Hammond Brick Co.

National Labor Relations Board - Board Decisions

Jan 3, 1955

111 N.L.R.B. 1 (N.L.R.B. 1955)

HAMMOND BRICK COMPANY and AMERICAN FEDERATION OF LABOR.
Case No. 6-CA-79-3. January 3,1955
Decision and Order
On September 22, 1954, Trial Examiner Thomas N. Kessel issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions, and the entire record
in this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner with the following modifications
and additions :
1. We agree with the Trial Examiner's finding that the interro-
gation of Robert Carder by the Respondent's president, Ford, vio-
lated Section 8 (a) (1) of the Act. In so doing, we rely on the entire
record, including the fact that this interrogation occurred in the con-
text of other unfair labor practices, as found herein.
2. We agree with the Trial Examiner's finding that prior to the dis-
charges, which are found herein to be discriminatory, the Respondent
had knowledge of union activities generally and of the prominence
of the four dischargees in the union movement. In adopting this find-
ing we rely upon the following: (a) Ford's interrogation of Carder
on the morning of the discharges as to the union activities of the four
dischargees; (b) Foreman Bloom's acknowledgement that he heard
the union talk among the employees during November; and (c)
Ford's interrogation of employee Arnold Arch Myers the night before
the discharges as to whether he had attended the union meeting that
afternoon and how many employees were present z
'Footnote 10 of the Intermediate Report contains a minor inaccuracy which does not
affect our ultimate finding. The name Leonard 'Miller contained therein shoald be
Leonard Myers.
2In this connection we adopt the Trial Examiner's finding as to the date of Foul's
visit to Myers' house. This finding is supported by Myers' affidavit which was cor-
robeiated by the testimony of Knotts and Skiles, whom the Trial Examiner credited.
See Trafford Coach Lines, 99 NLRB 399.
111 NLRB No.1. 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Respondent, Hammond Brick Company,
Grafton, West Virginia, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from the following :
(a) Discouraging membership in the American Federation of La-
bor or any other labor organization of its employees by discharging
any of its employees or in any other manner discriminating in regard
to hire, tenure, or any term or condition of employment of its
employees.
(b) Interrogating its employees as to the identity of fellow em-
ployees engaged in union activities, in a manner constituting inter-
ference, restraint, or coercion in violation of Section 8 (a) (1) .
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist the American Federation of Labor or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid and protection, or to
refrain from engaging in such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as authorized in Section 8 (a) (3) of the Act, as
guaranteed in Section 7 thereof.
2. Take the following affirmative action which it is found will
effectuate the policies of the Act :
(a) Offer to Gay O. Knotts, Paul Miller, and Kenneth Ashby
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to seniority or other rights
and privileges.
(b) Make whole Gay O. Knotts, Paul Miller, and Kenneth Ashby
for any loss of pay suffered by them in the manner set forth in the
section of the Intermediate Report entitled "The Remedy."
(c) Post at its plant in Thornton, West Virginia, copies of the
notice attached hereto and marked "Appendix." 3 Copies of said
notice, to be furnished by the Regional Director for the Sixth Region,
shall, after being duly signed by an authorized representative of the
Respondent, be posted by the Respondent immediately upon receipt
thereof and maintained by it for a period of sixty (60) consecutive
days thereafter in conspicuous places, including all places where
3 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an
Order "
HAMMOND BRICK COMPANY 3
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Upon request, make available to the Board or its agents for
examination and copying, all payroll, social-security, time, and per-
Fonnel records and all other records necessary to determine the amount
of back pay due.
(e) Notify the Regional Director for the Sixth Region in writing
within ten (10) days from the date of this Order what steps it has
taken to comply therewith.
CIiAIItMAN FARI\1ER took no part in the consideration of the above
Decision and Order.
Intermediate Report and Recommended Order
STATEMENT OF rHE CASE
Upon a charge and an amended charge filed by the American Federation of Labor,
herein called the Union, the General Counsel for the National Labor Relations
Board, by the Regional Director for the Sixth Region (Pittsburgh, Pennsylvania),
issued his complaint dated April 19, 1954, against Hammond Brick Company,
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 (a) (3) and (1) and Section 2 (6) and (7) of the National Labor Relations Act,
61 Stat. 136, herein called the Act. Copies of the complaint and a notice of hearing
were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges that the Re-
spondent on December 5, 1953, discharged employees Gay O. Knotts, Paul Miller,
Kenneth Ashby, and Leonard F. Myers for their union and concerted activities in
violation of Section 8 (a) (3) of the Act, and has since then refused to reinstate
all these employees with the exception of Leonard F. Myers; and that between
November 20 and December 5, 1953, the Respondent, through its president, inter-
rogated various employees concerning the union activities of these and other of
its employees in violation of Section 8 (a) (1) of the Act. The Respondent's
answer denied the allegations of unlawful conduct in the complaint and with respect
to the foregoing employees allegedly discharged in violation of the Act averred that
they were justifiably discharged for cause.
Pursuant to notice, a hearing was held at Grafton, West Virginia, on May 10
and 11, 1954, before Thomas N. Kessel, the Trial Examiner duly designated by
the Chief Trial Examiner. The General Counsel and the Respondent were repre-
sented by counsel, and an appearance was entered by an official representative of
the Union. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence was afforded all parties. After the hearing the Respondent
filed a brief which has been carefully considered by the Trial Examiner.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The parties stipulated that the Respondent is a West Virginia corporation with
its principal office located in Grafton, West Virginia, and that it operates a plant
in Thornton, West Virginia, where it manufactures, sells, and distributes tile and
brick products. During the most recent 12-month period Respondent sold brick
and tile products valued in excess of $100,000, of which approximately 75 percent
represents the value of such goods shipped directly to points outside the State of
West Virginia. The Respondent concedes and it is found from the foregoing facts
that it is engaged in commerce within the meaning of Section 2 (6) of the Act.
344056-55-vol. 111-2
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The American Federation of Labor is a labor organization admitting to member-
ship employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Union activities in the Respondent's plant; interference, restraint, and coercion
During the month of November 1953 discussions ensued among the Respondent's
employees concerning dissatisfaction with terms and conditions of employment.
Sentiment was expressed among them • in favor of unionizing in order to rectify
their complaints. Thereupon, by letter dated November 19, 1953, addressed to the
AFL at Charleston, West Virginia, Kenneth Ashby, one of the discharged employees
involved in this proceeding, requested that labor organization to send a representa-
tive to the Respondent's plant at Thornton to organize the Respondent's employees.
This request was renewed in a letter dated November 28, 1953, written by Gay O.
Knotts, another of the discharged employees herein involved. Responding to these
letters, William J. Quinn, organizer for the AFL, met with Ashby at Thornton on
December 2 and suggested that a meeting of the employees be held. Arrangements
for holding such a meeting on December 4 were thereupon made the next day by
Ashby, Knotts, and the other two employees alleged by the complaint to have been
unlawfully discharged, Leonard F. Myers and Paul Miller. On December 4 the
four above-named employees contacted their fellow employees by word of mouth
and invited their attendance at the meeting which was to be held that day at the
close of work at 4 p. in. at the house of employee James Williams located about
11/2 miles from the Respondent's plant.
Approximately 17 employees including the aforementioned 4 discharged em-
ployees attended the December 4 meeting which started at about 4:30 p. in. and
lasted until 5:30 or 6 p. in. Quinn arrived after the employees had assembled
and took charge of the meeting. He addressed the group and requested them to
sign union cards. About two-thirds of those present signed these cards. The fol-
lowing night Ashby, Knotts, Miller, and Myers presented 9 or 10 additional signed
cards to Quinn. Discussions were prevalent among the Respondent's employees
while at work on December 5 concerning the union meeting of the previous evening.
