, several of them were employed by Atlas
for a short time.
ea The Atlas guards necessarily guard the portion of the building still used by Arnolt for
warehouse purposes.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Despite these changes the companies continue to be linked by official and other
connections . Stanley Arnolt is still president of Arnolt and is a dominant figure
in the policies of both companies. Stanley Arnolt' s personal and only secretary,
Mary Meyers, is assistant secretary and a director of Arnolt. She is paid exclu-
sively by Atlas, but she has her only office in the Arnolt plant. She and Francis
Lightfoot, assistant treasurer of Arnolt, jointly sign pay-roll and other checks
for both Atlas and Arnolt on the separate bank accounts of those companies.
Lightfoot does accounting work for Atlas for which Arnolt, but not Lightfoot,
is paid.
Unable to get a separate telephone, Atlas has the benefit of Arnolt's switch-
board facilities, paying for its calls but not sharing the expense of operatoin.
The warehouse-Atlas plant is surrounded by a single fence and is guarded by
Atlas guards. Mail for both companies is picked up at the post office and delivered
to Stanley Arnolt at his Arnolt plant office. Atlas mail is relayed by anyone who
happens to be going to the Atlas plant.
In view of the foregoing and the fact that Stanley Arnolt is still in a position
to formulate labor policies of both companies, the undersigned does not regard the
physical separation of the employees of the two companies and other changes as
sufficiently material to render inappropriate the unit previously found by the Board
to be appropriate 69
In January 1945, the respondent received notice from Arnolt Employees Asso-
ciations, herein called the Association, of a claim to representation of employees at
the Arnolt plant The respondents claimed that, since employees chose to be repre-
sented in a unit of Arnolt employees only, this was additional reason for regarding
the unit of employees of both employers as inappropriate. The Association in Feb-
ruary 1945 filed a petition for investigation and certification with the Board The re-
spondent Arnolt was notified by the Board on September 4, 1945, that further pro-
ceedings in that matter did not seem warranted and that the Board refused to
issue a notice of hearing therein. The undersigned finds no merit in the contention
of the respondents.
It is accordingly found that the unit found appropriate by the Board and
hereinbefore described still constitutes a unit appropriate for the purposes of
collective bargaining within the meaning of the Act.
2 Representation by the Union of a
majority in the appropriate unit
Pursuant to the afore-mentioned Decision and Direction of Election , an election
by secret ballot was conducted on October 14, 1943, in which a majority of the
respondents' employees in the appropriate unit chose the Union as their exclusive
bargaining representative, and the Union was certified as such by the Board on
November 5, 1943. The respondents adduced no evidence sufficing to prove that
the Union's majority in the unit found appropriate had been lost.
3. The refusal to bargain
a. Bargaining relationship under
the 1944 contract
The Board's attorney contended that the respondents refused to bargain in good
faith during the term of the contract of 1944 and also refused to bargain with the
Union on the terms of a new contract at the expiration of the 1944 contract.
ea See N L R B v. Lund, 103 F (2d) 815 (C. C. A 8); Matter of The Shevlsn•Hxxon
Company, 33 N. L. R. B 368, Matter of Branick Manufacturmg Company and G E Branick
d/b/a Branick Company, 54 N L. R. B. 979; Matter of Apex Machine Company and Chscago
Metal Hose Corporation, 56 N. L. R B. 164.
ARNOLT MOTOR COMPANY 899
The evidence discloses that bargaining between the parties in 1944 was attended
by periodic expressions of resentment , irritation , petty retaliation , and instances
of obstinacy on the part of the respondents.70 Instances of the foregoing may be
found in the incidents heretofore related of Stanley Arnolt's wrath at Dean's going
to Chicago as a representative of the Union without having procured permission
even though he notified his foreman of the reason for his absence ; Evans' act
of removing the buffers' stools as retaliation for the complaint concerning the
treatment of Nevah Gross ; and Hess' refusal to have "interference' from the
Union on a grievance. In addition there were instances of the respondents' rushing
the committee in regular grievance meetings,71 evading and refusing to meet with
the Union's international representative on grievance matters when the Union
requested permission to have him present,72 and dismissing grievances with no
apparent inclination to recognize any merit in them. The respondents also refused
to discuss wage increases and wage equalizations, telling the committee that
increases were solely a function of management.73 Wage increases were granted
without discussion with the Union in August 1944, but when the Union sought
to bargain for wage increases they were told that under the WLB order they
could not grant the increases. In sum, there was considerable evidence of mere
surface bargaining, the respondents meeting with the shop committee only to
reject any consideration of its demands.
