Goshen Rubber and Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 28, 1939

11 N.L.R.B. 1346 (N.L.R.B. 1939)

In the Matter of GOSHEN RUBBER AND MANUFACTURING COMPANY and
UNITED RUBBER WORKERS OF AMERICA, LOCAL #124
Case No. C-604-Decided March, 08, 1,939
Molded Rubber Goods Manufacturing Industry-Interference, Restraint, and
Coercion : permitting and assisting in the circulation of anti -union petition on
company time and property ; posting on bulletin board literature misrepresenting
terms and purposes of the Act to employees ; participating through supervisory
employee in the introduction of a labor organization into the plant ; responsibility
of respondent for the acts of its supervisory employees ; engendering fear or loss
of employment for union membership and activity-Discrimination : discharges :
for union membership and activity and for concerted activity ; charges of, not
sustained as to one employee-Reinstatement Ordered: discharged employees-
Back Pay: awarded.
Mr. Jack G. Evans, for the Board.
Mr. Henry E. Vernon and Mr. George L. Pepple, of Goshen, Ind.,
for the respondent.
Mr. Raymond Hoffman, of Goshen, Ind., for the United.
Mr. Guy Farmer, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Rubber
Workers of America, Local #124, herein called the United, the Na-
tional Labor Relations Board, herein called the Board, by Leonard C.
Bajork, Regional Director for the Thirteenth Region (Chicago, Illi-
nois), issued its complaint, dated February 16, 1938, against Goshen
Rubber and Manufacturing Company, Goshen, Indiana, herein called
the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section 8 (1)
and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act.
In respect to the unfair labor practices, the complaint alleged, in
substance, (1) that the respondent had interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed by Section
7 of the Act, by making derogatory statements to employees concern-
11 N. L. R. B., No. 121.
1346
GOSHEN RUBBER AND MANTJE'ACTURING COMPANY ET AL. 1347
ing the United, by advising, urging, and warning its employees to
refrain from becoming or remaining members of the United, and by
other acts; and (2) that the respondent had discouraged membership
in the United and interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed them by Section 7 of the Act,
by discharging Merle Armstrong, Lyle Armstrong, and Raymond
Hoffman, and by demoting Harvey Hively to a position which forced
him to resign, because they and each of them joined and assisted the
United and engaged in concerted activities for the purpose of collective
bargaining and other mutual aid and protection. Copies of the com-
plaint, accompanied by notice of hearing, were duly served upon the
respondent and the United. The respondent duly filed its answer ad-
mitting the allegations of the complaint concerning the nature and
interstate character of its business, but denying the alleged unfair
labor practices.
Pursuant to notice, a hearing was held on February 24, 25, and
26, 1938, at Goshen, Indiana, before David F. Smith, the Trial
Examiner duly designated by the Board. The Board and the re-
spondent were represented by counsel, the United by its secretary,
and all participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues was afforded all parties. During the course
of the hearing the Trial Examiner made several rulings on motions
and on objections to the admission of evidence. The Board has
reviewed such rulings and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
On April 30, 1938, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon all parties, in which
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
recommended that the respondent cease and desist therefrom and
that it take certain specific affirmative action, including an offer to
reinstate with back pay the three employees alleged to have been
discriminatorily discharged and the fourth who was alleged to have
been discriminatorily demoted. On May 18, 1938, the respondent
filed its exceptions to the Intermediate Report, and requested oppor-
tunity for oral argument before the Board. Pursuant to the request,
oral argument was set for September 29, 1938, at Washington, D. C.,
but none of the parties appeared. The Board has reviewed the ex-
ceptions to the Intermediate Report and, in so far as they are incon-
sistent with the findings, conclusions, and order set forth below,
finds them to be without merit.
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is an Indiana corporation with its principal office
and place of business at Goshen, Indiana, and is engaged in the
manufacture and sale of molded rubber goods and similar products.
During 1937 the respondent purchased raw materials amounting to
$63,588.78, of which $58,180.51 represented purchases outside the
State of Indiana. In the same year the respondent sold rubber
goods valued at $286,499.29. The value of such products trans-
ported to States other than Indiana was $227,803.39.
The respondent normally employs about 89 production and main-
tenance workers.
II. THE ORGANIZATION INVOLVED
United Rubber Workers of America, Local #124, is a labor organi-
zation, affiliated with the Committee for Industrial Organization,
admitting to membership the production and maintenance employees
of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Although there were no organizing activities in the respondent's
plant before April 1937, there was considerable unrest among the em-
ployees concerning working conditions as early as January. The
respondent claims that at about this time it became alarmed by news-
paper reports of labor disputes in Detroit and other places, and
grew apprehensive of similar difficulties at its own plant. This fear
of the respondent crystallized into a particular distaste of the Com-
mittee for Industrial Organization. The disquietude of the respond-
ent's employees manifested itself in February when Merle Armstrong,
an employee, assumed the leading role in circulating a petition for
shorter hours and in posting on the bulletin board a paper referring
to "sweat shop" conditions in the plant and signed "Union Leader."
