Gates Rubber Co.

National Labor Relations Board - Board Decisions

Mar 8, 1941

30 N.L.R.B. 170 (N.L.R.B. 1941)

In the Matter of GATES RUBBER COMPANY and INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS ,`LOCAL UNION No. 68, AFFILI-
ATED WITH THE AMERICAN FEDERATION OF LABOR
Case No. C-1705.-Decided March 8, 19!1
Jurisdiction : rubber goods manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: interrogation concerning union member-
ship ; threatened lay-off if employee engaged in union "agitation"; award of
usual individual guarantee-of-work contracts to induce employees to relinquish
interest and activity in the union following lay-off of an employee who had
fostered such interest.
Discrimination: lay-off and refusal to reinstate an employee because of his union
activities.
Remedial Orders : reinstatement and back pay awarded.
Mr. Paul S. Kuelth;au and Mr. Willard Y. Morris, for the Board.
Mr. Wilbur F. Deinious, Mr. Hudson Moore, and Mr. Dayton
Denious, of Denver, Colo., for the respondent.
Mr. Herbert Jones, of Denver, Colo., for the Union.
Miss Edna Loeb, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed on December 21, 1939, by International
Brotherhood of Electrical Workers, Local Union No. 68, herein called
the Union, the National Labor Relations Board, herein called the
Board, by Charles A. Graham, Regional Director for the Twenty-
second Region (Denver, Colorado), issued its complaint, dated August
21, 1940, against Gates Rubber Company,' Denver, Colorado, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
1 Also designated The Gates Rubber Company in the record
30 N. L. R B., No. 26
170
GATES RUBBER COMPANY 171
Copies of the complaint and accompanying notice of hearing were
duly served upon the respondent aiid the Union.
The complaint alleged in substance that (1) the respondent dis-
charged John L. Ward on or about December 13, 1939, and thereafter
refused to reinstate him because he joined and-assisted the Union
and engaged in concerted activity for the purposes of collective
bargaining and other mutual aid and protection; (2) since Septem-
ber 1939 the respondent, by its officers and agents, has urged, per-
suaded, and warned its employees at its plant at Denver, Colorado,
to refrain from joining or retaining membership in the Union and
threatened said employees with discharge if they joined or assisted
this or any other labor organization or engaged in concerted activity
for the purpose of collective bargaining or other mutual aid or pro-
tection; and (3) by these and other acts, the respondent interfered
with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act.
The respondent filed an answer, dated August 30, 1940, in which
it admitted the allegations of the complaint regarding its corporate
organization and the interstate character of its business, but denied
that it had engaged in the alleged unfair labor practices. The
respondent also filed motions to make the complaint more specific
and to dismiss, in whole and in part, the complaint and the charges.
Pursuant to notice, a hearing was held on September 5 and 6, 1940,
at Denver, Colorado, before Charles E. Persons, the Trial Examiner
duly designated by the Board. The Board and the respondent Were
represented by counsel, the Union by a representative, and all par-
ticipated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on
the issues was afforded all parties. At the beginning of the hearing,
the respondent renewed its motions with respect to the charge and
the complaint and the Trial Examiner denied all the motions except
one to make one paragraph of the complaint more specific, which
motion he granted. Counsel for the Board thereupon supplied the
information required by the latter ruling= At the close of the
Board's case, counsel for the Board moved to conform the plead-
ings to the proof. This motion was, granted by the Trial Examiner.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing on motions and on objections to the admission of evi-
dence and finds that no prejudicial errors were committed. The
2 The Trial Examiner ' s ruling required that the respondent be advised as to the identity
of its officers and agents who had urged , warned, and threatened employees regarding union
affiliation or activities , and the identity of the employees so coerced Counsel for the
Board named J. C. Brown, S. E. Hemperly , and Jack Nassimbene as the respondent's agents
who had engaged in the alleged coercive activity , and John L Ward as the employee so
coerced
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed. On September 30, 1940, the respondent
filed a brief with the Trial Examiner.
On October 16, 1940, the Trial Examiner filed his Intermediate
Report, copies of which were duly served on the parties. He found
that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section
8 (1) and (3) and Section 2 (6) and (7) of the Act, and recom-
mended that the respondent cease and desist therefrom and reinstate
John L. Ward with back pay. He found further that the respondent
had not engaged in other alleged unfair labor practices, within the
meaning of Section 8 (1) of the Act, and recommended that the coin-
plaint be dismissed with respect thereto. On November 12, 1940, the
,respondent filed exceptions to the Intermediate Report and on No-
vember 18, 1940, filed a brief in support of its exceptions.
Pursuant to notice, on December 10, 1940, a hearing was held before
the Board at Washington, D. C., for the purpose of oral argument.