It was stipulated by the parties that the Respondent's Thornton plant employs
approximately 50 employees. The Respondent's president testified that at about
the time of the events with which this proceeding is concerned 40 to 50 men worked
in the plant, and that about 5 delivery or outside truckdrivers were also employed.
Thornton, where the plant is located, is a distinct though unincorporated community
designated as a village. It has a population of about 300. Approximately half of
the Respondent's employees reside there. There circumstances would appear to
warrant the application here of the Board and court-approved principle that an
employer's knowledge of its employee's union activities is reasonably inferable from
the fact that they are conducted in a small plant located in a small community.'
The Respondent's knowledge of the union activities of its employees need not, how-
ever, be predicated alone on the application of the foregoing principle despite its
aptness in this case, because there is direct evidence in the record to permit a finding
therefrom that the Respondent's officials were informed as to these activities, and
particularly as to the prominence of the four discharged employees herein involved
in the union movement. Thus, Foreman Ernest Bloom, who was directly over these
employees, was asked whether in November 1953 he had overheard talk of unioniza-
tion and testified, "I never had no conversation about it. I just heard the drifting
talk in the crowd. Nobody ever took it up with me in any way, shape or form."
Questioned whether he had "heard the talk among the men, including Miller, Ashby,
Myers and Knotts," he unqualifiedly replied, "Yes." In context, I construe Bloom's
reference to "the drifting talk" and "the talk among the men" to mean that he heard
the discussions among the foregoing employees concerning unionization. The record
further contains the credited testimony of Robert Carder concerning a conversation
with Lee Ford, Respondent's president, which occurred in the morning of December
5, the day on which the foregoing four employees were later discharged. According
1 Quest-Shon Mark Brassiere Co , Inc, 80 NLRB 1149, enfd 185 F 2d 285 (C A. 2),
cert denied 392 U S 812, Stokely Foods, Inc, 91 NLRB 1267, enfd 193 F 2d 736 (C.
A 5), Angwell Cu? tarn Company, Inc v. N. L R. B, 192 F. 2d 899 (C A 7) ; N. L. R B.
v. Abbott Worsted Mills, 127 F. 2d 438 (C. A 1) ; Puerto Rico Cereal Extracts, Inc, 94
NLRB 1032, 1048.
HAMMOND BRICK COMPANY Jr
to Carder , Ford had commented to him about a union being started and inquired
whether the four discharged employees had spoken in its behalf .2 This interrogation
reasonably imports that Ford was seeking confirmation of information previously
acquired or of his belief that these employees were the spokesmen for the Union.
In crediting Carder's testimony in the foregoing respect I have considered the fact
that while Ford denied knowledge of the union activities of the discharged employees
before their discharges on December 5, he did not in testimony deny his conversa-
tion with Carder as related by the latter . Nor did he deny his awareness of the
union movement in general . Indeed, there is evidence showing Ford 's awareness
of the union movement during its earlier stages in November 1953. Employee Dennis
Withers had signed a sworn statement on March 11 , 1954, for a Board field examiner
which was offered in evidence by the Respondent . In it he stated that he had been
approached by Myers and Knotts about bringing a union into the plant, and that
sometime before the occurrence of an incident relating to a fan ( referred to infra)
which, according to the statement happened about November 23, 1953,3 (found
hereinafter to have occurred on November 28, 1953 ), Ford asked him "whether the
boys had approached [ him] about the Union", and that without revealing names, he
had admitted to Ford that he had been contacted for this purpose . Withers denied
in testimony that Ford had come to him with such inquiry, but asserted that he had
taken the initiative in bringing the information concerning the union movement to
Ford's attention . It is immaterial whether Withers' version on the witness stand or as
contained in his sworn statement is the correct one. What matters is that either
account demonstrates that Ford was alerted in November to the organizational
activities among the employees.
I am also satisfied that the Respondent knew of the occurrence of the December 4
union meeting contemporaneously with this event. Employee James W. Skiles
testified without refutation that as he was about to leave his work on December 4 he
was informed of the meeting by a fellow employee in the presence of Superintendent
Hargett who was not more than 7 feet away at the time . I infer that Hargett over-
heard the comment about the meeting . There is also in evidence the sworn state-
ment signed by employee Arnold Arch Myers for a Board field examiner in which
Myers asserted that he had gone to the meeting , and that later that evening Ford
came to his house at his request to settle a matter pertaining to an automobile title.
The statement goes on to say that Ford then asked Myers whether he had attended
the union meeting "that night," and also how many employees were present. Myers
admitted that Ford had interrogated him as set forth in the statement , but denied
that Ford 's visit to his house occurred on December 4. He testified that Ford came
to his house on December 8. This account conflicts with the testimony of employees
Knotts and Skiles who stated that while passing Myers' house on the night of the
union meeting they saw Ford 's automobile parked there and that they looked through
a window of Myers' house and saw Ford inside. I credit their unequivocal and
mutually corroborative testimony ,4 and reject Myers' repudiation of his sworn
statement which twice bears his signature on this 2 -page document , and further
contains his certification that he had carefully read it and that the information therein
is true. I am not impressed with Myers ' explanation at the hearing that he had
erroneously sworn that Ford had visited him on the night of the union meeting
because he bad only partly read his statement before signing and must therefore have
"overlooked" or "over-read" the portion in question . In this connection I have
considered Ford's denial of a December 4 visit to Myers' house and his claim that he
went there only on December 8 on the matter of the automobile title. Ford 's recol-
lection of the December 8 date hinged on the fact that the automobile title contains
a notation of cancellation of lien dated December 8, 1953, which he asserted was
written by him on the document at Myers' house on that date . I am not convinced
by this rationalization , for it does not preclude an earlier visit to Myers' house on
December 4.
2 At two other points in his testimony Carder referred only to 3 of these 4 employees as
the subject of Ford's inquiry . I am satisfied however from Carder's testimony as a whole
that Ford ' s inquiry was as to all these discharged employees
3 Although Withers asserted that he was badgered by the field examiner into giving
dates which he did not then remember as to the matters contained in his statement, he did
not derv that his conversation with Ford occurred before the fan incident Thus his
conversation with Ford necessarily took place before November 28
4 Skiles impressed me as a sincere though sometimes confused witness I credit his
testimony in the above respect because it referred to an uncomplicated matter as to which
he was not confused , and because he was corroborated by Knotts whom I regard as a
reliable witness
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, there are other elements in the testimony of Myers and Ford con-
cerning the matter in which the lien was allegedly cancelled which casts doubt on
the accuracy of their account of this transaction. Ford admitted that he was totally
unaware of Myers' desire to have the lien cancelled before he arrived at his house.
I regard it unlikely that he would have cancelled the lien without first checking com-
pany records to determine the status of Myers' payments, particularly in view of his
testimony, more fully explicated below, that he had delayed discharging the four
employees herein involved to determine whether they owed money to the Company
on unpaid loans or purchases. Ford testified that the Respondent made a considera-
ble number of advances to its employees for purchase of automobiles or tires and
also sold them gasoline, apparently on credit, and that these debts were repaid by
periodic installments, presumably from salary payments. No reasonable explana-
tion appears as to why in Myers' case Ford so readily knew that his debt was virtu-
ally paid up, while in the case of the four discharged employees he was not equally
informed without a preliminary check concerning their debts to the Company. Nor
is any explanation evident for the urgency of cancellation of the lien on either De-
cember 4 or 8 necessitating a nightly visit by the Company's president to the house
of a rank-and-file employee without any advance information regarding the nature
of the business which brought him there. While the wife of Foreman Bloom testi-
fied in support of Myers that she had placed his call to Ford on December 8, I am
reluctant to rely on her testimony for whatever it may be worth,5 because she im-
pressed me as having a tendency towards exaggeration or carelessness with certain
facts which impaired the general reliability of her testimony. Thus on her direct ex-
amination she claimed to have observed "picketing" by the discharged employees
for several days. On cross-examination the "picketing," as to which there is no sug-
gestion elsewhere in the record, devolved into her observation that she had seen these
employees stop other employees to talk with them as they left the plant after work.