As will be more fully developed later, Morris Cripe, plant superin-
tendent, then revealed the aggressive anti-union attitude of the re-
spondent by immediately discharging Armstrong for "trying to get the
union in here."
The United began to organize the respondent's employees in April
1937 and by May 11 had obtained about 25 members, received its
GOSHEN RUBBER AND MANUFACTURING COMPANY ET AL. 1349
charter, elected officers, and was pressing the respondent for a writ-
ten promise not to discriminate against union members.
At that point the respondent launched a vigorous campaign of
opposition to the United. On May 12 a petition against any labor
organization "other than that which might be organized solely among
the employees of the Goshen Rubber and Manufacturing Company"
was circulated in the plant during working hours. Not only was it
passed around among the employees with the knowledge and consent
of the respondent's foremen, but also five foremen signed the paper
and at least one of them actively solicited the signatures of a large
number of the respondent's employees. In the latter regard it ap-
pears that Lloyd Stump, trimming-room foreman, requested a group
of about 20 employees in his own department to sign the petition and
stated that he believed that "the office was in favor of the paper."
Before the petition could be completely circulated, however, Lyle
Armstrong, a United member, obtained possession of it from Johnnie
Niccum, a strawboss, for the pretended purpose of procuring the
signature of another employee. Instead, Armstrong then delivered it
to Earl Lantz, president of the United, who in turn concealed the
paper. The respondent's interest in the petition is evidenced by the
fact that immediately after Armstrong had delivered it to Lantz,
Orlando Hower, a foreman, insisted that Armstrong inform him of
the whereabouts of the paper.
On the afternoon of May 12, Raymond Hoffman, secretary of the
United, approached Morris Cripe and protested the circulation of the
petition. Cripe thereupon prepared and personally obtained the sig-
natures of the foremen to a written notice instructing them "to in no
way assist or aid in the circulation of any petition relative to employee
and employer relationships." Shortly thereafter on the same day,
however, a second similar petition was circulated among the respond-
ent's employees in the same manner as the first. That the foremen
were not in the least deterred from their anti-union activities by the
above-mentioned notice is evidenced by the fact that no less than
seven foremen signed the new petition.
Gordon Pease, the respondent's general manager, stated at the
hearing that the petitions were prepared and circulated without the
knowledge or consent of the management. The above activities of the
respondent's foremen in connection therewith and their supervisory
status, however, are not denied. And in accordance with the theory
consistently expressed in previous decisions,' we hold that the respond-
1 See Matter of Mock-Judson-Voehringer Company of North Carolina, Incorporated and
American Federation of Hosiery Workers, North Carolina District , 8 N. L. R. B 133 ;
and see also Matter of Ward Baking Company and Committee for Indust.lal Organiza-
tion, 8 N. L. R B. 558.
164275-39-vol xi-86
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent is answerable for the acts of its foremen in this regard. We fur-
ther hold that the instructions to the foremen contained in the notice
concerning the circulation of petitions in nowise tend to nullify the
coercive effect of their activities nor to exempt the respondent from
liability therefor. In this regard we deem it significant that the
instructions were not accorded general publication in the plant and
that the foremen were not reprimanded for signing the second peti-
tion. On the contrary, Cripe testified that he did not consider such
act a violation of his instructions.
The respondent's campaign against the United did not cease with
the circulation of the anti-union petitions. On May 14, disregarding
the United's request for a promise to be posted on the bulletin board
not to discriminate against union members, the respondent posted
instead on four bulletin boards in the plant a document entitled, "A
Message to Employees. Facts about the Wagner Act (National
Labor Relations Act)."
Although this document expressly purports to "inform employees
of their rights under the Wagner Act," no reference to the funda-
mental rights of self-organization and collective bargaining guaran-
teed by the Act appears therein. On the contrary, the document states
in effect that employees are not required to join any labor organization,
but may elect to deal with the employer directly or through an inside
union, and concludes with the reminder that the employer retains
the right to "select his employees or discharge them." The patent
contradiction between the purported and actual contents of this no-
tice, together with its careful emphasis upon the right of employees
to refrain from rather than engage in self-organization and collective
bargaining, and upon the rights of the employer rather than those
of the employees with respect to discharge, serves to mislead readers
of the leaflet concerning the true principles and purposes of the Act.
We hold, therefore, that the posting of such paper referring to the
negative aspects of the Act at a time when the respondent's employees
were attempting to avail themselves of their affirmative rights there-
under constitutes an attempt to interfere with the employees in the
exercise of their right to self-organization.2
Shortly after the above activities of the respondent opposing the
United and favoring an inside union, Goshen Rubber and Manufac-
turing Company Employees Association appeared in the plant. A
O See Matter of Mansfield Mills, Inc. and Textile Workers Organizing Committee,
3 N. L. R. B 901; and Matter of Mock-Judson-Voehringer Company of North Carolina,
Incorporated and American Federation of Hosiery Workers, North Carolina District,
8 N. L. R B. 133; Matter of Pure Oil Company and International Union Local 265,
8 N L It. B 207; Matter of Western Felt Works, a Corporation and Textile Workers
Organizing Committee, Western Felt Local, 10 N. L. R. B. 407; and Matter of Nebel
Knitting Company, Ino .Ind American Federation of Hosiery Workers, 0 N. L R B. 284.