The respondent appeared by counsel and participated in the oral
argument. The Board has considered the exceptions and briefs of
the respondent and in so far as the exceptions are inconsistent with
,the findings, conclusions, and order below, finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Gates Rubber Company, is a Colorado corporation
'engaged in the manufacture of tires, tubes, transmission belts, and
numerous kinds of mechanical rubber goods. Its principal office and
place of business is in Denver,, Colorado, where it employs approxi-
mately 2200 hourly-paid employees. During 1939 the respondent
purchased for use in its manufacturing operations raw materials, sup-
plies, equipment, and finished products valued at approximately
$4,000,000, almost 100 per cent of which were shipped to the respond-
ent from sources outside Colorado. During the same year, the re-
spondent manufactured finished products valued at approximately
$13,000,000, of which 90 per cent were shipped to points outside
Colorado. The respondent admits that it is engaged in interstate
commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, herein called the
1. B. E. W., is a labor organization affiliated with the, American
GATES RUBBER COMPANY 173
Federation of Labor, herein called the A. F. of L. Local Union No.
68 of the I. B. E. W. is a labor organization which admits to its
membership electrical employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
Interference, restraint, coercion, and the discriminatory discharge of
John L. Ward
John L. Ward, the employee alleged in the complaint to have been
discriminatorily discharged by the respondent, came to Denver in
September 1939 from San Diego, California, where he had been a
licensed journeyman and master electrician and a member of the
I. B. E. W. Upon his arrival, Ward took all examination for a Den-
ver journeyman's license and applied for admission to the Union,
which is the I. B. E. W. local in Denver. The Union issued to him a
working permit and assured him he would thereafter be admitted
to its membership.3'
In the latter part of September Ward applied to the, respondent for
employment. In so applying he was required to fill out a printed
application card which inquired, inter alia, to what labor organiza-
tion the applicant belonged. Ward answered the question by writing
in the letters "I. B. E. W." In the absence of Jack Nassimbene,
superintendent of the respondent's machine shop and its mechanical,
maintenance, and construction department, Ward had an interview
with S. E. Hemperly; foreman, who directs and supervises the work
,of the electrical division of that department, discusses personnel
needs with Nassimbene, and has the power to discharge with the lat-
ter's permission. Ward testified that Hemperly noted his union
membership on his application card and asked him, "You are not
coming out here to organize, are you?", and when Ward replied in
the negative, warned him, "You know that you would be the first to
go if there was any agitation among the men." Hemperly denied
this testimony, but upon the basis of the entire record and his observa-
tion of the demeanor of the witnesses, the Trial Examiner did not
credit the denial. He found that Hemperly made substantially the
statements attributed to him by Ward ,4 and we concur in this finding.
Hemperly was favorably impressed by his interview with Ward, and
since the respondent needed a licensed journeyman, suggested that
after Ward secured his Denver license, he should return to see Nassim-
bene, who hired all electrical employees.
3 He was initiated therein on January 2, 1940, after the termination of his employment
N%ith the respondent.
4 The respondent did not except specifically to this finding of the Trial Examiner.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ward received his license shortly thereafter and on October 25,
1939, he applied again for employment with the respondent, filled out
another application card, again indicating union membership, and
had interviews with Nassimbene and J. C. Brown, personnel director
and one of the respondent's corporate directors. After a lengthy
conversation during which he learned of Ward's union affiliation,
Nassimbene hired Ward and sent him to the personnel office, where
he was further interviewed by Brown. The latter noted the I. B.
E. W. entry on his application card, inquired whether the organi-
zation was affiliated with the A. F. of L. or the C. I. 0., and when
Ward told him, stated to Bernice Nienke, a personnel employee, "Let
him pass. That is the way we like things; open and above board."
At this time Nienke directed Ward to fill out forms for pledging part
of his wages as a contribution to the Community Chest on an annual
basis and for joining an employees' mutual benefit club, herein called
the Benefit Cl* which collects 35 cents weekly dues from "regular"
male employees and after 30 days' membership pays benefits for
sickness, accidents, and funeral S.5 Ward offered some objection to,
making some of these commitments and Nienke replied, "You' will, of
course, be considered as a permanent employee, unless it turns out
otherwise from your references." Nienke was not employed by the
respondent at the time of the hearing and did not testify.
On October 26 Ward began to work for the respondent at 70 cents
per hour and on October 30 his wages were increased to 75 cents per
hour.' At this time there were 12 other employees in the electrical
division, including. Foreman. Hemperly, and none of them was a
member of the Union. Ward. did not engage in any organizational
activity among them at the outset but informed them that he had
been an I. B. E. W. member and that the Union had promised to
admit him to membership. On or about November 15 three electrical
employees asked him how to join the Union. He replied that he was
not there to organize them but advised them to take the matter up
with Herbert Jones, the Union's business agent. Toward the end
of the month Jones informed Ward that the Union would admit the
respondent's electrical employees to membership. Thereafter Ward
discussed the matter openly with the workers at the plant, during
and outside working hours, and arranged for all of them except
Hemperly, to attend a meeting at union headquarters on December
14. On December 13 William DeWitt, one of the workers, ap-
proached Ward "in considerable agitation" and stated that he would
not attend the meeting because he did not want to jeopardize his $150
Christmas bonus from the respondent. Ward sought to persuade
5 The respondent's application form contains spaces for the Community Chest pledge and
Benefit Club membership.