She claimed to have inquired from Myers "what it was all about" when he came to
her house on December 8 to have her call Ford. This assertedly helped her to fix
the date of the call to Ford. Yet on cross-examination she testified that she had
learned from her husband on December 5 that the four employees had been dis-
charged that day. Assuming this to have been so, there was little purpose if any
for subsequently inquiring from Myers as to information she already possessed.
She further testified that her husband had revealed to her on December 5 that the
four employees had been discharged for incompetence and that he had been so in-
formed by Ford. Ford, however, testified that he had not taken up the matter of
these discharges with Foreman Bloom and had discussed it only with Superintendent
Hargett, and as shown hereinafter did not even tell Hargett the reasons for the dis-
charges. Bloom, therefore, could not have imparted the information to his wife on
December 5 which she claimed to have obtained from him on that date.
I am satisfied from the foregoing that the Respondent was cognizant of the promi-
nence of Knotts, Ashby, Miller, and Myers in the union movement before they were
discharged. I do not, however, find that all the conduct by President Ford which
reflects such knowledge or belief constituted a violation of Section 8 (a) (1) of the
Act as alleged in the complaint. Assuming that Ford had interrogated Withers in
November as set forth in his sworn statement to the Board field examiner, I perceive
nothing coercive in this limited inquiry. Nor in my view is there any element of
coercion in Ford's question to Myers concerning his attendance at the union meet-
ing and the number of employees present. There remains only President Ford's
December 5 interrogation of employee Carder as to the identification of Knotts,
Ashby, Miller, and Myers as spokesmen for the Union. The significance of this in-
quiry is that it was directed to ascertaining who was speaking for the Union. Ques-
tioning employees for such purpose has been declared by the Board in two recent
decisions 6 unlawfully to transgress permissible limits of interrogation as to union
activities, even where such inquiry as here represents an isolated instance of interro-
gation.7 I therefore find Ford's interrogation of Carder to have been violative of
Section 8 (a) (1) of the Act.
B. Discrimination
As noted, employees Knotts, Ashby, Miller, and Myers were discharged on Decem-
ber 5, 1953. In the period immediately preceding their discharges, these employees
8I am satisfied that Ford came to Myeis' house on December 4, whether or not he also
came there on December 8
6 St Louis Car Company, 108 NLRB 1523. Bowling Green Manufacturing Company,
108 NLRB 1608
7 Bowling Green Manufacturing Company, supra.
HAMMOND BRICK COMPANY 7
had formed part of the factory crew under Foreman Ernest Bloom. Knotts and
Miller were employed as hackers whose duties consisted of taking wet brick from a
belt as they came from the dies which cut and formed them and placing these bricks
by hand on a car. Ashby and Myers were transfermen in a crew of four whose duties
consisted of pushing the car on which the bricks were loaded into a tunnel for drying.
Knotts had worked continuously for the Respondent from September 1945 until
he was discharged . During all but 4 months of this period he had been employed
as a hacker . In June 1953 he had been assigned to duty as a machine operator, a
job which paid 171/z cents per hour more than the rate for hacker. In October 1953
he requested Ford to reassign him to duty as a hacker . This was done. Knotts
explained at the hearing that a defect in the machine which interfered with its opera-
tion induced him to request the reassignment . 8 He testified that his foreman , Ernest
Bloom, had never criticized his work.
Ashby had been employed by the Respondent for about a year before he was
discharged . He had started as a shipping clerk and then was assigned to the factory
as a transferman under Foreman Bloom. Referring to himself and Leonard Myers,
the other transferman , Ashby, testified that Bloom had said many times their work
was satisfactory.
Miller's employment with the Respondent extended from 1941 to 1953 with an
intervening period while he was in military service. He testified that at an un-
specified time before he was discharged he was offered the job of shipping clerk
but turned it down. Miller preferred to remain a hacker although the shipping
clerk job had more prestige and advancement so it could be considered a pro-
motion , because the shipping clerk was burdened with greater responsibility and be-
cause earnings as a hacker equaled those of shipping clerk on the basis of number
of hours worked on each job. Apparently total compensation for the shipping clerk
exceeded that for hacker, but entailed working more hours. Miller testified that ex-
cept for the one occasion involving the fan incident detailed below he was never
criticized by Foreman Bloom or anyone else in the plant during his entire employ-
ment for the Respondent.
Myers had worked for the Respondent before he was called for military service
in September 1951. He had started as a brick wheeler and then was assigned to duty
as a hacker . Upon completion of his military service he resumed his job as hacker
and continued as such until his discharge on December 5. On December 6 Ford
notified him that he would give him another chance and told him he could report for
work the next day. Myers worked on December 7 and quit at the end of the day.
He has since been reemployed by the Respondent . Myers testified that prior to his
discharge on December 5 he was never criticized by Foreman Bloom or by any other
supervisor.
According to Knotts , as he was leaving the plant at 4 p. in. on December 5, Ford
inquired of him concerning the whereabouts of Ashby, Miller , and Myers. Knotts
told him that they had already gone home. As Ford and Knotts proceeded out of
the plant they saw Ashby seated in his automobile . Ford then presented Knotts and
Ashby with their paychecks. As the usual pay periods were on the 12th and 27th of
each month , they asked Ford why they were being paid. He replied that they were
discharged . When they asked him for a reason for this action he merely stated,
"You know what for." Ashby testified that when Ford told him and Knotts they
were discharged he asked Ford whether his work had not been satisfactory. Ford
replied that it had been satisfactory, whereupon Ashby inquired why then were they
being discharged . Ford's reply was, "You know." Ashby recalled that Ford also had
mentioned a fan incident and their bad influence on the men as reasons for their
discharges . He also indicated with some uncertainty that Ford may have made
some comment about property damage as another reason.
Myers was apprised of his discharge on December 5 by Knotts and Ashby who
came to his home sometime after 4 p. m. and instructed him to go to the plant for
his pay. He immediately went there . Upon his arrival he first saw Superintendent
Hargett who, in answer to Myers' query, said he knew nothing of the discharge
and directed him to Ford . The latter was busy when Myers reached him. He then
asked Foreman Bloom the reason why he was discharged and he, too, disclaimed
knowledge concerning this matter . Myers asked Bloom whether his work had been
satisfactory and Bloom answered affirmatively . He also gave the same answers to
questions about Knotts , Ashby, and Miller. When Myers finally spoke to Ford, the
latter gave him his paycheck. Ford charged Myers with "damage to the Company";
8 According to the credited testimony of employee Orville Wilt who traded jobs with
Knotts, the machine was not defective when he took it over , The reliability of Knotts'
other testimony was not impaired by Wilt's contradiction in this minor respect
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"bad influence to the other men ," and also made some comment about a trip on the
preceding day which Myers had taken to Morgantown, West Virginia, on Company
business in Ford's car at the latter's request.
Miller was informed of his discharge by Knotts, Ashby, and Myers when they
brought his paycheck to his home on the evening of December 5. Later that evening
he went to Ford at the plant and asked for reasons for his discharge. He testified
that Ford merely told him that he had been a bad influence. Pressed further for
reasons Ford merely commented "You know."