GOSHEN RUBBER AND MANUFACTURING COMPANY ET AL. 1351
number of organizing meetings were held in the plant during May,
and on June 19 the respondent posted a written recognition of the
Association as the exclusive bargaining representative of the em-
ployees. In August, however, pursuant to the recommendation of
a representative of the Board, the respondent voluntarily disestab-
lished the Association.
Sometime in September, perhaps fearful that the dissolution of the
Association would redound to the benefit of the United, Leslie Schoo-
maker, a foreman who acted with the express permission of Gordon
Pease, accompanied by George Kerlin, former president of the Asso-
ciation went to the neighboring town of Elkhart, Indiana, and there
contacted a representative of the American Federation of Labor
and requested him to organize the respondent's employees. About
October 1, pursuant to that request, the American Federation of
Labor established at the respondent's plant an affiliated labor organi-
zation called Federal Labor Union, Local Number 21,254. The re-
spondent's active participation, as set forth above, in the introduction
of this labor organization into its plant not only casts suspicion upon
the respondent's good faith in disestablishing the Association and
reflects its enmity toward the United, but also must be deemed an
attempt to interfere with the employees in the free choice of
representatives.
We find that the respondent by the foregoing acts has interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
B. The discharges
Merle Armstrong was hired by the respondent on March 27, 1935,
and was at all times a satisfactory and efficient worker.
On February 3, 1937, Armstrong took a leading part in circulating
a petition for shorter hours among the respondent's employees, and
on February 6 posted on the bulletin board in the plant a paper pur-
porting to be a notice of a union meeting to discuss "sweat shop
conditions" in the plant and signed "Union Leader." Since, as here-
inbefore noted, there were then no organizational activities in the
respondent's plant, the meeting referred to in the notice and its
ostensible signer were fictitious. Both the petition and notice, how-
ever, were prepared by fellow employees of Armstrong and were spon-
taneous expressions of discontent among the employees concerning
working conditions, particularly with respect to the 12-hour day
then in effect at the plant. The petition was signed by a number of
employees and was subsequently presented to the respondent.
On February 8, the following workday, Armstrong reported for
work as usual and, finding no materials supplied for his press, asked
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Orlando Hower, his day foreman, the reason for this deficiency. The
latter offered no explanation but instructed Armstrong to consult
Morris Cripe, superintendent. This Armstrong did and was there-
upon accused by Cripe of "trying to start trouble around the shop
there" and of attempting to compel other employees to sign the afore-
mentioned petition. An argument ensued, during which Armstrong
insisted that Cripe reveal the true source of his resentment. The
latter finally replied, "just to get right down to the point, you are
trying to get the union in here," and then informed Armstrong that he
was being laid off for 2 weeks. On the following Saturday, Arm-
strong telephoned Cripe, inquired if he should report for work on
Monday morning, and, receiving a negative answer, called at the plant
shortly thereafter and obtained a check for his accrued wages. Arm-
strong was never recalled to work and it is admitted by the respond-
ent in its answer and through the testimony of Cripe that the alleged
lay-off was in reality a discharge.
The respondent maintained in its answer that Armstrong was dis-
charged for "interference with the production and labor of other fel-
low workers." In support of this contention, Morris Cripe stated at
the hearing that he had dismissed Armstrong because two other em-
ployees had lodged complaints against him. Cripe testified in this
regard that John Frieburger, a press operator, reported that Arm-
strong had attempted to persuade him to run fewer "heats" and thus
retard his production, and that Harvey Hively, a lathe operator, com-
plained that Armstrong while circulating the petition for shorter
hours "was calling him names and bothering him to such an extent
that his nerves were so upset he could not do his work."
We are convinced by the testimony of the respondent's own witnesses,
however, that Armstrong's discharge was not motivated by these al-
leged complaints. Cripe testified that Frieburger's accusation was
made several weeks before Armstrong's dismissal and that he never
at any time informed Armstrong of the charge against him in that
respect. These facts, together with the respondent's failure to pro-
duce Frieburger as a witness to corroborate Cripe, not only reflect upon
the credibility of Cripe's testimony but also lead us to infer that the
respondent was not seriously impressed by this alleged complaint when
it was made and that Armstrong's dismissal at a later date was not
influenced thereby. It also appears from the testimony of Leslie
Schoomaker, the foreman who reported Hively's complaint to Pease,
that Hively's grievance against Armstrong was not based on the
allegedly belligerent manner in which Armstrong advocated the peti-
tion for shorter hours, but rather grew out of Hively's disapproval
of the petition itself, Hively wanting to "work all the hours he pos-
sibly could in order to make more money." It is likewise significant
GOSHEN RUBBER AND MANUFACTURING COMPANY ET AL. 1353
that, although the respondent was aware that Hively was an extraor-
dinarily sensitive and excitable person who was easily upset, and con-
sequently prone to take offense easily, the respondent made no effort
to ascertain the validity of Hively's complaint and at no time prior
to his discharge apprised Armstrong of the accusation against him.