Between June and September, 1944, Layman sought, about eight times to arrange
meetings with the respondents. Each time he made the attempt by telephone he
would be told, after his name had been asked, that Arnolt, McClellan, and
Martin were out of town or could not be reached. About the end of August,
Layman received a telegram from Drabenstott that about twenty grievances had
accumulated and the employees were threatening to walk out. Layman went to
Warsaw and told the committee that before they struck they should arrange
a meeting for him with management. The committee attempted to do so but
McClellan refused to meet with Layman. After the meeting, Drabenstott tele-
phoned McClellan to try again to arrange a meeting between Layman and man-
agement. McClellan told him they had no time to meet with Layman. Layman
contacted the conciliation service and a conciliator arranged a meeting for Sep-
tember 13 at the respondents' offices. On that day, at 1 p in., the appointed time,
Layman and the committee went with the conciliator to the guard house, where
the conciliator requested the guard to tell McClellan that they were ready for
i0 The respondents contended that Dean had been obstinate. While Dean's refusal to recog-
nize the request of McClellan to substitute "personnel director" in place of "superintendent"
in the contract as the person to dispose of grievances when there ceased to be a title of
superintendent in the Arnolt plant may have been grounded on a substantial objection, still,
for want of any evidence of his reason or of a counterproposal, Dean appears on the record
to have shown an unreasonable obstinacy in the matter But the undersigned does not regard
a minor matter such as this as sufficient cause for the respondents to refuse to bargain further
as McClellan was testified by Dean to have done.
11 One instance of this occurred at a meeting between the committee and management in
August 1944. President-Proprietor Arnolt came into the meeting and asked what the com-
mittee thought it had that morning. McClellan said that the committee thought it had some
grievances. Drabenstott, chairman of the committee, told Arnolt that some of the grievances
concerned wages , some concerned plant cleanliness , and some concerned foremen doing pro-
ductive work. Arnolt replied, according to Drabenstott's undenied and credited testimony,
"Hell, . . , this committee hasn't got any grievances . . . The committee might as well get
out of here. The first thing you know the business and the Union will all be going out the
window."
''= See N. L. R. B. v. Blanton Company, 121 F. (2d) 564, 571 (C C. A 8); Matter of Ford
Motor Company, 29 N. L. R B. 873, 905, 910. The undersigned regards this conduct as a
violation of Section 8 (1) and (5) of the Act.
T' See Aluminum Ore. Co. v. N. L. R . B., 131 F. (2d) 485, 487 (C. C. A. 7).
696966-46-58
900 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
the meeting . The guard went in and returned to say that McClellan could not see
them. McClellan was visible in the office from where Layman was, and the latter
testified that McClellan stood at the window and several times looked to where
they were standing. After waiting there for an hour and a quarter, they left.
McClellan testified that the reason why he did not meet with Layman and the
conciliator was because he had turned over his former duties to Martin and that
Martin was out on business.74
b. The refusal to bargain concerning
the terms of a new contract
The 1944 contract provided for automatic renewal unless 30 days' written notice
were given of intention not to renew. On November 29, 1944, the respondents
wrote to the Union, notifying it that they intended not to continue the agreement
because the unit was no longer appropriate in view of the facts that Stanley Arnolt
was no longer the majority stockholder of Arnolt and that the employees of Atlas
had been physically separate. The letter concluded : "Consequently, it is not prac-
ticable or desirable to operate under the existing agreement after its termination
on December 31, 1944."
On the same date Layman had written the respondents that the Union did not
wish to continue under the existing contract for the following year but wished
to negotiate a new contract and requested a conference. On December 1, 1944,
Layman, having learned from the union president of the respondents' letter of
November 29, wrote to Martin as personnel director of both respondents demand-
ing that the respondents meet the Union and bargain in good faith within 5 days.
On December 6 the respondent, by a joint letter of Martin and McClellan for
the respective respondents, replied to Layman's letters of November 29 and De-
cember 1, reiterating the position taken in their letter of Novmber 29.
Prior to their letter of November 29, the respondents had not raised the unit
issue, and, although they may have found it undesirable, they had not previously
demonstrated that the unit was impracticable from their standpoint. Arnolt ceased
to be the majority stockholder on September 1, 1944, and the physical separation
of employees took place on April 1, 1944. At neither time did the respondent con-
tend that the unit ceased to be appropriate nor did it then complain of the im-
practicability of the unit.