Ford admitted he had been asked for reasons for their discharges by the four
employees on December 5, and told them he could give "plenty reasons" but that
he did not have to do so and that he did not wish to "involve management further
on it." He denied telling them that their work had been satisfactory. He testified
that he gave no specific reasons for the discharges until he sent letters on December
16 to the West Virginia Department of Employment in connection with claims of
the four employees for unemployment compensation. These letters assigned the
following reasons for the discharges: Knotts had been promoted in July 1953 to the
job of machine operator. After 2 months of exceptionally good performance he
lost interest in his work and was demoted. Thereafter he was dissatisfied and un-
cooperative. Indicating that Knotts' dismissal should have occurred 3 months sooner,
the letter characterizes him as an "undesirable" and "disgruntled" employee because
of his inability to handle advancement . Miller's letter refers to an operational change
installed in the plant in January 1953 with a resultant revision in the Respondent's
method of payments to its factory workers. Miller assertedly regarded the change
as a pay cut for the factory crew and during all of 1953 was "dissatisfied" and "dis-
gruntled." Twice in the past 2 years Miller was offered but refused advancement to
the job of shipping clerk, and thereafter seemed "disgruntled," "uncooperative," and
"troublesome." Ford's attempts to reason with him were to no avail. Had it not
been for a cooperative plan in the plant under which employees shared certain com-
pany profits, Miller would have been discharged months sooner. The letter also
states that "Factory employee cooperation and effort were at such a low ebb that a
shake-up was necessary to regain any semblance of control ." There is in addition
reference to other undisclosed "incidents too detailed to elaborate herein" which
presumably furnish reasons for the action against Miller. As to Ashby, Ford's let-
ter asserted that he had been hired as a shipping clerk, but after training was found
unfitted for the job and was thereupon given factory work. "He seemed dissatisfied
at this demotion and failed to enter into the expected spirit of cooperation . Manage-
ment often sensed a disloyalty and felt that he [Ashby] must be included in the re-
organization shake-up ." Concerning Myers, Ford 's letter complained that despite
the Company 's encouragement with his work and financial problems "He never had
a good cooperative spirit . He always seemed dissatisfied and in our opinion dis.
loyal." He was therefore included in the December 5 "general clean-up."
As related by him at the hearing , Ford decided to discharge the four employees in
question on November 28, 1953, as the direct result of the alleged failure of these
employees to transport a fan weighing 350 to 400 pounds from the repair shop to
a kiln as ordered . He testified that upon the occurrence of this incident he was
about to discharge them on the spot, but realizing his anger of the moment decided
first to discuss the matter with others under calmer circumstances with the de-
termination that "if [he] didn 't change [his] mind [he] was going to pay the men
off the following week end." It also occurred to him as a reason for delaying their
discharges that a payroll check should be made to determine whether the employees
were indebted to the Company before they were discharged as such debts would
otherwise become uncollectible .9 In the ensuing week Ford assertedly discussed this
matter with Superintendent Hargett, and after some thought decided to abide by
his original intention to discharge the employees . Accordingly, he had their final
paychecks made up on December 5 and notified them that day of their discharges.
Ford also testified that prior to the November 28 fan incident he had been trou-
bled by the conduct of the four employees. Miller, he said, had become disgruntled
and disatisfied with his work following installation in January 1953 of the new
brick-making machine adverted to above in Ford 's letter in the unemployment com-
pensation proceedings. Miller had regarded the Respondent 's change in the method
of compensation adopted upon installation of the new machine as an unjustified pay
cut and had, with other hackers present, complained to Ford about the new arrange-
ment on three occasions in approximately February, April, and the fall of 1953.
Ford depicted Miller as unwilling to reason with his explanation but yet wanting to
continue to work. Concerning Ashby, Ford referred to his assignment to duty as
9 Ford subsequently ascertained that only Myers was indebted to the Company.
HAMMOND BRICK COMPANY 9
a shipping clerk from about the spring of 1953 to July of that year, his failure to
qualify for the job, and his reassignment to factory work and initial appreciation
therewith but subsequent dissatisfaction and quarrelsomeness, starting in October
1953. As to Knotts, Ford indicated that he had been a satisfactory employee while
he was a hacker, and that in June or July 1953 he was assigned to duty as a machine
operator at which he worked exceptionally well for 2 or 3 months. Then he seemed
to lose interest in his work, and did not join with the other men in repairing ma-
chinery when a breakdown would occur in an effort to restore operations. Ford
related a particular instance in September or October 1953 of a breakdown in the
grinding department when he discovered Knotts sitting with the other men instead
of going to the dry-pan room to find out what was wrong or when the breakdown
could be repaired. For this he sharply criticized Knotts and told him that if he
were to continue as machine operator he would have to assist in maintaining and
repairing the machinery in the event of breakdowns. Soon after, Knotts requested
and was granted reassignment to hacker. Regarding Myers, Ford admitted know-
ing little about his ability or performance on his job before he left the plant to enter
military service, but claimed that he knew that he did not have "the right attitude
towards his job or the Company." Ford asserted that it was in deference to Myers'
father and brother whom he regarded as exemplary employees that he kept Myers on
the payroll as long as he did
Ford also testified that in June 1953 he inaugurated an "honor system" in the
plant whereby the employees were permitted to perform their duties without a fore-
man directly over them. Under this plan Foreman Ernest Bloom, who had been
over the factory crew which included the four employees in question, was assigned
to duty as night burner. At the same time Harry Bloom , the foreman's brother,
was placed in charge of the machinery but without supervisory authority over the
factory employees. Ford asserted that in the months of July and August 1953, under
the honor system, no semblance of order remained in the factory. Superintendent
Hargett, who was required to visit the factory twice daily and to observe, reported
to Ford on numerous occasions that the system was not working out, that the fac-
tory crew, particularly Myers, Knotts, and Miller, were not cooperating on repairs
and changes of dies and would work only when the machine was running. Ford
testified that he observed the same condition on his visits to the factory. As a result
Foreman Bloom was taken off his assignment as night burner and put back in charge
of the factory. Bloom, however, failed to obtain "proper control" or "proper re-
spect" as a supervisor and the necessity for some action to remedy the situation in
the factory was brought to Ford's attention in October or November 1953. Although
Ford had on many occasions requested Hargett to speak with the men and to urge
them to cooperate, he did not sanction discharge action by Hargett without con-
sultation with him. Ford ascribed to himself a reluctance to discharge employees
because of the profit-sharing plan which was in existence at the plant since 1951.
He felt the discharges would cause employees to lose the feeling that they enjoyed
under the plan that they were "part of the organization" and not "just plain
employees "
Foreman Ernest Bloom testified that he was in charge of the factory crew during
1953 except for the 2 months when he was night burner. Questioned whether, in
the last few months preceding the discharge of the four employees in question, he
had discussed their work with Superintendent Hargett and in particular whether
he had reported to him on their cooperation , he testified that on occasion he had
grievances which he periodically took up with authorities and agreements were
reached without the necessity of discharging the men. He claimed that there were
many grievances he took up in this manner without mentioning them to the men.
He recalled an instance when it came to his attention that Myers was not oiling
cars as required, despite his insistence that he was doing so. Bloom plugged an oil
can spout with a match stick for 7 hours and was assured by this device that Myers
was not doing the required oiling. This incident occurred in the early winter of
1953. Asked whether there were other specific complaints of this nature, Bloom
replied, "Well, there were a lot of little grievances that would come up that we
tried to get by with, without raising any disturbance. I can't just recall them now."