In view of the respondent's knowledge of the true cause of Hively's
resentment against Armstrong and of his easily agitated disposition,
the respondent's failure to inquire into the merits of Hively's charge
persuades us that the respondent has merely seized upon it as a pur-
ported excuse for a discharge motivated by other considerations.
Except for the two instances examined above and found to be
unsupported by the evidence, the respondent has failed to adduce
any satisfactory evidence that Armstrong, in his advocacy of the
petition for shorter hours, exceeded the bounds of propriety or in
any manner interfered with the production of his fellow employees.
On the contrary, Claude Gardner, who was Armstrong's foreman
and was consequently in the position best to observe his behavior,
gave Armstrong a recommendation after his discharge and also
testified that Armstrong was at all times a satisfactory workman
and that his conduct in no way deviated from that of the ordinary
employee in the plant.
The utter lack of evidence to support the respondent's contention
that Armstrong molested and interfered with the production of his
fellow employees leads to the inescapable conclusion that the pur-
ported reason was a mere cloak for the real motive for Armstrong's
discharge. In view of all the evidence we are convinced that Arm-
strong was discharged not only because he circulated the petition
for shorter hours and engaged in other similar concerted action but
also because the respondent believed that his activities were intended
to encourage the introduction of a labor organization into the plant.
Although there was then no organizing campaign being conducted
among the respondent's employees, the respondent's belief that such
was Armstrong's intention arose from the notice which Armstrong
posted on the bulletin board referring to a union meeting and pur-
portedly signed by a union leader, and is clearly indicated by the
statement of the respondent's superintendent that Armstrong was
being discharged for "trying to get the union in here." It is obvious
that Armstrong's discharge for these reasons and for the purpose
of halting such concerted activities and forestalling the inception of
a labor organization constitutes a plain violation of the Act. Such
a discharge discourages concerted activities for the purposes of col-
lective bargaining and has the effect of discouraging the formation
of and membership in a labor organization which is the customary
instrument utilized by employees to achieve collective bargaining.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the respondent has discriminated in regard to the
hire and tenure of employment of Merle Armstrong, thereby dis-
couraging membership in a labor organization and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Even if we assume that Armstrong's discharge does not discourage
membership in a labor organization within the meaning of Section
8 (3) of the Act, such discharge for engaging in concerted activities
for the purposes of collective bargaining and other mutual aid and
protection interfered with, restrained, and coerced Armstrong and
the employees generally in the exercise of the rights guaranteed by
Section 7 of the Act and, therefore, constitutes an unfair labor
practice within the meaning of Section 8 (1) of the Act.3
Armstrong's average weekly wage at the respondent's plant was
$22. Between the date of his discharge and the time of the hearing
Armstrong earned $322 at other jobs, but he was not employed at
the date of the hearing.
Lyle Armstrong, brother of Merle Armstrong, was first employed
by the respondent in August 1936 as a press operator. His work
entailed the operation of two presses with two corresponding honey-
combed moulds and consisted of filling the moulds with raw rub-
ber and heating them for a specified period known as the "cure."
It was customary to alternate the moulds in the presses so far as
possible, a process performed by filling the first mould and placing
it in the press and then preparing the second to be inserted just be-
fore removing the first. Since a mould must be removed as soon
as the curing period ends, it is obvious that this alternating method
which contemplates keeping one mould in the press at all times can
be employed only if the operator has sufficient time to empty and
refill one mould before the "cure" on the other is completed.
Armstrong joined the United in April 1937, and was an active
member thereafter. We have already noted that on May 12, Arm-
strong removed from circulation the first of the respondent's anti-
union petitions, thereby incurring the particular disfavor of Orlando
Hower, the respondent's foreman. Immediately thereafter, Claude
Gardner, Armstrong's night foreman, instructed him to report for
work the following morning on the day shift, which was supervised
by Hower. Since Armstrong's night duty continued until midnight
and the day shift began at 6 o'clock, this transfer necessarily re-
sulted in discomfort and inconvenience to Armstrong and consti-
tuted a distinct departure from the usual custom of changing shifts
over the week end in order to take advantage of the day of rest.
3 See Matter of Indianapolis Glove Company and Amalgamated Clothing Workers of
America, Local No. 115, 5 N . L. R. B. 231.
GOSHEN RUBBER AND MANUFACTURING COMPANY ET AL . 1355
Gardner offered no satisfactory explanation of this unusual action
but merely stated that Armstrong was going to work for another
person.
Pursuant to his instructions, Armstrong reported for work the
following morning and was thereupon assigned by Hower to a shoe
cleat mould with 100 cavities and a tonic cap mould with 144 cavi-
ties. It was unusual to allot two such moulds, each of which con-
tained so large a number of cavities, to the same pressman, the
practice being to group a larger cavity mould with a small one.