Divorced from other facts, the respondents' raising of the issue of the appro-
priate unit might be regarded as based on a bona fide doubt. But taken in con-
junction with the respondents' demonstrated hostility to the Union, their close-
minded attitude and refusal to negotiate during the term of the contract, their
unwarranted refusal and failure to meet with the Union's international represen-
tative, the respondents' refusal to bargain concerning the terms of a new contract
appears to be designed to' discourage collective bargaining The undersigned finds
that the respondents during the term of the contract failed to bargain in good
faith and that on and after November 29, 1944, they refused to bargain in good
faith with respect to a new contract.75 The fact that another labor organization
thereafter requested recognition affords no excuse for the respondents' refusal to
bargain. The respondents' unfair labor practices may well have contributed to
any disaffection which might have occurred in the Union's ranks.
74 The business on which Martin might have been away was a ration board meeting, which
met every day from 12 to 12:30 and 2 to 2:30. The undersigned views the excuse as inade-
quate, especially since McClellan attended a later meeting with the conciliator and Layman.
73 Although the respondents agreed, about May 31, 1945, on order of the W. L B., to
continue under the terms of the old contract, they failed to negotiate concerning the terms of
a new contract and failed to meet with the Union on grievances.
ARNOLT MOTOR COMPANY 901
By the foregoing conduct, the respondents have interfered with, restrained, and
coerced their employees in the exercise of the rights guaranteed in Section 7 of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in con-
nection with the operations of the respondent described in Section I above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce. and the free flow of commerce.
V. THE REMEDY
It has been found that the respondents have engaged in certain unfair labor
practices. The undersigned will therefore recommend that they cease and desist
therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
It has been found that the respondents discriminated in regard to the hire and
tenure of employment of Paul Dean, William Fisher, Troy Stamper, Harvey
Headlee and Virgil Shirey by discharging them on the respective dates here-
tofore found. The undersigned will therefore recommend that the respondents offer
each of them immediate and full reinstatement to his former or substantially
equivalent position without prejudice to his seniority or other rights and privileges,
and that the respondents make each of them whole for any loss of pay he may
have suffered by reason of the discrimination against him by payment to each
of them of a sum of money equal to that which he normally would have earned
from the date of his discriminatory discharge to the date of the offer of rein-
statement, less his net earnings 76 during said period.
Since it has been found that the respondents did not discriminatorily discharge
William Kinsey and did not discriminatorily reduce the pay of Ralph Thompson
as alleged in the complaint, the undersigned will recommend that the complaint
be dismissed as to them.
Since it has been found that the respondents have, at various dates during the
term of the 1944 contract, and on and after November 29, 1944, failed and refused
to bargain collectively with the Union as the exclusive representative of their
employees in the appropriate unit, it will be recommended that, upon request, the
respondents bargain collectively with the Union as the exclusive representative of
their employees in the said appropriate unit.
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. International Union, United Automobile Workers of America, A. F. of L.,
is a labor organization within the meaning of Section 2 (5) of the Act.
ie 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 elsewhere 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 Com-
pany 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 r. N. L. R. B., 311 U. S. 7.
902 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
2. All hourly-paid production and maintenance employees of the respondents,
including inspectors, but excluding office employees, confidential employees, time-
keepers, watchmen, guards, and all supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute, and at all times material
herein have constituted, a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
3. International Union, United Automobile Workers of America, A. F of L,
was on October 14, 1943, and at all times thereafter has been, the exclusive rep-
resentative of all the employees in the above-described appropriate unit for the
purposes of collective bargaining within the meaning of Section 9 (a) of the Act
4. By failing to bargain in good faith during the term of the 1944 contract
and by refusing on and after November 29, 1944, to bargain in good faith with
the Union concerning the terms of a new contract, the respondents have engaged
in, and are engaging in, unfair labor practices within the meaning of Section 8 (5)
of the Act.
5. By discriminating in regard to the hire and tenure of employment of Paul
Dean, William Fisher, Troy Stamper, Harvey Headlee and Virgil Shirey, and
thereby discouraging membership in a labor organization, the respondents have
engaged in, and are engaging in, unfair labor practices within the meaning of
Section 8 (3) of the Act.