Questioned about a track changing incident which occurred in November 1953,
Bloom testified that he took a crew out to do the job and that the four employees
herein involved were included. Although all in the crew were ordered to stay on
the job until it was finished, some stayed on and others did not. Bloom did not
identify any of the employees involved in this incident, which appeared to consist
of more than just the four employees in question , or which of these employees, if
any, were the ones who left before the job was completed. He was also reminded
by counsel's question of a 7-year-old incident when Miller was not chosen by him
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for a particular assignment and angrily used some profane language in addressing
him. Bloom further testified that when questioned by some of the four discharged
employees about reasons for their discharges he did not give them satisfactory an-
swers because he had not discharged them and thought their inquiries should be
directed to the one who had.
Superintendent Hargett testified that he was familiar with the employment record
of the four discharged employees and that he had received complaints about them
from Foreman Bloom and from Harry Bloom. He could not recall when he received
these complaints, but remembered the oil can incident involving Myers and the
track change episode. He reported both matters to Ford. He did not investigate
the track change complaint and did not ascertain the names of particular employ-
ees who were at fault. He conceded that no particular employees were singled out
for criticism as a result of this complaint.
Harry Bloom gave the following account of his July and August 1953 experience
when his brother was shifted from duty as factory foreman to night burner and
he was charged with responsibility for the factory machinery. He testified that his
duties included supervision of the factory employees concerned in this proceeding,
but that when he asked them to do various things when they were not engaged in
their regular duties they seemed to be displeased with his authority and refused to
comply. He recounted two specific incidents. One involved the refusal of the
hackers and transfermen to put clay on a conveyor. The other concerned a change
of screen plates in the dry pans which had been ordered by Ford. He directed the
crew, which included the four employees in question, to carry the plates to the ap-
propriate place. They refused to do so claiming that this was not part of their
work. Ford then came by and Bloom took the matter up with him. Ford himself
ordered the crew to carry the plates and they complied. Questioned by counsel
whether he had reported other similar incidents to Hargett, Bloom answered affirma-
tively, but testified that there were no other incidents that he could remember clearly.
Questioned specifically about Gay Knotts, Bloom recalled another incident when
clay refuse had piled up around the machine making Roman brick. His brother
was there at the time and he told the factory crew of six, including Knotts, to trans-
port the clay to the conveyor. After wheeling one load they stopped this activity
and sat down by the fire. No date was specified for this clay removal incident.
As Foreman Bloom was then present it would appear that it did not occur during
the months of July and August when Harry Bloom was in charge of the factory.
Questioned also about Kenneth Ashby, Bloom testified that when he asked him to
carry out orders he failed to do so, although there were no outright refusals by him.
As a result of these experiences during the course of his 2 months over the factory
crew, Bloom indicated to Hargett that he would rather quit his job than continue
under these conditions. Questioned by the Trial Examiner as to specific employees
in the six-man crew of hackers and transfermen involved in the foregoing clay
removal and plate carrying incidents, Bloom testified that his orders were not given
to them individually but to the entire group . He further testified that Knotts was
a machine operator during this period and was not involved in the refusals by the
six-man crew to carry out these orders.
Turning to the evidence relevant to the fan incident, I am. satisfied first, from the
testimony of President Ford, who convincingly related the date of its occurrence
to other events and dates which clearly stood out in his memory, that it happened
on Saturday, November 28, 1953. According to Ford, he had on the morning of
this day been anxious to start using the fan on an experimental kiln and when he
discovered that certain mechanical adjustments were required to make it operable,
he ordered Dennis Withers, the welder, to accomplish the necessary work. The kiln
was about 150 to 200 feet from the repair shop and several employees were de-
tailed by Foreman Bloom to transport the fan. Withers, assisted by Harry Bloom,
completed work on the fan in the repair shop at about 11:30 a. m. and notified
Foreman Bloom that it was ready to be carried back to the kiln. Ford was then also
present and upon ascertaining that the fan was ready to be installed at the kiln
departed for that destination to await its arrival. Foreman Bloom then ordered a
group of employees to move the fan. I find from the credited testimony of Knotts
that this group included himself, Ashby, Miller, Robert Carder, and Kenny Myers.'°
10 Knotts alone, of all the witnesses at the hearing, testified with certainty and clarity
concerning the identity of all the employees in this group. Thus, Miller recalled that he,
Knotts, and Ashby were included, but could not remember who else ; Ashby testified first
that he, Knotts, Leonard Myers, Miller, Carder, and Orville Wilt were in the group, and
then testified that Kenny Myers was also included; Ford testified that he was not sure
who was in the group ; Withers conceded that he did not know which men carried the
HAMMOND BRICK COMPANY 11
These employees proceeded with the fan and had transported it about half the dis-
tance to the kiln when they observed the customary blinking of lights in the factory
signaling the start of the 12 o 'clock lunch hour. They thereupon deposited the fan
on the floor . Estimates from various witnesses as to the time it would have taken or
actually how long it did take subsequently to transport the fan to the kiln from the
spot where the crew set it down ranged from 10 to 20 minutes. According to
Knotts, whose testimony in the following respect I also credit because his recollection
of this event impressed me as the clearest of all the witnesses , Miller and Ashby
remained m the factory to eat the lunches they had brought with them , Carder and
Kenny Myers left the plant to buy their lunches, while he went to his home located
near the plant . ii Withers- testified that he gather%d his tools and started for the
kiln after the detail had departed from his shop with the fan. Observing that the
men had halted for lunch, he decided to indulge in his own meal and returned to
the engine room . Although Ford had inquired from Withers a couple of times while
he was working on the fan how he was getting along with the job and how soon
the work would be finished , he did not expressly tell him that it had to be rushed.
Nor did Ford tell him that it had to be completed before 12 o'clock, although it
was finished before then . Harry Bloom is the one who on the day in question
blinked the factory lights signaling the start of the lunch period. He testified that
before he did so he had seen the men depart for the kiln with the fan. He stated
that it was then "nearing 12 o'clock, and I stayed in the engine room and changed
the lights when 12 o'clock came ." He also testified that he had understood that the
fan was urgently needed to fire the kiln . He had not , however, given any orders or
instructions to the men carrying the fan. With regard to the fan incident Foreman
Bloom testified only that he had given the order to the men to carry the fan. He
confirmed that the lunch hour for the factory employees is regulated by the blinking
of lights, and that these employees customarily stop work at this signal to eat their
lunches without first reporting to him . He, himself , governs his lunch hour by the
same signal.
According to Ford , when he saw the fan being taken from Withers' shop he drove
his automobile completely around the plant to the experimental kiln. Failing to
see the fan there on his arrival he walked back to the shop to help the men with their
load. He then noticed the fan on the floor and assertedly asked Knotts, Miller,
Ashby, and Leonard Myers why they had halted . He was informed that there was
insufficient time before lunch for them to carry the fan all the way. Then, Ford
continued, he told them that his watch showed 5 more minutes before lunch time,
explained the urgency for getting the fan to the kiln , and pointed out that he had
considered the installation of the fan sufficiently important to have delayed his own
meal although he had foregone breakfast that day. He specifically testified that
Miller informed him "that 12 o'clock was their dinner time, and they refused to do
it." In answer to a question by the Trial Examiner, however, Ford testified that he
did not give the men a direct order to carry the fan to the kiln . As no offer was
made by the men to carry the fan, Ford obtained the services of the wheeling crew
which he encountered in the yard , and these employees , assisted by him and by
Superintendent Hargett, carried the fan to the kiln where it was installed.