It also appears that filling the shoe cleat mould required the indi-
vidual operation of a screw on each cavity, a process which ma-
terially increased the time spent in preparing it for the press.
In addition to these facts, which are admitted by the respondent,
although the normal "cures" on both shoe cleats and tonic caps is
10 minutes, Armstrong testified that Hower instructed him to re-
duce such heats to 8 and 9 minutes, respectively, and that the shorter
heats not only encroached upon the time available to prepare one
mould while the other was "curing," but also resulted in an "under-
cured" product which was sticky and difficult to remove from the
moulds. According to Armstrong the reduction of the "cure" to-
gether with the additional unusual circumstances noted above made
it impossible to alternate the moulds in the usual manner.
Immediately after work commenced, Hower approached Arm-
strong and complained that he was not alternating his moulds, and
thereafter stood at Armstrong's elbow for long periods at frequent
intervals throughout the day keeping him under close supervision
and constantly reprimanding him for his alleged failure to operate
his moulds in the proper manner. Armstrong, who had at all times
previously been an admittedly efficient and satisfactory pressman,
worked through his lunch period for a number of days in an at-
tempt to satisfy Hower. Despite these efforts, however, the latter's
rigid surveillance of Armstrong, interspersed with recurrent com-
plaints, continued without respite until May 21.
On that date and for about 2 days prior thereto Armstrong was
operating in place of the shoe cleat and tonic cap moulds a bumper
mould of 225 cavities in conjunction with a 648-cavity bottle stopper
mould. The latter was one of the largest moulds in the plant and,
according to Armstrong, could not be alternated with the bumper
mold, which also contained an unusually large number of cavities.
About 15 minutes before quitting time Hower again censured Arm-
strong for his failure to alternate the moulds, thus precipitating a
quarrel between the two men. At the conclusion of this dispute
Hower gave Armstrong a check for his wages, accompanied by a
written notice signed by Morris Cripe stating that he was being dis-
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged because he had refused to comply with his foreman's instruc-
tions relative to the handling of the mould equipment. It is signifi-
cant that, despite the fact that Hower reported to Gordon Pease that
he was having trouble with Armstrong, Pease did not discuss the
matter with Armstrong or make any attempt to adjust the difficulty,
although he admitted that it was his practice to do so. It is also
noteworthy that after Armstrong's discharge Claude Gardner refused
to give Armstrong a recommendation, although he admitted that
Armstrong's work under him was satisfactory and, according to Arm-
strong, Gardner stated, "It's my job and I am not going to give you
any." Gardner denied making such statement but offered no other
satisfactory reason for his refusal to give Armstrong a recom-
mendation.
We are of the opinion that Armstrong was not discharged for the
reason stated by the respondent. It is conceded by the respondent
that during the period in which Armstrong's conduct was in question,
he was assigned moulds both of which, contrary to the usual custom,
contained a large number of cavities, and that this circumstance ren-
dered it difficult to alternate them in the ordinary manner. This was
particularly true on the date of Armstrong's discharge, when he was
attempting to handle in a rotating system one of the moulds with the
largest number of cavities in the plant, together with a second mould
with a great number of openings. We view as patently false Hower's
testimony that it takes no longer to empty and refill a mould contain-
ing more than 600 cavities than is required for a mould with a small
number of openings. This statement is contradicted by his own ad-
mission at another point in his testimony that it was not customary to
assign a worker two moulds with a large number of cavities because
it takes longer to fill and empty them. Although Hower denied
giving Armstrong any such instructions, we are likewise convinced
that he ordered the "cures" on Armstrong's shoe cleat and tonic cap
moulds reduced from their normal periods of 10 minutes each. Arm-
strong's story, particularly with respect to the effect of the shorter
"cure" upon the rubber itself and upon his ability to alternate his
moulds, not only has a graphic clarity which gives it the stamp of
authenticity but it also constitutes the explanation of Armstrong's
failure to alternate his moulds which is most consistent with the ad-
mitted fact that he had theretofore been at all times an efficient
worker.
We are unimpressed by the testimony pf a number of the respond-
ent's witnesses that they casually observed that Armstrong occa-
sionally had both moulds on the bench at once or that he did not keep
one mould in his presses at all times. Such statements merely imply
a failure to alternate perfectly and have no tendency to contradict the
GOSHEN RUBBER AND MANUFACTURING COMPANY ET AL. 1357
explanation advanced by Armstrong for his admitted deviation from
the usual practice of handling the moulds.
We likewise find no support for the respondent's contention in the
testimony of Coulter Longcor, a press operator, to the effect that
on one occasion just prior to Armstrong's discharge he operated the
tonic cap and cleat moulds on the night shift as a pair and expe-
rienced no difficulty in alternating them. Since it appears that the
night shift was supervised by another foreman who did not shorten
the normal "cures" on Longcor's mould, the latter's statements afford
no proper test for Armstrong's ability to alternate the moulds with a
shorter period in which to empty and fill them.