6. By interfering with, restraining, and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondents have engaged in,
and are engaging in, unfair labor practices within the meaning of Section 8 (1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The respondents have not discriminated in regard to the hire and tenure of
employment of William Kinsey and Ralph Thompson within the meaning of Section
8 (3) of the Act as alleged in the complaint.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that Arnolt Motor Company and S. H Arnolt, doing
business as Atlas Steel & Tube Company, their officers, agents, successors, and
assigns shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International Union, United Auto-
mobile Workers of America, A. F. of L., as the exclusive representative of their
employees within the unit herein found to be appropriate ;
(b) Discouraging membership in International Union, United Automobile
Workers of America, affiliated with the American Federation of Labor, or any
other labor organization of their employees, by discharging or refusing to reinstate
any of their employees, or in any other manner discriminating in regard to hire
or tenure of employment, or any term or condition of employment ;
(c) In any other manner interfering with, restraining, or coercing their
employees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist International Union, United Automobile Workers
of America, A. F. of L, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted activities
ARNOLT MOTOR COMPANY 903
for the purpose of collective bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Union, United Auto-
mobile Workers of America, A. F of L, as the exclusive representative of all
the respondents' hourly-paid production and maintenance employees , including in-
spectors, but excluding office employees, confidential employees, timekeepers , watch-
men, guards, and all supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, in respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment;
(b) Offer Paul Dean, William Fisher, Troy Stamper, Harvey Headlee,
and Virgil Shirey immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other rights and
privileges;
(c) Make whole Paul Dean, William Fisher, Troy Stamper, Harvey Headlee,
and Virgil Shirey for any loss of pay they may have suffered by reason of
the respondents' discrimination against them, by payment to each of them of a
sum of money equal to the amount each would normally have earned as wages
from the date of the discrimination to the date of the respondents' offer of
reinstatement, less their respective net earnings 77 during said period ;
(d) Post immediately at their plants in Warsaw, Indiana, copies of the
notice attached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director of the Eleventh Region (Indianapolis,
Indiana), shall, after being duly signed by the respondents' representatives, be
posted by the respondents immediately upon receipt thereof and maintained by
them for sixty (60) consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted Reasonable
steps shall be taken by the respondents to insure that said notices are not
altered, defaced, or covered by any other material;
(e) Notify the Regional Director for the Eleventh Region (Indianapolis,
Indiana), in writing within ten (10) days from the date of the receipt of this
Intermediate Report what steps the respondents have taken to comply herewith
It is further recommended that the complaint be dismissed insofar as it alleges
(1) that William Kinsey was discriminatorily discharged and (2) that the
respondents reduced the pay of Ralph Thompson because of his membership and
activity in the Union.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondents notify said Regional Director
in writing that they will comply with the foregoing recommendations, the Na-
tional Labor Relations Board issue an order requiring the respondents 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 3, as amended, effective July 12, 1944,
any party or counsel for the Board 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, Rochambeau
Building, Washington, 25, D. C., an original and four copies of a statement in
writing setting forth such exceptions to the Intermediate Report or to any other
" See footnote 76, above.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. Immediately upon the filing of such statement of exceptions and/or brief,
the party or counsel for the Board filing the same shall serve a copy thereof
upon each of the other parties and shall file a copy with the Regional Director. 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.
JAMES R. HEMINGWAY,
Trial Examiner.
Dated December 5, 1945.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations , to join or assist International Union, United Automobile
Workers of America, A F. of L., or any other labor organization, 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.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
We will bargain collectively upon request with the above-named union as
the exclusive representative of all employees in the bargaining unit described
herein with respect to rates of pay, hours of employment or other conditions
of employment, and if an understanding is reached, embody such under-
standing in a signed agreement. The bargaining unit is: All hourly-paid
production and maintenance employees of the undersigned employers, includ-
ing inspectors, but excluding office employees, confidential employees, time-
keepers, watchmen, guards, and all supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the status
of employees or effectively recommend such action.
PAUL DEAN HARVEY HEADLEE
WILLIAM FISHER VIRGIL SHIREY
TROY STAMPER
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
ARNOLT MOTOR COMPANY 905
any employee because of membership in or activity on behalf of any such labor
organization.
ARNOLT MOTOR COMPANY,
By ...........................
(Representative)
S. H. ARNOLT. Doing business as
ATLAS STEEL & TUBE COMPANY,
Employer.
By ........... ...........................
(Representative ) (Title)
Dated...
NOTE: Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.