In his testimony Ford emphasized his anger against the factory crew for failing
to accommodate him. He claimed that when he spoke to Hargett at the time he
told him he was "God -damn mad and had a good mind to fire four of his men." It
fan, Foreman Bloom indicated only that the group might have included Carder and
Kenny Myers ; Harry Bloom testified that he saw the men carrying the fan but was
asked no questions at the hearing concerning their identity , Carder first testified that
he, Miller , Knotts, Ashby , Kenny Myers , and Leonard Miller formed the group , but then
expressed unceitainty as to whether Leonard Miller was included , Orville Wilt was called
as a witness but was not questioned concerning the fan incident ; Leonard Myers denied
that he was part of the group carrying the fan ; Kenny Myers testified that he was in the
group, but was not questioned as to the identity of others.
n Carder testified that he went to a store to buy his lunch ; Miller testified that he
and Ashby ate their lunches in the plant ; from Ashby 's testimony it is clear that he
remained in the plant during the lunch period ; Ford 's testimony was somewhat equiv-
ocal on this point , for on direct examination he testified that after the fan had been set
down he saw Knotts , Miller , Ashby, and Leonard Myeis starting to eat their lunches, but
on cross-examination conceded that he had not closely observed who was present He
did not respond directly to the General Counsel's question "You really don't know who
was there , do you?" but replied , "Well, there were sufficient men to carry the fan when
they refused."
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was then, as already related, that he decided to think the matter over , rather than
to discharge the men on the spur of the moment.
Miller testified that after the fan had been put down he and Ashby had begun to
eat their lunches when Ford approached and expressed his disappointment over the
fact that the men had not delivered the fan , pointing out to them that he had had a
trying night and day. Miller replied that if the men had known there was any hurry
involved in getting the fan to the kiln, they would have brought it there. No one,
however, had told them that it was a rush job. He claimed no offer was made by
him or Ashby to deliver the fan to the kiln when Ford spoke to them as they were
the only ones of the crew preset and could not by themselves have carried the fan.
He further testified that Ford gave him no warning or other indication that he was
planning to discharge him because of this incident. Ashby also testified that Ford
had spoken to him and Miller about his regret over their failure to deliver the fan.
It was evident from Ashby's testimony that he regarded Ford as vexed over the
incident.
Superintendent Hargett testified that Ford had spoken to him at the time of the
fan incident and reported that he had asked the men to move the fan, but that after
they had started with it they had set it down and refused to move it the rest of the
way. He also testified that Ford on this occasion was "awful mad" and had said
that he had a notion to fire the men.
Carder and Kenny Myers testified that they were never criticized for their part
in the fan incident . Foreman Bloom acknowledged that Carder was one of the men
on the fan detail , and conceded that his work record was clear.
In further support of its defense to the allegations of discrimination , the Respond-
ent introduced evidence indicating the absence of union animus or interference with
the union activities of its employees . Thus it was shown that President Ford had
himself been an active union member during his career as a rank-and -file employee
before his connection with the Respondent ; that the Respondent had until about 1950
bargained with the United Construction Workers, District 50, as the representative
of its employees , and when it ceased to act as their representative the Respondent
continued to maintain the bargaining contract under a "gentleman 's agreement"
with the employees ; and although the officers and committeemen of that union, in-
cluding Paul Miller, were known to the Respondent , it had never discharged them
or otherwise discriminated against them because of their official union connections;
and finally, numerous employees testified at the hearing that they were never inter-
rogated as to their union activities by the Respondent.
As indicated by the Board and court precedents cited by the General Counsel in
support of his case in closing argument at the hearing, the Respondent 's discrimina-
tory motive for the discharge of the four employees involved is discernible from the
sequence of events in this case revealing the discharge of these employees the day
after the first organizational meeting of the Union , from the fact that they were
leading proponents of the Union among the Respondent 's employees and were re-
sponsible for such organizing as had already been accomplished and that the Re-
spondent was aware thereof; that the Respondent 's president had interrogated an
employee about the union activities of these employees on the day of their discharges;
that they were discharged abruptly without any previous warning nor notice; that
no satisfactory explanation was given them at the time of their discharges for this
action although they pressed for reasons ; that the reasons relied upon by the Re-
spondent at the hearing were not consistent with those previously given by the Re-
spondent for this action ; and that none of the reasons advanced for the discharges was
convincing.
The Respondent 's justification for discharging the four employees was predicated
on the claim that the Respondent had no knowledge of their union activities when
it took its action against them and hence could not have been discriminatorily mo-
tivated ; that it had decided to discharge them for their misconduct a week before
the Union held its first meeting so that this event could not be related to this ac-
tion; that the employment record of these employees had for months before the
advent of the Union given the Respondent much concern and reason for its ultimate
action against them; and that any possible discriminatory motive for the discharges
is dispelled by the Respondent 's record of amicable relations with a labor organ-
ization representing its employees , and the absence of reprisals against employees
who in the past had been active in union activities.
Some of the elements constituting the General Counsel 's case are established be-
yond dispute , and others have been established by findings already made in this report.
Thus it is uncontroverted that the discharged employees were notified of the action
against them on December 5 the day after the first union meeting was held, that they
were active proponents of the Union , that President Ford refused to give them
HAMMOND BRICK COMPANY 13
adequate reasons for his action when he discharged them , and that the discharges
were abruptly effected without any warning or notice to the employees that such ac-
tion was contemplated . I have also found that the Respondent through its president
and other supervisors were aware of the union movement in the plant before the dis-
charges, that it knew about the December 4 union meeting contemporaneously with
this event , and that President Ford either knew or maintained a belief as to the
advocacy of the Union by the discharged employees as evidenced by his unlawful
interrogation of an employee concerning such advocacy by these employees immedi-
ately before he carried out the discharges. I further find, particularly on the basis
of President Ford's own testimony , that he did not advance the fan incident as a rea-
son for the discharges until the answer was filed in this proceeding , and that before
then President Ford had submitted reasons in writing to the West Virginia Depart-
ment of Employment without mentioning this incident . All these circumstances
have been consistently regarded by the Board and courts as indicia of unlawful mo-
tivation for the discharge of employees sufficient to support a prima facie case of
discrimination , and unless overcome by the Respondent 's explanation for the dis-
charges of the four employees in question reasonably permit an inference that they
were discharged in violation of the Act because of their union activities.
The Respondent's brief correctly points out that an employer may with impunity
discharge its employees for any reason not proscribed by the Act, or even for no
reason. If then a finding is here warranted that the four employees were discharged
for the reasons related in President Ford's testimony the conclusion must necessarily
be reached that the Act has not been infringed, for as he sought to portray their
employment experience leading up to their discharges these employees had by various
derelictions and shortcomings tested the patience of management until it was broken
by their failure to perform the urgent and important duty on November 28, 1953,
of moving the fan to the experimental kiln. Thus the crux of the defense involves
an analysis of their employment histories to see whether in the months preceding
their discharges they had seriously incurred management's resentment and finally
whether the circumstances of the fan incident provided the moving cause for the
discharges.
Turning first to President Ford's denouncement of the four employees as expressed
in his letters to the West Virginia Department of Employment and in his testimony
at the hearing, I find that in substantiation of these deprecations Ford's testimony
shows only limited knowledge derived from personal observation of the actual job
performance by these employees, explainable by the fact that he spends only 1 or 2
days of each week at the plant and that on these days his time there ranges from
an hour to a full day. Thus he testified as to direct knowledge only of the following
complained of conduct by the four employees Concerning Knotts, there was the
incident in September or October 1953 involving the breakdown in the grinding
department when he criticized this employee for not lending a hand with the repair
work , and Knotts ' request to be relieved as machine operator and reassigned to
hacking. Regarding Miller, Ford was directly acquainted with his complaints
and dissatisfaction resulting from the revision of pay rates following installation of
the new brick-making machine in December 1952 or January 1953 , and with
Miller's refusal to accept the shipping clerk job offered to him twice in the 2 years
before his discharge . Regarding Ashby, Ford related no specific incident of which
he was personally aware to support his condemnation of his job performance or
attitude other than the failure of this employee to qualify as shipping clerk. As
to Myers, he did not refer objectively to any incident reflecting personal knowledge
of his shortcomings as an employee. Ford's only other objective criticism of the
work records of these employees consists of his testimony that in July or August
1953 he observed the same lack of cooperation in the factory by Myers, Knotts,
and Miller on repairs of machinery as reported to him by Superintendent Hargett.