We also deem it significant that, although the respondent claimed
that Armstrong's alleged refusal to operate his mould properly would
tend to slow production, no attempt was made to demonstrate that
Armstrong produced less than other pressmen, despite the fact that
a record was kept of the number of heats run by each operator.
A careful review of the circumstances pertaining to Armstrong's
discharge persuades us that it was the culmination of a deliberate
attempt to fabricate an excuse to get rid of him because of his union
activities. Shortly subsequent to joining the United and immediately
after attempting to prevent the respondent's circulation of an anti-
union petition, Armstrong was transferred in contravention of plant
practice to the day shift, where he came under the jurisdiction of
Orlando Hower, the foreman who had evinced particular interest in
Armstrong's concealment of the respondent's petition. Hower there-
upon allotted Armstrong moulds with an abnormally large number
of cavities and reduced "cures," circumstances which rendered alter-
nation in the usual manner impossible. Nevertheless, despite his
knowledge of the true reason for Armstrong's difficulties, Hower
badgered Armstrong with frequent unfounded complaints and strict
supervision for a number of days, and finally by his unfair criticism
provoked an altercation with Armstrong. Directly thereafter, the
respondent permitted Hower to discharge Armstrong for an alleged
reason which was groundless and without any attempt on the part
of the respondent's general manager to discuss the matter with Arm-
strong with the view to a possible satisfactory adjustment, although
the practice had been to do so in all such cases.
These facts demonstrate and we find that Armstrong was dis-
charged because of his union activities. We further find that by dis-
charging Lyle Armstrong the respondent has discriminated in re-
gard to his hire and tenure of employment, thereby discouraging mem-
bership in the United and interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the time of his discharge Armstrong was earning 45 cents per
hour and an average wage of approximately $22 per week. Be-
tween his discharge and the hearing, Armstrong earned $86 at other
jobs, and between January 15, 1938, and the same date earned $43.60
per month on the pay roll of the Works Progress Administration.
Raymond Hoffman was hired by the respondent in August 1933,
and, except for a lay-off of several months shortly thereafter, re-
mained in the respondent's employ until his dismissal on June 17, 1937.
Hoffman joined the United in April 1937 and thereupon became
financial secretary and a member of the bargaining committee which
conferred with the respondent on several occasions. On May 12, as
hereinbefore noted, Hoffman protested to Morris Cripe against the
respondent's participation in the circulation of the anti-union peti-
tion. It likewise appears that on June 11, Hoffman induced George
Stump, brother of Lloyd Stump, foreman, to join the United. On
the following morning Hoffman and George Stump were working
together in the buffing room when Morris Cripe approached and
reprimanded Hoffman sharply for talking, but said nothing to Stump,
although both Hoffman and Stump were engaging in conversation.
A few days thereafter, on June 16, Hoffman was working on the
night shift in the milling department. It so happened that at about
9:30 p. m. the raw materials for the tube mill at which Hoffman was
employed became temporarily exhausted. Having nothing to do at
the moment, Hoffman walked out of the back door of the shop and
stood in or near the entrance to the boiler room directly opposite for
a short time. While Hoffman stood there, Harold Kerlin, foreman
in the heater department, flashed a light on him from the roof of the
respondent's plant just above Hoffman's position. Hoffman then
shouted a greeting to Kerlin and returned to his place in the plant.
At the hearing Kerlin testified that upon going to the roof to close
a skylight he had observed Hoffman walking out of the shop, that
having heard that Hoffman had been smoking during working hours
he had followed Hoffman by way of the roof, and that he observed
Hoffman began smoking before turning the light on him. Kerlin
then wrote Morris Cripe a note reporting what he had allegedly
seen, and on the next day, without investigating Kerlin's charge or
discussing it with Hoffman, the respondent gave Hoffman a written
notice signed by Cripe stating that he was being dismissed for
smoking during working hours.
At the hearing Hoffman denied that he was smoking on the occasion
alleged by the respondent. His testimony in that regard is partly
substantiated by the statement of George Stump, who worked beside
Hoffman. Stump testified that at the time in question Hoffman was
never outside the line of his vision, and that he did not observe Hoff-
GOSHEN RUBBER AND MANUFACTURING COMPANY ET AL. 1359
man smoking. Stump further stated, however, that upon returning
to his place, Hoffman had said that he believed that he had been
caught smoking. Hoffman denied that he made such a statement
and testified that he merely remarked that the person on the roof
was probably attempting to detect someone smoking.
We are relieved of the necessity for resolving the conflicting testi-
mony on this point, however, by our considered belief that even if
Hoffman was smoking on the night in question, such act was not the
real reason for his discharge. Although notices forbidding smoking
were posted in the plant, there were no particular fire hazards and
it was customary for the employees, including some of the respondent's
foremen, to go to the boiler room at intervals during working hours
in order to smoke. It appears that the respondent, through its fore-
men, was aware of these frequent infractions of its formal rules.
