Ingalls Iron Works Co.

National Labor Relations Board - Board Decisions

Oct 21, 1944

58 N.L.R.B. 1202 (N.L.R.B. 1944)

In the Matter Of INGALLS IRON WORKS COATPANY and FEDERAL LABOR
UNION #2 3510, A. F. OF L.
Case No. 10-C-1444.-Decided October 21, 1144
DECISION
AND
ORDER
On June 27, 1944, the Trial Examiner issued his Intermediate Report
in the above entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, counsel for the Board filed exceptions
to the Intermediate Report and a brief in support of the exceptions.
No request for oral argument before the Board was made, and none
was held.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief filed by counsel for the Board,
and the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations made by the Trial Examiner, except
insofar as they are inconsistent with our findings, conclusions, and
order hereinafter set forth.
We do not agree with the Trial Examiner 's conclusion that the
respondent has not discriminated in regard to the hire or tenure of
employment of W. M. Shikle, within the meaning of Section 8 (3)
of the Act.
The Trial Examiner found that on three successive nights Chief
Guard Fulton observed Shikle improperly performing his duties as
guard at the main gate of the respondent's plant; that Fulton found
Shikle smoking while on duty in violation of a posted rule prohibiting
smoking; and that George Hisey, another of the respondent's guards,
was discharged during the month of Shikle's dismissal because Fulton
had observed that Hisey was not properly checking employees entering
the main gate. Upon the basis of these findings and in view of his
further finding that Shikle was not prominent in the union organiza-
5S N.L R B. No 224
1202
INGALLS IRON WORKS COMPANY 1203
tional efforts of the guards, the Trial Examiner concluded that Shikle
had not been unlawfully discharged.
The respondent contends that Shikle was discharged because he was
derelict in the performance of his duties as a plant guard and because
he violated its rule prohibiting smoking while on duty. The evidence
in the record supports the findings made by the Trial Examiner that
Shikle did not properly perform his duties on the particular nights
Chief Guard Fulton had him tinder surveillance and that Shikle had
smoked while on duty in violation of a rule of which he was aware.
However, we do not believe that these were the actual reasons which
motivated the respondent to discharge him.
It is clear that, from conversations with subordinate employees,
Fulton was aware of the organizational efforts of the guards prior to
the date on which Shikle was discharged and that Fulton knew Shikle's
name appeared first on the letter of February 27, 1943, requesting a
wage increase, which the guards had addressed to the Regional Direc-
tor of the Wage and Hour Division of the Department of Labor.
From the testimony of Bailey, Henderson, Blankenship, and Shikle
with respect to Shikle's activity in the organizational efforts of the
guards and his active participation in the Union as its secretary-treas-
urer, which we credit, we find, contrary to the Trial Examiner, that
Shikle played a prominent role in organizing, sponsoring, and forming
the Union. It is undisputed that, prior to his discharge, Shikle had
been employed as a guard at the main gate of the respondent's plant
for over 3 years without a complaint ever having been made against
the manner in which he performed his duties. Yet, the first night lie
worked after having signed a union membership application, Chief
Guard Fulton,, his immediate supervisor, began to scrutinize his con-
duct and kept him under close surveillance for three consecutive nights.
After three nights of intensive scrutiny, and, without prior reprimand
or warning, Fulton discharged Shikle. During the approximately
3-year period of Shikle's tenure as a plant guard, he performed his
duties, generally, in no different manner than during the time he was
under Fulton's unusual surveillance. We do not believe that, prior to
'During February and March 1943 , after first signing himself, Shikle solicited other
guards to sign the letter. He took the letter to the plant of The Birmingham Tank Com-
pany, a division of the respondent located about 7 or 8 miles distant. A guard at this
plant showed the letter to Fulton who delivered it to R C Palmer, assistant to the vice
president of the respondent Shortly thereafter Fulton questioned Shikle about the origin
of the letter and its circulation among the respondent's employees and, in response to such
Interrogation, Shikle stated to Fulton that he, Shikle, was the first signer of the letter
and that lie was the one who had brought the letter to the Birmingham plant for addi-
tional signatures Fulton thereupon remonstrated with Shikle and told him that the
letter incident would "get" Fulton "in bad" with Ingalls, an official of the respondent.