GATES RUBBER COMPANY, 175
him to change his mind with assurances that he need not join the
Union but DeWitt persisted in his refusal. Thereupon, "largely for
the sake of Mr. DeWitt," Ward called off the meeting, telling the
men, "If you want to join the Union, there is nothing-to hold you
back. I have made my move and this is all there is to it."
On the same day Hemperly called Ward from his work,and laid
him off, allegedly because of delay in the shipment of equipment
which was in the process of being installed. Ward inquired how long
this lay-off would last and Hemperly replied that it would depend
upon the receipt of the equipment, that he should get in touch with
Hemperly about the middle of January 1940. After working hours
that day Ward visited Nassimbene to find out whether his lay-off was
caused by his union activities. Regarding this interview Ward testi-
fied without contradiction, and we find, that the following occurred :
A. When I brought up the matter of Union activity Mr. Nas-
simbene said "I am surprised you would cause me this trouble."
Q. Do you remember those words?
A. I remember those words.
I said, "Mr. Nassimbene, you would not call it `making trouble'
to get men admitted into Local No. 68 [the Union], which is a
closed Local, and where many men would give a great deal-a
good deal to join. It would be a benefit to the company and the
men."
He again repeated to me the words, "I am surprised you would
cause me trouble." But he did not commit himself as to what
the trouble referred to was.
Nassimbene also told Ward that his "service and ability were entirely
satisfactory and the only reason for [his] lay-off was that it was
necessary to cut down on the pay roll. and that [he] was the newest
employee in the electric department." ' At the hearing Nassimbene
did not explain his above reference to "trouble." '
On December 15, two days' after Ward's lay-off, the respondent
gave to three electrical workers, Raymond Hobbs, Victor Quist, and
Lawrence Miller, individual contracts guaranteeing each of them a
certain amount of work in the following year unless operations were
curtailed because of. "labor troubles" or for other specified causes.
When Hobbs received his contract, Personnel Director Brown spoke
with him about how he liked working for the respondent and inquired
whether he was "satisfied," whether any of the employees had joined
the Union, and how union wages compared. with the wages paid by
the respondent. Brown did not deny making the above inquiries.
This award of contracts is discussed below in further detail.
1i F DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, Ward had several conferences with Brown about his,
lay-off and possible reemployment but to no avail. He visited Brown
first on or about December 18 and indicated that he felt that he had
been laid off because of his union activity. Brown denied that such
was the case, stating that he was laid off only because of a reduction
in force, that his services had been entirely satisfactory, and that he
was eligible for reemployment. Brown stated further that the re-
spondent had union officers among its employees and when Ward
asked how he knew that, replied, "Well, they are men who have the
company's interest at • heart, and they come in and tell me these
things." Ward inquired as to the type of man who would "rat" on
his fellow workers and Brown repeated, in substance, "They have
the company's interest at heart." Brown assured Ward that neither
he, Hemperly, or Nassimbene had known of his organizing activity.
Ward stated that he was going to refer the matter to the National
Labor Relations Board and Brown agreed that he should do so.
Brown did not controvert the above. On December 21 the Union
filed with the Regional Director charges that Ward had been
discriminatorily discharged by the respondent.
Despite the respondent's assurances to Ward and its assertion at
the hearing that Ward was eligible for rehiring, the respondent has
never offered Ward reinstatement to, electrical work, which he de-
sired to do and for which he was trained. Sometime after his lay-off,
it,offered him the opportunity of entering a 6 months' training course
to become a salesman of the respondent's products, but Ward declined
this offbr because it required traveling widely outside Colorado,
where he wished to live .6
The respondent denies that Ward was laid off because of his union
activity, as alleged in the complaint, and contends that a reduction in
force necessitated his lay-off. At the outset it should be noted that
Ward's work was admittedly satisfactory 7 and that he was well
qualified therefor. Brown testified that he felt Ward to be "a hell
of a good man" with "very fine" background and training.s The re-
spondent's version of Ward's employment and lay-off is as follows
Ward was hired temporarily as extra help to assist in the preparation
At the heai ing Ward 'testified that he would not accept any job other than that of an
electrician because he did not desire to relinquish his trade and experience
7 At the time of Ward's lay-off, Foreman IIemperly enteied on his service card that with,
regard to general attitude , quality of work, speed, adaptability and orderliness . Ward's
work was "0 K, fair"; "0. K., good." as to dependability, steadiness, and general intelli-
gence ; and "fair" as to cooperative spirit Hemperly also indicated on this card that in.
his opinion Waid required supervision . Nassimbene testified that Ward 's work was "fair"
lie added that he had never criticized Ward ' s work directly, recognizing that since he was
a new employee there was a "chance for improvement."