Despite such knowledge, however, it appears that the respondent at
no time during more than 3 years preceding Hoffman's discharge
even so much as admonished Hoffman or any other employee for
smoking. We are not impressed by the statement of a number of the
respondent's witnesses that a demoted foreman named Rohrer was
discharged in 1933 for that reason. The vague and indefinite nature
of the testimony with respect to the circumstances of this alleged
dismissal, together with the fact that it occurred several years before
Hoffman's discharge, serves to strip it of any probative value which
it might otherwise have in the present case. In view of the respond-
ent's long-standing practice of countenancing smoking among its
employees, we may reasonably infer that such alleged infraction of
its rules was not deemed so serious by the respondent as to merit
the drastic disciplinary action which was meted out to Hoffman.
Although the respondent informed Hoffman on June 17 and sub-
sequently maintained in its answer that he was dismissed for smoking,
it was contended by the respondent at the hearing that incompetence
was the primary reason for Hoffman's discharge. In support of this
contention, Gordon Pease stated that from the very beginning of his
employment Hoffman proved slow and lacking in adaptability and
had consequently been transferred successively from one department
to another in an attempt to find a suitable place for him. Leslie
Schoomaker also testified in this regard that Hoffman had worked
under his supervision at intervals during his employment and that
Hoffman was indolent and generally inefficient.
The respondent's testimony, with respect to Hoffman's purported
inefficiency, however, is unconvincing. It appears that during the
long tenure of Hoffman's employment he received only one complaint
concerning his work. On that occasion, which transpired in 1934,
Hoffman was operating a punch press. Shortly prior thereto he had
lost the end of a finger at such work, a handicap which prevented
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his again attaining the maximum of efficiency at that particular type
of work. He was also performing at that time some additional tasks,
such as setting up the dies for the other presses and taking care of the
respondent's candy case which supplied sweets to the employees.
These combined factors decreased Hoffman's output and consequently
Vernon Pease, the respondent's secretary, complained that Hoffman's
production was below standard. After Hoffman had explained the
circumstances causing his deficiency, however, the respondent trans-
ferred him to another department and never again intimated that his
work was not satisfactory. It is also significant that, although the
respondent kept individual records of the output of each of its em-
ployees, no attempt was made to demonstrate by these records that
Hoffman was an unsatisfactory workman, nor did the respondent
adduce any testimony with respect to any specific instances of incom-
petence on the part of Hoffman. The failure of the respondent to
produce any concrete evidence of Hoffman's alleged incompetence,
together with the fact that the latter worked a number of years
without warning or complaint, compels us to conclude that such
inefficiency did not actually exist.
We are also of the opinion that even if Hoffman's asserted incom-
petence were deemed established, the respondent's failure to disci-
pline Hoffman for his allegedly long-standing inefficiency until he
manifested interest in the United indicates that such reason "was
culled ex post facto to screen its true motive" 4 for the dismissal. This
view appears particularly sound when it is considered that Hoffman
was not apprised of this purported reason for his discharge, when
he was dismissed, but rather was expressly informed that his em-
ployment was being terminated for another specific cause. This un-
explained shift of emphasis on the part of the respondent from one
excuse to another hitherto unmentioned leads us to infer not only that
the second was an afterthought, hastily indulged in when it appeared
that the first was frivolous,5 but also that both asserted reasons were
mere pretexts to conceal the fact that Hoffman was discharged for his
union activities.
We find that Raymond Hoffman was discharged because of his union
activities. We further find that by discharging him, the respondent
has discriminated in regard to his hire and tenure of employment,
thereby discouraging membership in the United and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Hoffman was unemployed between his discharge and the hearing.
4 See Matter of Highway Trailer Company and United Automobile Workers of America,
Local No. 1i5, etc., 3 N. L. R. B 591.
5 See Matter of Waterman Steamship, Corporation and National Maritime Union of
America, etc., 7 N. L. R. B. 237.
GOSHEN RUBBER AND MANUFACTURING COMPANY ET AL. 1361
C. The alleged demotion of Harvey Hively
Harvey Hively was hired by the respondent in 1936 as a lathe oper-
ator. He joined the United soon after its inception in. the plant and
thereupon became its vice president and a member of its bargaining
committee.
On August 9, 1937, Hively was assigned to an automatic lathe which
he operated until August 13. During the morning of the latter date,
the materials for the automatic being exhausted, Leslie Schoomaker,
Hively's foreman, ordered him to remove the automatic features of the
lathe and operate it by hand. Both Schoomaker and Gordon Pease
testified that the change was made in order to keep Hively employed
for the remainder of the day, and Hively himself admitted that the
machine was altered so as to produce battering bushings which could
not be made with the automatic equipment.