We disagree with the Trial Examiner's view that the letter incident of February-March
1943 was too remote in point of time to have figured in Shikle's discharge several months
later in august 1943. On the contrary, we are convinced and find that Shikle's discharge
is traceable in large part to the letter incident
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August'1943, Fulton was unaware of the manner in which Shikle per-
formed his duties. On the contrary, we find that Fulton had full
knowledge of such facts and that he had theretofore been lax in his
supervision ever Shikle. In contrast with the treatment accorded
Shikle, a prominent member of the Union, the record discloses that
the other guard, Hisey, who was discharged for improperly checking
employees entering the main gate, was first warned by Fulton and
discharged only after a further dereliction. As for Shikle's violation of
the no-smoking rule, it is undisputed that many of the guards em-
ployed by the respondent were guilty of violating this rule and it is
difficult to believe that Fulton was not aware of this. Furthermore,
Fulton admitted that Shikle would not have been discharged if viola-
tion of the no-smoking rule had been his only dereliction. Contrary to
the Trial Examiner's judgment, we are not persuaded that this infrac-
tion contributed in any way to Fulton's action in discharging Shikle.
While Shikle was negligent in the performance of his duties as a
plant guard, conduct which we do not condone, in view of the fore-
going findings of fact and all the circumstances surrounding his dis-
charge, in addition to the respondent's other unfair labor practices
based upon statements of management representatives, as found by
the Trial Examiner in his Intermediate Report, we conclude and find
that the real reason for Shikle's discharge was his participation in the
concerted activities of the respondent's plant guards and his union
membership and activity, rather than the fact that he was derelict
in the performance of his duties. In so doing, however, we do not
limit the respondent's right to take appropriate disciplinary action
in the future to enforce any non-discriminatory standards of conduct
it may require of its employees.
We find that, by discharging W. M. Shikle on August 8, 1943, the
respondent discriminated in regard to his hire and tenure of employ-
ment, thereby discouraging membership in the Union, and interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
The remedy
Having found that the respondent has engaged in unfair labor prac-
tices, we shall order it to cease and desist therefrom and to take cer-
tain affirmative action which we-find necessary to effectuate the policies
of the Act.
We have found that the respondent discriminated in regard to the
hire and tenure of employment of W. M. Shikle. In order to effectuate
the purposes and policies of the Act, we shall order that the respond-
ent offer to W. M. Shikle immediate and full reinstatement' to his
INGALLS IRON WORKS COMPANY 1205
former or a substantially equivalent position without prejudice to his
seniority, and other rights and privileges, and make him whole for
any loss of pay lie may have suffered by reason of the discrimination
by payment to hint of a sum of money equal to the amount he nor-
mally would have earned as wages during the period from the date of
the discrimination against him to the date of the offer of reinstate-
ment, less his net earnings' during such period. In accordance with
our practice, the period from the date of the Intermediate Report to
the date of the Order herein will be excluded in computing the amount
of back pay AV. M. Shikle is entitled to, since the Trial Examiner
did not recommend reinstatement of Shikle or an award of back pay
to him.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Federal Labor Union #23510, A. F. of L ., is a labor organization
within the meaning of Section 2 ( 5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of W. M. Shikle and thereby discouraging membership in Fed-
eral Labor Union #23510 , A. F. of L., the respondent has engaged
in and is engaging in unfair labor practices within the meaning of
Section 8 (3) of the Act.
3. By interfering with, restraining , and coercing its employees in
the exercise of 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 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce , within the meaning of Section 2,(6) and (7) of
the Act.
5. The respondent has not discriminated with respect, to the hire and
tenure of employment of C. R . Roy and R. H. Bailey.