8 Ward had i years' college training in electrical engmeerina, lacked only 1 year's study
to secure a degree therein , had about 10 years' experience asp an electrical worker, and had?
been licensed as a journeyman and master electrician.
GATES RUBBER COMPANY 177
for and installation of a great deal of new equipment which was
expected to arrive in the latter part of November and middle of
December; late in November and early in December manufacturers
advised the respondent of delays in shipment of the equipment;
Nassimbene discussed with Hemperly the fact that the installation
work would consequently be spread over a period of months and de-
cided that the regular electrical crew could handle it without ad-
ditional help; and Nassimbene therefore directed Ward's lay-off,
both because he had been hired temporarily for the specific rush of
work which did not materialize and because as the most recently hired
electrical employee, he was the appropriate person to lay off in a
staff reduction. The respondent denies having had any knowledge
of Ward's union activities prior to the lay-off. 'The Trial Examiner
did not credit the above denial of knowledge or explanation of Ward's
lay-off, and our consideration of all the evidence leads us to believe
that the respondent was aware and disapproved by Ward's organiza^-
tional efforts and laid him off, because of such union activity.
In the first place we do not believe that Ward was in fact hired
only temporarily for the alleged specific purpose. Both Nassimbene
and Brown testified that at the time of Ward's employment they told
him that he was being hired on a temporary basis and explained
that the respondent needed temporary or extra help for installation
of the new equipment. It appears, however, that all the respondent's
new employees are nominally considered temporary employees. No
definite probationary period is set at the end of which they graduate
from their so-called temporary status, and Brown testified generally
that an employee might consider his job "fixed" when he had demon-
strated his ability and avoided lay-off through two slack seasons.
From the indefinite tenor of this evidence it is apparent end we find
that the respondent's characterization of Ward as a temporary em-
ployee did not of itself place him in any unusual or separate category
different from that of other new employees.
Moreover, Ward testified that he was led to believe his employment
permanent, that in his interview v. ith Nassimbene "there wasn't the
slightest hint of [his] job being temporary." and testified further
without contradiction. "Nassimbene outlined to me the benefits that
accrued to an employee with various years of experience. He went,
into detail, from two to six years, and we parted with an atmosphere
of permanent agreement." This testimony of Ward is supported and
corroborated by the assurance of permanent employment made to him
by Nienke, a personnel employee. We think it clear that by this
assurance Nienke meant, and Ward understood her to mean, that he
was not hired for a specific, temporary job. Ward's testimony is
further corroborated by Nienke's direction that he join the Benefit
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Club which entitles an employee to insurance benefits only after a
month's membership. If it were true, as Personnel Director Brown,
testified , that Ward was expected to be employed for less than six
weeks, we do not believe that Ward would have been asked to join
and pay weekly dues to an organization from which he could not
hope to derive insurance protection for a period of more than a week
or two, apparantly not commensurate with his investment therein.
The respondent's alleged specific purpose in hiring Ward is rendered
more incredible by inconsistent testimony by Director Brown and
Nassimbene, head of Ward's department. As noted above, Brown in-
dicated that Ward was expected to be employed for less than six
weeks, stating that he was surprised Ward's work lasted 6 weeks
or as long as , it did. • On the other hand, Nassimbene 's testimony in-
dicates that but for the unexpected delays in shipment of new equip-
ment, the work for which Ward was hired would have been in full
swing on December 13, the date of the lay-off, and that Ward would
have continued in the respondent 's employ for an indefinite time pre-
paring for and assisting in the installation of such equipment. These
inconsistent estimates of the intended length of Ward's employment
further impair the credibility of the respondent's defense. Moreover,
although Nassimbene testified that his purpose in hiring Ward prior
to the arrival of the new equipment was to have him lay the ground
work for its installation , it appears and we find that during his em-
ployment Ward was assigned at least in part to work having no
relation to the new machinery.
Upon all the evidence, including Ward's testimony that he was led
to believe his employment permanent , his denial that Nassimbene
indicated that his employment was to be temporary, Nassimbene's
description to him of benefits accruing to employees after several
years' service , Nienke's assurance to Ward of permanent employment,
the fact that Nienke encouraged Ward to join the Benefit Club which
required dues payments and from which he could derive neither
protection nor benefits for a month 's time, the inconsistent testimony
of Brown and Nassimbene , and the fact that at least part of Ward's
work was unrelated to that for which he was allegedly hired, we find
that Ward was not hired temporarily for specific work.