After the change Hively found that the mechanism was cumber-
some and difficult to operate as a hand lathe, largely because of a long
screw which protruded from the carriage in such manner as to threaten
to strike the operator in the stomach and to cause him some discom-
fort if he moved too close to the lathe. Hively thereupon complained
to Schoomaker and asked what he had done to be treated in such a
fashion. Schoomaker and Hively then together approached Gordon
Pease with respect to the difficulty, and in the presence of Pease, Schoo-
maker explained that the change was a temporary expedient for the
purpose of furnishing employment to Hively until the end of the
day. Thereupon, Pease advised Hively to go back to work and for-
get about the matter, to which Hively replied, "You are a hell of a
man to be commander of the American Legion." Nevertheless, at
the conclusion of the interview, Hively returned to his lathe, but after
working for a short while, informed Schoomaker that if he (Hively)
could obtain his check he would quit. Shortly thereafter Pease called
Hively into his office and asked him to sign a statement to the effect
that he was resigning and not being discharged. This Hively at first
declined to do, but when Pease refused to give him his check unless he
acquiesced, Hively signed the statement and received a check for his
wages.
It was alleged in the complaint and the Trial Examiner found that
Hively was demoted to a position which forced him to quit because of
his union activities. We do not believe, however, that such was the
case. The attitude of the respondent toward Hively was not indica-
tive of a desire to force his resignation. On the contrary, Pease ad-
vised Hively to return to his machine and forget about the incident.
Indeed, had the respondent so wished, the opportunity to get rid of
Hively presented itself about 3 weeks before the actual termination of
his employment. At that time Hively intimated to Schoomaker that
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he contemplated quitting his job and the latter encouraged him to
remain in the respondent's employ. Although some inconvenience was
involved in the hand operation of the machine, the fact that the altera-
tion was merely a temporary means of meeting an emergency situa-
tion and involved no modification in wages or hours indicates that it
was not intended to be and did not constitute a demotion designed for
forcing Hively's resignation, but rather was motivated by a desire to
keep him in employment.
We find that the record does not support the allegation of the com-
plaint that Hively was demoted to a position which forced him to
quit because of his union membership or activity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with its operations 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.
THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order the respondent to cease and desist
therefrom and to take certain affirmative action designed to effec-
tuate the policies of the Act, including the reinstatement of Merle
Armstrong, Lyle Armstrong, and Raymond Hoffman, without preju-
dice to their seniority or other rights and privileges. We shall
further order the respondent to make whole Merle Armstrong, Lyle
Armstrong, and Raymond Hoffman for any loss of pay they have
suffered by reason of their respective discharges by payment to each
of them of a sum of money equal to the amount which he normally
would have earned as wages from the date of his discharge to the
date of the offer of reinstatement, less his net earnings 6 during
said period.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
G By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R . B. 440. Monies
received for work performed upon Federal , State, county , municipal , or other work-relief
projects are not considered as earnings , but, as provided below in the Order, shall he
deducted from the sum due the employee , and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal , State , county, municipal , or other govern-
ment or governments which supplied the funds for said work -relief projects
GOSHEN RUBBER AND MANUFACTURING COMPANY ET AL. 1363
CONCLUSIONS OF LAW
1. United Rubber Workers of America, Local #124, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of their right to self-organization, to form, join, or assist
a labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the
purposes of collective bargaining and other mutual aid and protec-
tion, as guaranteed in Section 7 of the Act, the respondent has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (1) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Merle Armstrong, Lyle Armstrong, and Raymond Hoffman,
and each of them, thereby discouraging membership in a labor or-
ganization, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
4. By discharging Merle Armstrong because he engaged in con-
certed activities with other employees for the purposes of collective
bargaining and other mutual aid and protection, thereby interfering
with, restraining, and coercing Armstrong and the employees gen-
erally in the exercise of the rights guaranteed in Section 7 of the
Act, the respondent has engaged in an unfair labor practice within
the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
6. The respondent has not discriminated in regard to the hire or
tenure of employment or any term or condition of employment of
Harvey Hively within the meaning of Section 8 (3) 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 hereby orders that the
respondent, Goshen Rubber and Manufacturing Company, Goshen,
Indiana, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Rubber Workers of Amer-
ica, Local #124, or any other labor organization of its employees, by
discriminating in regard to hire or tenure of employment or any term
or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form , join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Merle Armstrong, Lyle Armstrong, and Raymond Hoff-
man immediate and full reinstatement to their former positions with-
out prejudice to their seniority and other rights and privileges;
(b) Make whole Merle Armstrong, Lyle Armstrong, and Raymond
Hoffman for any loss of pay they may have suffered by reason of their
respective discharges, by payment to each of them of a sum of money
equal to the amount which he would normally have earned as wages
from the date of his discharge to the date of the offer of reinstatement,
less his net earnings during said period; deducting, however, from the
amount otherwise due to each of the said employees, monies received by
said employee during said period for work performed upon Federal,
State, county, municipal, or other work-relief projects, and pay over
the amount so deducted to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for said work-relief projects;
(c) Immediately post notices in conspicuous places throughout its
plant and maintain such notices for a period of at least sixty (60)
consecutive days, stating that the respondent will cease and desist in
the manner aforesaid;
(d) Notify the Regional Director for the Thirteenth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges
that the respondent has discriminated in regard to the hire and tenure
of employment and/or any term or condition of employment of Har-
vey Hively, be, and it hereby is, dismissed.