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,
2 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, 8 N. L. R. B. 440. Monies received for work performed
upon Federal, State, county, municipal, or other work-relief projects shall be considered
an earnings . See Republic Steel Corporation v. N. L R. B, 311 U S. 7.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ingalls Iron Works Company, Birmingham, Alabama, and its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Federal Labor Union #23510,
A. T. of L., or in any other labor organization of its employees, by
discharging or refusing to reinstate any of its employees, or in any
other manner discriminating in regard to their hire or tenure of
employment, or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise'of the right to self-organization, to form
labor organizations, to join or assist Federal Labor Union #23510,
A. F. of L., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to W. M. Shikle immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to
his seniority and other rights and privileges;
(b) Make whole W. M. Shikle for any loss of pay he may have
suffered by reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to the amount which he
normally would have earned as wages during the period from the date
of the respondent's discrimination against him to the date of the
Intermediate Report herein, and during the period from the date of
this Order to the date of the respondent's offer of reinstatement, less
his net earnings during such periods;
(c) Post immediately in conspicuous places throughout its Birm-
ingham (Southside) plant, including the guard houses or other prem-
ises at which its guards or watchmen are customarily stationed, and
maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating: (1) that the
respondent will not engage in the conduct from which it is ordered
to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that
the respondent will take the affirmative action set forth in paragraphs
2 (a) and (b) of this Order; and (3) that its employees are free to
remain or become members of l[i'ederal Labor Union #23510, A. F.
of L., and that the respondent will not discriminate against any
employee because of his membership in or activity on behalf of that
organization ;
(d) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
INGALLS IRON WORKS COMPANY 1207
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the respondent has discriminated
in regard to the hire and tenure of employment of C. R. Roy and R. H.
Bailey.
Mn. GER.nRD D. REILLY took no part in the consideration of the
above Decision and Order.
INTERMEDIATE REPORT
Mr. Mortimer H. Freeman, for the Board
1l1r. D. TV. Strickland and Mr. Ormond Sonieiville, both of Birmingham, Ala.,
for the respondent.
Ali lvalter L. Mitchell, of Birmingham, Ala, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed by Federal Labor Union #23510, A. F.
of L, herein called the Union,' the National Labor Relations Board, herein
called the Board, by the Acting Regional Director for the Tenth Region (Atlanta,
Georgia), issued its complaint, dated February 21, 1944, against Ingalls Iron
Works Company, Birmingham, Alabama, herein called the respondent, alleging
that the respondent had engaged and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (3) and Section
2 ((i) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the
Act Copies of the complaint, accompanied by notices of hearing, were duly
ser ed upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in sub-
stance: (1) that the respondent discharged W. M. Shikle on or about August
8, 1943, C. R. Roy on August 13, 1943, and R. H. Bailey on August 24, 1943, and
thereafter refused to reinstate them because of their membership in and activity
on behalf of the Union and because they engaged in concerted activities with
other employees for their mutual aid and protection, thereby discriminating in
regard to their hire and tenure of employment and discouraging membership in
the Union, and (2) that by the foregoing conduct and, since March 1, 1943, by
uiging, persuading, threatening, and warning its employees to refrain from
joining, assisting, becoming or remaining members of, the Union, by interrogating
its employees concerning their concerted activity and the activity of other em-
ployees, and by obstructing and impeding union organization, the respondent
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
0 i March 1, 19-44, the respondent filed its answer, denying that it had engaged
in- the unfair labor practices alleged and averring that Roy had resigned his
position and that Shikle and Bailey had been discharged for incompetence and
i iolation of working rules.
Pursuant to notice, a hearing was held at Birmingham, Alabama, from March
G to 11, 1944, before Robert F. Koretz, the undersigned Trial Examiner duly des-
ignated by the Chief Trial Examiner. The Board and the respondent were rep-
resented by counsel and the Union by a representative; all participated in the
hearing. Full opportunity to be heard, to examine and cross-examine witnesses,
I At the opening of the hearing the undersigned granted a motion, to which there was
no objection, to amend the pleadings and other formal papers to set forth the name of
the Union as appears above.