In the second place it appears and we find that lack of work did
not require Ward's lay -off at the time the lay-off was effected. When
Ward was terminated , he was "right in the middle" of an electrical
job which had been assigned "in full" to him, the completion of which
would have required - at least another two weeks ' work. He testified
without contradiction and we find that all the other electrical em-
ployees were busy at that time. The respondent showed that the elec-
trical employees ' total hours of work decreased between the weeks
GATES RUBBER COMPANY 179
ending December 9, 1939, and January 6, 1940,11 and Hemperly tes-
tified that the pressure of work began to decrease on or about Decem-
ber -10,-,1939. The respondent failed to indicate the number of hours
worked during the week of Ward's release, however, or to show that
work ' actually slackened in that week. Moreover, as' the Trial Ex-
aminer correctly found, the decline in hours is not necessarily, signifi-
cant and may be accounted for at least in part by factors other than
lack of work, namely, Ward's lay-off, the week's illness of another
employee, and the effects of the Christmas and New Year holidays.
Furthermore, the respondent offers a confused and inconsistent ex-
planation of why Ward was the employee chosen for lay-off pursuant
to the alleged reduction in force. We have already found without
merit its attempted justification therefor on the ground that Ward
was hired 'only temporarily for a specific purpose. The respondent
does not expressly, contend that Ward was chosen for the lay-off be-
cause he was junior in service to all other electrical employees but
implied that this was so in the statement of Nassimbene to Ward after
the lay,-pfF, and -in the testimony of Foreman Hemperly that it is the
respondent's policy to follow seniority strictly. Inconsistent with
Hemperly's testimony is the vague and contradictory testimony of
his superior officer Brown, who as personnel manager and a director
of the respondent, the Trial Examiner correctly stated, "must be
understood to be cognizant of the respondent's labor policies." Brown
testified as follows :
Q. [by Board counsel] * * * Is that correct [that the re-
spondent follows a policy of seniority] * * * in laying off
its employees?
A,, [by Brown] I think you can answer it yes or no. The
qualifications of the 'man is the first consideration.
Q. And you say that qualifications are a more important factor
than seniority?
A. We have no company policy on it?
Q. You have no company policy on that?
A. No. That is entirely up to the supervisor and the depart-
ment he works in, and I think they do give a consideration-lots
of them do.
° The respondent introduced the following chart shoeing the total number of hours
worked for the 3 weeks prior , and the 3 weeks subsequent , to the week during which Ward
was term inatied
Week ending: , FF6ur8 , i&orked Weekending: Flour8 worked
November 25, 1939 ----------- 5110 6 December 23, 1939 - ---------- 471 5
December 2, 1939 - ------------- 497 8 December 30, 1939 - ---------- 408 5
December 9, 1939 --- ---------- 547 0 January 6, 1940_____________ 400 7
1,555 4 1,280 7
440135-42-Vol 30-13
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown admitted that Ward was better qualified and trained to do ,
electrical work than the non-journeyman -electricians employed in the,'
electrical' department, that the latter "are the ones coming up . . .
trying to become journeymen-nzen who have not qualified yet." The
record shows that four of the eight non-journeymen then employed
failed to pass the Denver licensing examination for journeymen which
Ward passed.'° When asked if he had not testified that "qualifications
would be probably the primary consideration in laying off a man,"
Brown replied, "Yes. But you have to also take into consideration
the earnings per hour. A journeyman gets fifteen or twenty cents an
hour more than an assistant." The record discloses, however, that this
is not uniformly true and that non-journeymen in the respondent's
electrical department have earned 70, 72, 73, and 77 cents per hour
as compared with Ward's initial wages of 70 cents and final wages
of only 75 cents per hour.11 Three of the eight non-journeymen em-
ployed at the time of Ward's lay-off, all three of whom had failed
to pass the journeyman's examination, earned 68, 70, and 77 cents
per hour,12 which is clearly not as great a wage differential-as that
asserted by Brown.13
Thus Brown first answered "yes or no" to the question of whether
the respondent observed seniority in making lay-offs, then asserted
that "qualifications" were of primary importance, retracted that as-
.sertion by stating that the respondent had no policy, on it, testified
vaguely that "that" is left entirely in the discretion of departmental
supervisors, some of whom he thought gave consideration to these mat-
ters, again admitted that qualifications would probably be considered
primarily in laying off employees, stated varyingly that hourly earn-
ings had to be taken into consideration, and asserted finally that there
was a great wage differential between journeymen and non-journey-
lnen, which the record shows was not true in a, number of cases.
We can place little credence in such inconsistent explanations of the
respondent's method of selecting Ward for lay-off.
10 Fred Rankin , a licensed electrician , was asked if a man could be a good ' electrician
although he did not have a journeyman ' s license and -he replied . "A man that is an elec-
trician, should be able to pass a journeyman ' s-examination . I- think a man who calls
himself an electrician should be able to pass a practical examination , such as we have here "
11 N. M. narrang, employed subsequent to Ward's 1ev-off earned 73 cents per hour. About
two cents of this may have been attributable to the fact that he worked on the night shift,
for night shift employees generally received a little higher wages than those on the day
shift Charles Zarker earned 77 cents per, hour as'nigbt shift maintenance mail, _for which;
Position Ward was qualified. nemperly testified without explanation , that licensed 5eleetri-
clans do maintenance work only in case of an emorgencl . It appears that they also do it
during slack periods.