Here again he did not refer to any specific incidents with which he may have been
familiar, except the incident involving Knotts adverted to above. His drastic con-
demnation of these employees therefore must, if at all, have been based prin-
cipally on reports from Superintendent Hargett , Foreman Ernest Bloom , or from
Harry Bloom, for these were the persons who had the closest and most direct con-
tacts with the four employees and had the best opportunity to observe and criticize
their failings. Of these, Foreman Ernest Bloom was in the best position to observe
and report.
Foreman Bloom 's testimony reveals a dearth of references to specific instances of
misconduct or improper performance of duty by the four employees . He did, as to
Myers, specifically recall the car oiling incident which could fairly be related to
his discharge, and testified about the track change incident which was also relevant
to the disharges . As to this latter incident , Bloom did not particularize which of
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the four employees failed to stay on the job until it was completed, and so far as
the net effect of this incident is concerned on the discharge of any of these employees,
it appears doubtful that it was an impelling factor as Bloom did not, according to
Hargett, mention the names of any employees who were at fault and no employees
were ever singled out for criticism for their part in this incident. Otherwise Bloom
related only the 7-year old incident when Miller addressed him profanely. I do not
consider this incident to be relevant to Miller's discharge. As to Bloom's testimony
that he periodically discussed grievances concerning the four employees with Super-
intendent Hargett, I am not convinced that anything more than minor complaints
were involved in these grievances particularly in view of Bloom's failure to recall
any incidents other than those already mentioned. Bloom's testimony also fails
to disclose any occasion, other than the oiling incident involving Myers, when he
reprimanded or in any other way criticized these employees for their conduct.
It does not seem likely to me that Bloom as their direct superior would not have
expressed some word of caution or dissatisfaction to the employees under him over
a course of many months if he had been seriously aggrieved by their unsatisfactory
job performance, or if they were responsible for chaos in the factory. In this con-
nection, as their testimony to this effect stands unrefuted, I credit the testimony of
these employees that Bloom had at no time criticized their work, except that the
car oiling incident may be regarded as a criticism of Myers
Like Foreman Bloom, Superintendent Hargett also failed in his testimony to
particularize any derogatory incidents involving the four employees other than the
car oiling and track change episodes related by Bloom. As to the latter incident
he could not remember whether he investigated to determine which employees were
at fault, and as noted, singled out no particular employee for criticism Thus,
although he reported both these incidents to Ford, he could have fixed specific
blame only on Myers for failing to perform his duty in connection with the oiling
incident. Hargett also gave no indication in testimony that he ever reprimanded or
in any way criticized these employees. I deem it improbable that the plant superin-
tendent, who concededly had the authority to discharge employees, albeit it was a
power he was reluctant or under restraint to exercise, would have permitted mis-
conduct or failure to perform duty by employees to pass without a word of repri-
mand or caution if he had been seriously aggrieved thereby. In this connection
I have considered Ford's testimony of reports from Hargett concerning the un-
cooperativeness of the factory employees, particularly Myers, Miller, and Knotts,
during July and August 1953, and his further testimony that he had instructed
Hargett to speak to the men and to win their cooperation. Hargett's testimony does
not seem to bear this out, for he testified only as to complaints received from the
Bloom brothers and said nothing about any instructions from Ford to speak to the
men. It is hardly credible that if conditions in the factory were as chaotic as Ford
described, and that if he had specifically directed his superintendent to speak to the
responsible employees that Hargett would not have complied with this direction or
that he would not have taken some step to remedy the condition.
Harry Bloom was somewhat more specific in his complaints about the four em-
ployees than the Respondent's other witnesses. But he, too, while testifying critically
about their job performance and attitude towards him in the 2 months (July and
August 1953) when he assertedly was their supervisor (contradicted by President
Ford), could clearly relate but two incidents of alleged misconduct. These were
the occasions related above when the factory crew refused to comply with his orders
to put clay refuse on the conveyor and to carry the screen plates. He did relate
another incident involving the refusal of the crew to move clay refuse which had
collected in the course of making Roman brick, but I am unable to determine whether
this is the same clay incident referred to above, or, if a separate incident, when it oc-
curred. In any event neither this latter incident, nor the others related by Harry
Bloom, resulted in any criticism or reprimand of the employees involved other
than Ford's announcement to them in connection with the screen plates incident
that they should have complied with Bloom's request to carry them. Significantly,
even Bloom's threat to Hargett to quit because he could not tolerate the factory
crew's attitude toward him did not produce a reprimand or even a mildly worded in-
struction to respect his authority. Such complete official inaction to Bloom's distress
does not import management's serious concern with his complaints against the em-
ployees at fault. 'I have noted also that Bloom's criticism was directed to the
entire factory crew which was composed of more than the four employees herein in-
volved, and that Knotts, who was then a machine operator, was, according to Bloom,
involved only in the Roman brick episode as to which the record is somewhat
vague.
HAMMOND BRICK COMPANY 15
With respect to Miller's complaints to Ford about the change in rates resulting
from the installation of the new brick-making machine, Miller's refusal to accept the
job of shipping clerk, Knotts' reassignment on his request from the machine operator
job to hacker, and Ashby's failure to qualify for the shipping clerk job, all of
which were relied upon by Ford as reasons for characterizing these employees as
undesirables and as factors in the decision to discharge them, I am not convinced
that they did contribute to that action. Nowhere in the record is there any evidence
to show any expression of resentment by Ford or any other company official at or about
the time when the above-mentioned events occurred. So far as the record reveals,
no opposition was expressed to Miller's refusal of advancement, or Knotts' request for
reassignment. Nor is there even an indication that they were urged to reconsider
their positions, or if this were done that there was any manifestation of official disap-
pointment or disapprobation. In fact, the Respondent appeared to think well
enough of Miller after his first refusal that it made the offer a second time. These
offers of advancement appear moreover to belie Ford's disparagement of Miller's
dissatisfaction over the rate changes as it is not expected that an employer would offer
a more responsible and better paying job to an employee held by it in low esteem.
Nor did the Respondent appear to be disturbed by Knotts' request for reassign-
ment for it appears that his request was readily granted without any sign of
resentment. Similarly, nothing occurred to show that Ashby became an unwanted
employee upon his failure to qualify for the shipping clerk job, for he was assigned
to other duties without a word of criticism. The Respondent's apparent complacence
with these developments at the time of their occurrence is inconsistent with its be-
lated harsh reaction thereto expressed for the first time in Ford's letters to the
West Virginia Department of Employment after these employees were discharged.
I am satisfied that these circumstances did not impinge on the decision to discharge
these employees.