1208 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to introduce evidence bearing on the issues was afforded all parties. Shortly
after the commencement of the hearing, the undersigned denied a motion by
the respondent to strike the charge and dismiss the complaint on the ground, in
substance, that the acts alleged in the charge, and the complaint occurred prior
to the time that the Union was chartered by the American Federation of Labor
At the close of the hearing, counsel for the Board moved to conform the pleadings
to the proof respecting formal matters. There was no objection ; the motion
was granted. At the conclusion of the hearing, counsel for the Board and for
the respondent argued orally before the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The respondent, Ingalls Iron Works Company, is a Delaware corporation,
having its principal office and place of business at Birmingham, Alabama. At
its Birmingham plant the respondent is engaged in fabricating structural steel
and ship sections. In the course of its business at this plant, the respondent
annually uses raw materials, including steel, valued in excess of $2,500,000, a
substantial portion of which is shipped from points outside the State of Alabama
to its Birmingham plant. The respondent annually ships 'finished products
valued in excess of $5,000,000 to points in States other than Alabama.
The respondent admits that it is engaged in commerce, within the meaning
of the Act.
II. THE ORG ANIZATION INVOLVED
Federal Labor Union #23510. A. F. of L, is a labor organization affiliated
with the American Federation of Labor. It admits to membership guards em-
ployed by the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
Since 193'7 the respondent has been a party to collecti%e bargaining agree-
ments governing terms and conditions of employment of employees at the plant
here involved,' which is known as the Southside plant. All these contracts have
excluded from their provisions the respondent's watchmen or guards! The last
of such agreements, which was executed on April 12, 1943, and which remained
in effect for one year, provides that International Association of Bridge, Struc-
tural and Ornamental Iron Workers and its chartered affiliate Shopmen's Local
No. 539, hereinafter called Local 539, shall be the exclusive representative of all
employees, except watchmen, clerical employees, inspectors, and certain super-
visory employees; and that the agreement "does not include or affect the Inter-
ests of" the excepted classifications of employees.
At all times material herein the respondent has employed 16 guards at the
Southside plant They are enrolled as Auxiliary Military Police.
2 Front 1937 until about 1941 , the parties to these agreements were the respondent and
Steel Workers Organizing Committee. On February 19, 1941, the Board certified Inter-
national Association of Bridge , Structural and Ornamental Iron Workers , Shopmen Local
#539 , affiliated with the American Federation of Labor, as the exclusive representative
of all employees at this plant , excluding, among others , watchmen . Matter of The Ingalls
Iron Works Company , Southside Plant, 29 N. L R. B. 156, 160 . Since 1941 , the respondent
has contracted with such certified representative
Throughout the record the terms "watchmen" and "guards" are used interchangeably.
INGALLS IRON WORKS COMPANY 1209
In the latter part of February 1943, Guards Roy, Shikle, Henderson, Blanken-
ship, and Crabtree, having heard rumors that the guards were entitled to cer-
tain "back time" payments and desiring to obtain wage increases, went to the
Regional Office of the Wage and Hour Division of the Department of Labor at
Birmingham to inquire about these matters. They were informed that, in order
to obtain wage increases, it would be necessary to form an organization of
guards and to appoint a committee therefrom to deal with the respondent. These
guards then discussed the matter among themselves and with other guards and
decided that a letter should be written. Henderson drafted the following letter
under date of February 27, 1943, addressed to the Regional Director of the
Wage and Hour Division :
DEAR SIR: We the undersigned Watchmen at Ingalls Iron Works, and at
Birmingham Tank company would like to know if we are elegible (sic) for
the five cents back time which they have paid.
We are getting $87 50 per month and have been promised a raise but have
not received it as yet.
We would-4ike an increase in wages to a living standard.
The letter was left on the desk at the gate house, which is the headquarters
of the guards. It was signed first by Shikle, who was stationed at the gate
house during his shift. As other guards came to the gate house, Shikle referred
to the letter. Fifteen of the guards at the Southside plant signed the letter.
After this, Shikle took the letter to the plant of The Birmingham Tank Com-
pany, a division of the respondent located about 7 or 8 miles from the South-
side plant' The letter was signed by four guards at the Birmingham Tank
Company. One of the four, D. H. Meharg, showed the letter to J. P. Fulton,
chief of the guards at both the Southside plant and the Birmingham Tank Com-
pany plant. Meharg told Fulton that he had erased his name, that lie felt that
any request for a wage increase should be presented first to Fulton, and that he
wanted Fulton to take the letter since he did not wish to retain possession of
it. Fulton gave the letter to R. C Palmer, assistant to the vice president of the
respondent. Shortly thereafter, Fulton told Guard Crabtree that he wished the
employees had discussed the matter with hun before drafting and circulating
the letter. Crabtree replied that the letter had been drafted with the under-
standing that Fulton was not to know about it. According to Shikle, Fulton
asked him who first had signed the letter and who had brought it to the plant of
Birnnnghain Tank Company. Shikle replied that he had done so, observing that
Fulton should know that he had signed first, inasmuch as Fulton had the letter.