12 R S Barnes and Clifford Weiss received 2 and 3 cent per hour increases in the week of
the lay -off, bringing their respective 'r ages to 68 and 70 cents It appears that Barnet-
was subsequently increased to 72 cents -
13Moeouer , most of the non -lourneymen had little more seniority than Ward, one of
them having been hired in September 1939 , others in Maich , Mai, July , and August 1939
GATES'RUBBER -'COMPANY 181
The 'respondent's subsequent additions, to the staff of its electrical
department indicate that it continued to exclude Ward therefrom
without regard for its expressed policy of recalling laid-off' em-
ployees when work increases or for its assurance to' Ward of recall,
which conduct reflects the respondent's motive inlaying him off: The
record shows that starting in December 1939 and continuing for
from four to six months thereafter, the respondent engaged in con-
siderable construction work, apparently ' under the jurisdiction of
Nassimbene's department, and between February and June 1940 .in-
stalled a considerable amount of new equipment entailing electrical
work. Although the delay in shipment of the equipment apparently
spread the work over a period of months, lessening the .anticipated
pressure of work, it nevertheless appears that during this period the
respondent required extra help in its electrical department. "It is true
that the respondent hired no journeyman electrician to replace Ward,
but while refusing to reinstate Ward on the ground that it did not re-
quire his services, the respondent secured extra help in the electric shop
by transferring there seven non-journeymen employees employed at
other operations in the machine-shop and maintenance department,
namely, Arthur Burgesser, N. M. Harrang, Cleo Owens, George Mo-
sier, Robert Paugh, James Todd, and one Clark." From the latter part
of January or February 1940, these men were periodically transferred
to the electric shop, apparently spending about half their time there.
From Hemperly's testimony we find that starting in about March 1940,
at least four of them, Burgesser, Harrang, Owens, and Mosier, spent
all their time on electrical work, and that they were so engaged at the
time of the hearing. The discriminatory character of the respondent's
refusal to reinstate Ward is evidenced by the fact that Burgesses.
Todd, and Harrang were hired' in February 1940, subsequent to Ward's
release and refusal of reemployment,' and were assigned to electrical
work shortly thereafter. Moreover, Harrang, -,w ho' failed' to pass the
Denver journeyman's licensing examination, was put in''charge of the
night electrical shift and was given wages of 73 cents per hour, only
2 cents less than Ward received.15 Hemperly testified that the'trans-
ferrees'were not assigned to work 'on the' new equipment and-
.
that they
did work not required by law to be supervised by a journeyman.
"Clark as given , a'guarantee of work contract on January 5, 1940 The record does
not reveal the circumstances surrounding , this award and we-make no finding , regarding it
Harrang was hired at wages of 65 cents and was increased to 70 cents and then to
73 cents.
Clark's wages do not appear in the record but the wages of the other five transferees
were as follows • '
Burgesser , 65 cents per hour..
Owens, 50 cents per hour
Mosier , 60 cents or 65 cents per hour
Pangh, 58 cents per hour.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Their work was admittedly electrical work which journeymen are
qualified to perform,, however, and some of it was new construction
work, namely, "running in" conduits for "main feeder lines" of various
departments. Moreover, at the time of the hearing Harrang was
t'
I
"running feeders," the` same type of work which Ward was 'doing
when laid off. ' From all the testimony,, we find that journeyman and
non-journeyman electricians in the respondent's electrical department
do much the same kind of work interchangeably.
All the circumstances lead to the conclusion that while the respond-
ent. was rejecting Ward's repeated applications for employment,, it
was actually in need of additional skilled electrical force, and that
since the hiring of a new journeyman electrician would have disclosed
the discriminatory character of Ward's exclusion, it obviated such a
disclosure by hiring. and transferring to the electrical department a
number of non-licensed workers with some electrical experience,
to perform some new construction work and much, of the routine
work,, thus permitting the four journeymen to devote more time to
new installations and other plant alterations.
-We find no merit to the respondent's further contention that it was
unaware of Ward's union activities prior to his lay-off. Nassimbene's
expression of regret at Ward's causing "trouble," upon Ward's men-
tion of union activities, is in our opinion a clear indication of prior
knowledge thereof on the part of Nassimbene, the man apparently
responsible for Ward's hiring and -release. This conclusion is
strengthened by the fact that Nassimbene did not explain this refer-
ence, to "trouble." Moreover,, Ward's union activities were open- and
unconcealed; and in this connection we may note again Brown's
statements that he is kept posted regarding certain union matters by
employees who, have the respondent's interest at heart. Foreman
H'emperly also admitted being furnished with similar information
periodically;, and indicated his knowledge in this regard by testifying
that there were no union, members in the. electric shop. When counsel
for the Board asked him whether he excluded then therefrom, he
replied, "Not necessarily." ,
That, the. respondent actually, had Ward's organizational activities
in, mind, in, laying him off and, refusing to reinstate him is further,
shown by the award of individual contracts to electrical workers two
days after' the, lay-off, together with Brown's inquiries of Hobbs re-
9'ard'ing, his satisfaction, with his jpb, and regarding the Union.