In sum, the foregoing represents all the objective evidence brought forth by the
Respondent to show that the four employees had so misconducted themselves in the
months preceding their discharges that President Ford was required to get rid of
them to restore order in his factory. I am not persuaded that this was so. The
meager evidence presented by the Respondent to illustrate the derelictions of the four
employees and the virtually complete absence of reprimands or warnings to these
employees from their superiors in the face of the alleged disorderly condition depicted
by President Ford, impels my belief that this condition either was not as he related, or
that it was not regarded by the Respondent's officials as sufficiently serious to warrant
disciplinary action against the employees at fault. I therefore reject the Respondent's
explanation that the four employees had over a course of months preceding their
discharges engaged in conduct which strained the Respondent's patience to the
breaking point, and that their separation from employment was required to restore
order in the plant. In accord with the position taken by the General Counsel I am
persuaded that if these employees had before their discharges engaged in conduct
which had been cause for employer provocation, that the Respondent had tolerated
or condoned such conduct and did not seize upon it as a reason for the discharges
until their union activities became known.
Finally, a consideration of the circumstances surrounding the fan moving incident
compels my disbelief that it was the moving cause for the discharges. The facts
pertaining to this incident as I find them to have occurred are not in accord with Ford's
version Further, I discredit his account of this incident and his reaction thereto
as unconvincing. I find that Ford testified erroneously that he spoke to Knotts,
Miller, Ashby, and Leonard Myers on this occasion and could not persuade them to
carry the fan to the kiln although he showed them by his watch that it was not yet
12 noon. I further find that the men on the fan carrying detail did not know and
were not instructed by Foreman Bloom or by any other responsible person that the
fan was urgently required at the kiln and that delivery had to be made to that desti-
nation before they stopped for lunch even though completion of this task would
carry them into their lunch period.
From the foregoing findings I conclude that the employees detailed to carry the
fan disregarded no order or instruction, expressed or implied, by halting their labors
to eat their lunches. While I am satisfied that Ford was angry and disappointed over
the interrupted movement of the fan, and that the impulse to discharge the em-
ployees involved might then have crossed his mind, I do not believe he formed a
resolute determination at that point, subject to later defeasance upon thoughtful con-
sideration of the matter, to discharge Knotts, Miller, Ashby, and Leonard Myers.
First, I am satisfied that Ford did not even know which employees other than Miller
and Ashby were involved. He was completely mistaken in including Leonard Myers
and excluding Robert Carder and Kenny Myers from the group, and curiously no
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
blame was ever attached to these latter two employees although they were equally
involved with the others who were discharged. Second, Ford's testimony that he did
not countermand his decision to discharge the four employees after "much thought"
given the matter in the ensuing week, because he "could not convince [himself] in
justice to everybody concerned that the decision should be changed" is fallible.
Had he given thought to the easily ascertainable facts he would have been clear not
only as to the identity of the employees involved, but he would also have realized
that they had not been guilty of a breach of duty. Bearing in mind Ford's testi-
mony that he did not discharge the men on the spur of the moment while he was
"real mad" but instead "decided to wait, study the thing over and talk to interested
folk," it seems incomprehensible that if he had followed this self-imposed restraint
he did not acquire the very information as to which Withers, Foreman Bloom, and
Harry Bloom readily testified. Actually, he appears to have spoken to no "interested
folk" for had he done so he would have learned from Foreman Bloom the true
composition of the fan-carrying detail, from Harry Bloom that it was "nearing" 12
o'clock when he saw the men start with the fan and then gave the lunch signal,
from Withers that he had not even told him that he was in a hurry for the fan, and
from all of these as well as from Superintendent Hargett that they had not given any
indication to the men that the fan had to be delivered without stopping for lunch.
Ford admitted that he did not discuss the matter with Foreman Bloom, but claimed
that he talked it over with Superintendent Hargett. Hargett, however, testified that
his only conversation about the men with Ford in the week following the incident
occurred on December 5, the day when they were discharged, and on this occasion
Ford did not mention the fan incident as a reason for the discharges. According
to Hargett, Ford did not even tell him why he was discharging the men, stating
"he didn't have to tell [him]." All this is so inconsistent with Ford's account of
his actions, that I am unable to credit his testimony that the fan incident motivated
the discharge of the four employees. Supporting this view is the unexplained failure
by Ford to assign this incident as a cause for the discharges in his letters to the
West Virginia Department of Employment, and the fact that he failed to mention
it to the employees when they pressed him for reasons for their discharges. I am
convinced that this incident was advanced for the first time in this proceeding to
obscure Ford's real motivation for the discharges which I find was his desire to get
rid of the four employees because of their union activities.
In so concluding I have fully considered President Ford's history as a unionist,
the Respondent's past record of amicable relations with a labor organization, the
absence of past discrimination by the Respondent against employees who had been
active unionists, and its rehire on two occasions of Leonard Myers despite his dis-
charge for the reasons found herein. I have weighed these circumstances along with
all other factors favoring the Respondent's defense, but do not regard them suffi-
ciently countervailing to help overcome the evidence of discrimination on which the
General Counsel's case rests. On the basis of the entire record I find that on De-
cember 5, 1953, the Respondent discharged employees Knotts, Miller, Ashby, and
Myers because of their union activities thereby violating Section 8 (a) (3) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with 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.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminated in regard to the hire and
tenure of employment of Gay O. Knotts, Paul Miller, Kenneth Ashby, and Leonard F.
Myers. It will therefore be recommended that the Respondent be ordered to offer
to these employees, with the exception of Leonard F. Myers, immediate and full
reinstatement to their former or substantially equivalent positions without prejudice
to seniority or other rights and privileges. See The Chase National Bank of the City of
New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. It will further be rec-
ommended that the Respondent make whole Knotts, Miller, and Ashby for any loss
of pay suffered by them because of the discrimination against them. No remedial
action involving an offer of reinstatement or payment of back pay to Myers is
herein recommended because the Respondent reemployed Myers following his dis-
HAMMOND BRICK COMPANY 17
charge without any break in service. Said loss of pay, based upon earnings which
the foregoing employees would normally have earned from December 5, 1953, the
date of the discrimination against them, to the date of the offer of reinstatement,
less net earnings, shall be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289; N. L. R B v. Seven-Up
Bottling Company of Miami, Inc., 344 U. S 344
Because the Respondent infringed upon fundamental rights guaranteed by the Act,
the commission of other unfair labor practices may thereby reasonably be antici-
pated It will therefore be recommended that the Respondent cease and desist from
in any manner infringing upon the rights guaranteed its employees by Section 7 of
the Act
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following
CONCLUSIONS OF LAW
1. The American Federation of Labor is a labor organization within the meaning
of Section 2 (5) of the Act.
2. By discriminating with respect to the hire and tenure of employment of Gay 0.
Knotts, Paul Miller, Kenneth Ashby, and Leonard F. Myers, thereby discouraging
the free exercise of rights guaranteed in Section 7 of the Act and discouraging
membership and activity in the above-mentioned labor organization, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) and (1) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Appendix
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of aTrial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor
Relations Act we hereby notify our employees that:
WE WILL NOT discourage membership in The American Federation of Labor,
or in any other labor organization of our employees by discriminating in any
manner in regard to hire, tenure, or any term or condition of employment.
WE WILL offer to Gay 0. Knotts, Paul Miller, and Kenneth Ashby immediate
and full reinstatement to their former or substantially equivalent positions,
without prejudice to any seniority or other rights and privileges, and we will
make them whole for any loss of pay suffered as a result of the discrimination
against them.
WE WILL NOT coerce employees by interrogating them with respect to the
identity of fellow employees engaged in union activities.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of the right to self-organization, to form labor organizations,
to join or assist the above-named or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from engaging in any or all such activi-
ties except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment
in conformity with Section 8 (a) (3) of the Act.
All our employees are free to become or remain, or to refrain from becoming
or remaining members of any labor organization except to the extent above stated.
HAMMOND BRICK COMPANY,
Employer.
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.