Fulton then said, according to Shikle's further testimony, that he wished the
employees had spoken to him before writing the letter, because he had to appear
before Ingalls, an official of the respondent, the next day and this would "get
him in bad." Although Fulton denied that he had discussed the letter with
Shikle, the undersigned does not credit his denial. Shikle's version of the con-
versation is consistent with the attitude admittedly expressed $y Fulton in his
conversation with Crabtree, and with Fulton's testimony that lie felt that he
had been slighted by the action of the employees regarding the letter. The
undersigned accepts the foregoing testimony of Shikle as true.`
4 See Matter of Birmingham Tank Company , Division of The Ingalls Iron Works Com-
pany, Inc., 25 N. L. R . B. 1306.
' When first called as a witness by counsel for the Board , Shikle testified that Fulton
had also stated that every man who signed the letter would "be turned out the front
gate. " Asked by Board counsel , "Who made that statement ?", he relied that Crabtree
and Henderson had said that Fulton made this statement , but that he had never made
it to him. Thereupon , on motion of the respondent 's counsel , this testimony , as to what
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Interference, restraint, and coercion
About May or June several of the guards started to discuss organization for
collective bargaining purposes. Among them were Shikle, Roy, Bailey, Hender-
son, Blankenship and Whatley Sometime in July, Captain Davis, an officer of
the United States Army who drilled the guards, addressed them concerning
their right to organize for the purpose of collective bargaining. He read the
following portion of a circular issued by the War Department concerning Auxil-
iary Military Police:
Auxiliary Military Police are permitted to bargain collectively, but no such
activity will be tolerated which will interfere with their obligations as
members of the Auxiliary Military Police. In view of recent decisions by
the National Labor Relations Board (see In re Lord Mfg Co. & United Rubber
Workers of America, CIO, Case No. R-4820), February 1943), the Auxiliary
Military Police should be represented in collective bargaining with the man-
agement by a bargaining unit other than that composed of the production
and maintenance workers, although both bargaining units may be affiliated
with the same labor organization. Where the guards are not now included
in the same bargaining unit, this is mandatory ; where the guards are in-
cluded in such unit, serious consideration will be given to effect a change to
conform to, the foregoing policies.
Nearly all the guards construed this statement to mean that they could not join
Local 539, which is generally referred to in the record as "the shop union." a
Chief Fulton stated on this occasion that he thought the contract between the
respondent and Local 539 provided that they could not join the latter union.
Shortly after Captain Davis' talk to the guards,,Fulton approached Palmer
and Donald Strickland, general counsel of the respondent, stated that he was
confused as to the organizational rights of the guards, asked to see the contract
between the respondent and Local 539, and requested advice on the matter.
According to Strickland's testimony, he showed Fulton the provisions of the
contract excluding watchmen, advised "that while the guards could not be
represented by the same committee or in the same unit as represented the pro-
duction and maintenance employees, they could be represented by the Iron
Workers Union or any other union as a separate unit," and told Fulton that "I
(lid not want to hear of his saying anything to any guard or acting in any way
to discourage them in their rights to form a union or join any union that they
wanted to, except that I did tell him that they were excluded from the contract
with the Iron Workers Union covering production and maintenance employees"
According to Fulton's testimony, Palmer and Strickland informed him that the
guards were excluded from the contract, that they consequently could not "affili-
ate with the shop union," but that they could form a "union of their own." While
the undersigned credits Strickland's testimony as to the advice which he gave
Fulton, it is cleat from Fulton's testimony and from the findings set forth below
that Fulton understood the statements of Palmer and Strickland to mean that,
Crabtree and Henderson told Shikle, was stricken. Shikle, when recalled in rebuttal,
again testified that Fulton had said "every man that signed it was going to be turned
out the front gate." In view of the fact that Shikle's testimony on, this point on direct
examination was stricken as hearsay, and it is evident that this testimony in 'rebuttal was
based on the same information, the undersigned does not accept Shikie's uncorroborated
hearsay testimony on rebuttal.