These individual contracts are not alleged to be illegal in themselves
but "the 'circumstances surrounding their award iiidi•cate that the
respondent offered them to the three electrical employees at this time
in order to induce them to relinquish interest and activity in, the
Union, which interest had been fostered by Ward. Brown' denied
GATES RUBBER . COMPANY 183
that,the contracts were awarded for any such purpose. He testified
that since 1936 or 1937 it had been the respondent's custom to offer
such contracts autoinatictilly to employees upon their completion of 3
years' continuous service, that about 1,000 of the 2,200 hourly-paid em-
ployees had such contracts, that the 3 electrical employees had served
the required period, and that 15 non-electrical employees received like
contracts on the same date as the electrical workers. The case of
Henry Grady Sanders, a former employee of the respondent, casts
serious doubt' on Brown's denial and on the alleged automatic practice
of offering such contracts. Sanders, who was employed by the re-
spondent for about 61/ years between 1933 and December 1939, testi-
fied without contradiction that he and other employees who were active
in a rubber workers' union were not offered contracts despite their
completion of more than 3 years' employment. The respondent offered
no explanation of this apparent deviation from its alleged practice.
Moreover, Quist and Miller became eligible for contracts in July 1939,
Hobbs in September 1939, and yet they were not offered contracts until
December, after the above union activity had commenced in the elec-
trical department.- This lapse of several months does not{ appear
consistent with the respondent's alleged practice 1i and the respondent
did not attempt to reconcile it therewith.
Although the respondent may actually have contemplated some
reduction in staff as a result of shipping delays, nevertheless, in
view of Hemperly's inquiry, before Ward was hired, as to whether
Ward intended to organize the employees and his threat that Ward
would be laid off if he engaged in union "agitation," the fact that
Ward's lay-off was effected just after his attempt to do just what
he had been cautioned not to do, namely, to organize and hold a
union meeting, and the fact that he eras laid off in the middle of
a job at a time when other electrical employees were busy, convince
19 Quist and Miller were hired in July, 1936, Hobbs in September 1936, and counsel for
the respondent admitted at the hearing that the respondent had introduced no evidence to
show that the service of the three employees was not continuous from the dates of their
hiring Its failure to make any such showing fiom employment iecords in its possession
convinces us, and we find , that the service of the three men was coiitinuous ,' rendering them
eligible for contracts in July and September 1939 as stated above
17 Brown testified that contracts are offered as follows when the pay-roll department
records show that an employee has completed three years continuous service, that depart-
ment notifies the personnel office under Brown , that the employee is entitled to a contract
Brown ' s office relays this information to the foreman of the employee ' s department with
instructions to tell the man that lie may make an appointment with the personnel office for
securing a contract on any one of two or three afternoons a week designated for this pur-
pose Although-Brown is in charge of the award of contracts and sees and talks with the
numerous men who come in for them , apparently every week, he was unable to estimate
how long after the expiration of his three -year term an employee customarily , received his
contract offer In the absence of such an estimate or any other explanation by the respond-
ent, we do not see why it should require several months for the transmission of an offer as
outlined above , and consequently, find that no such period " is required.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
us that such union activities were the operative cause of Ward's-
lay-off. This conclusion is strengthened by the interrogation re-
garding union affiliation on the respondent's application cards;
Brown's inquiry concerning and interest in the union affiliation of the
I. B. E. W.; the respondent's inconsistent and unconvincing explan-
ations of Ward's lay-off and of the reasons for his selection therefor;
Nassimbene's deprecation of Ward's causing him "trouble," uttered
on the 'day of the lay-off and upon Ward's mention of his union ac-
tivity; ;Nassimbene's failure to explain this statement; the circum-
stances surrounding the award of contracts to electrical workers
shortly, after the lay-off; and Brown's union inquiries at that time.
Our conclusion is also corroborated by,the fact that despite the respond-
ent's admitted policy of recalling, laid-off employees when 'work in-
creases, and despite the assurance to Ward that he was eligible for
reinstatement, that he should inquire about work in January 1940, and
that the respondent would notify him of any job vacancies, the re-
spondent failed and refused to reinstate Ward but instead hired new
employees and transferred them and other employees to electrical work
for which Ward was better qualified than they. Upon all the evidence,
and in accord with the Trial Examiner's finding, we find that the re-
spondent laid off and refused to reinstate Ward to electrical work
because of his union activities.
We find that the respondent terminated John L. Ward's employ-
ment on December 13, 1939, and thereafter refused to reinstate him
because of his union activities, thereby discriminating in regard to
hire and tenure of employment and discouraging membership in the
Union, and that by this and other conduct described above, the respond-
ent interfered with, restrained, and coerced its employees in the
exercise of the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their
own choosing, and- to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, as guaran-
teed in Section 7 of the Act.
Subsequent to his lay-off, Ward was employed for ten days between
December 25, 1939,,and January 10, 1940, by the Interstate Electric
Company, Boulder, 'Colorado, in which employment he earned $120.
He worked for an electrical contractor periodically between March
7 and 12, 1940, earning $28.50. On April 17 and 18, 1940, he worked
for the Reliable Electric Company, Denver, Colorado, earning $18.
He received $240 unemployment compensation from the State of Cal-
ifornia. At the time of the hearing he was working for the Warner
Construction Company at the Green Mountain Dam, located more than
100 miles from his home in Denver. He began work there on May-
i
GATES RUBBER COMPANY 185
20, 1940, and by September 5, 1940, his gross earnings amounted to
$770. This job was seasonal, discontinuing at the commencement of
the winter, and it cost him about $2 a day to live on the job, $1,a day
more than in Denver. Moreover, he had additional expenses for
daily transportation to the Green Mountain Dani, and in poor weather
it was 'difficult for him to go to work. He testified that he desired
reinstatement with the respondent in its electrical department.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, oc-
curring in connection with the operations of the respondent described
in Section I above, have a close, intimate and substantial relation to
trade, traffic, and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and
to take certain affirmative action in order to effectuate the policies
of the Act, and to restore as nearly as possible the conditions which
existed prior to the commission of the unfair labor practices.
Since we have found that the respondent discriminated against
John L. Ward in regard to hire and tenure of employment, we shall
order the respondent to offer to him immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority and other rights and privileges, and to make him whole
for any loss of pay he has suffered by reason of the discrimination
against him by payment to him of a sum equal to the amount which
he would normally have earned as wages from December 13, 1939,
the date of the respondent's discrimination against him, to the date
of the offer of, reinstatement, less his net earnings 18 during said
period.
Upon the basis of the findings of fact and upon the entire record
in the case, the Board makes the following :
"By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge or the unlawful refusal of employment to him and the consequent necessity of
his seeking employment elsewhere . See Matter of Crossett Lumber Company and United
Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union,
Local 2590, 8 N. L„ R . B. 440. Monies received for work performed upon Federal , State,
county, municipal or other work -relief projects shall be considered as earnings. See
Republic Steel Corporation V. National Labor Relations Board, 311 U. S. 7.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW -
1. International Brotherhood of Electrical Workers, Local Union
No. 68, affiliated with the American Federation of Labor, is a labor
organization, within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment
of John L. Ward and thereby discouraging membership in a labor
organization, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its "employees, in
the exercise of rights guaranteed in Section 7 of the Act, the respond-
ent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board orders that the respondent,
Gates Rubber Company, Denver, Colorado, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Electrical Workers, Local Union No. 68, affiliated with the American
Federation of Labor, or any other labor organization of its em-
ployees, by discharging, laying off, or failing or refusing to reinstate
any of its employees or in any other manner discriminating in
regard to their hire and tenure of employment or any term or
condition of their employment, because of their membership or ac-
tivity in International Brotherhood of Electrical Workers, Local
Union No. 68, affiliated with the American Federation, of Labor,
or any other labor organization of its employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their choosing, and to engage, in con-
certed 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 National Labor
Relations Board finds will effectuate the policies of the National
Labor Relations Act :
GATES RUBBER COMPANY 187
(a) Offer to John L. Ward immediate and full reinstatement to
his former or substantially equivalent position without prejudice to
his seniority and other rights and privileges; and make him whole
for any loss of pay he has suffered by reason of the discrimination
against him by payment to him of a sum of money equal to that
which he would normally have earned as wages from December 13,
1939, the date of the discrimination against him, to the date of the
offer of reinstatement, less his net earnings 19 during said period;
(b) Immediately post in conspicuous places throughout its
plant, and maintain for a period of at least sixty (60) consecutive
days from the date of posting, notices to its employees stating: (1)
that the respondent will not engage in the activity from which it is
ordered to cease and desist in paragraphs 1 (a) and (b) of this
Order; (2) that the respondent will take the affirmative action set
forth in paragraph 2 (a) of this Order; and (3) that the respond-
ent's employees.- are free to become or remain members of Inter-
national Brotherhood of Electrical Workers, Local Union No. 68,
affiliated with the American Federation of Labor, and the respond-
ent will. not discriminate against any employee because of mem-
bership or activity in that organizatibn;
(c) Notify the Regional Director for the Twenty-second Region
in writing within ten (10) days from the date of this, Order, what
steps the respondent has taken to comply herewith.
CHAIRMAN HARRY A. MILLIS =took no part in the consideration of
the above Decision and Order.
19 See footnote 18, supra.