B Of all the guards who testified concerning Captain Davis' statement, only two, Blanken-
ship and Butler, correctly construed the statement to mean that the guards were free to
join any union which they desired, but that they must be represented as a separate bargain-
ing unit. -
iNGALLS IRON WORKS COMPANY 1211
by reason of the terms of the contract between the respondent and Local 539,
the guards did not have the right to join Local 539'
On August 3, following the completion at about noon of a drill, 11 of the guards,
including Roy, Shikle, Bailey, Henderson, Denman, and Butler, gathered outside
the plant and proceeded toward downtown Birmingham to meet one Coleman, an
organizer for the American Federation of Labor. When they arrived at a certain
street corner they were met instead by an employee of the respondent, who was a
shop committeeman of Local X39. This employee presented the 11 guards with
blank membership application cards in the American Federation of Labors Each
of the eleven signed. Blankenship, who was on duty at this time, signed a
membership cai d on the following day
The organizational effort of the guards soon came to the attention of Chief
Fulton. When Roy reported for work at 6 p in. on August 3, Fulton asked him
whether the guards had gone to the union hall after the drill. Roy replied that
they had not Fulton then asked how many had joined "the union." Roy replied
that he did not know. Fulton remarked that he did not wish to see the guards
"get into anything that didn't do [them] any good " 10
Within a few days after August 3, Fulton spoke to several of the other guards,
who had signed membership cards, concerning their organizational activity.
Some 2 or 3 days after August 3, he asked Butler if hejenew how many of the
guards had joined "the union" and, after Butler had replied in the negative, said
that Strickland had stated that all who "joined the union was automatically fired
according to the contract." " Shortly after August 3, Fulton asked Denman how
many of the guards had `Joined the union." stated that it was "against the shop
contract to join the union" and that all those who had done so "automatically
cease to be a watchman," and suggested that Denman see Palmer and Strickland
about the matter ". About the same time Fulton told Blankenship that,"all guards
' Fulton ' s testimony also reveals a lack of understanding of the distinction between
"unit" and "union'
9 These cards state • " I hereby join The American Federation of Labor and agree to be a
member of my proper Union I designate and authorize the American Federation of Labor
to represent me for the purpose of collective bargaining in all matters pertaining to wages,
hours and workiii conditions . .
0 About the middle of August application was made to the American Federation of Labor
fora chatter The application was received on August 17 and the Union 's charter was
issued on September 1
10 The findings as to this conversation are based upon the testimony of Roy Although
Fulton testified that he did not learn of the organizational effort of the guards until about
the middle of August , his testimony in this respect reflected a lack of definite recollection,
and is not credited by the undersigned
31 In so finding, the undersigned has accepted Butler's testimony Fulton testified that
in the latter part of August he had had 2 oi 3 discussions with Butler about "the union"
and that he had told Butler that the respondent had "no objections to him joining the
union, that is excluding the shop union , they couldn 't join that On January 5, 1944,
at the request of Fulton, Butler signed a written statement , which had been prepared by
Fulton , reading, inter alia• "Mr . Fulton has never mentioned Union to me or told me
that I could not join any union " On February 21, 1944 , Butler signed a written state-
ment in which lie stated , inter alie, that "Neither Mr Fulton nor any other person
connected with the company nn a supervisory capacity , has said anything to me against
unions " In view of Milton ' s testimony concerning his conversations with Butler , and the
consistency of the statements attributed by Butler to Fulton with the other statements of
Fulton set forth below , the undersigned is convinced that , notwithstanding the written
statements executed by Butler in January and February 1944 , Butler ' s testimony set
forth in the text is ti tie
12 These findings are based upon Denman's testimony . Fulton 's testimony concerning
the conversation did not differ materially except that he testified that he used the term
"shop union" rather than " union " in stating that the guards could not join It is plain
from Denman ' s testimony that Fulton was in fact referring to the "shop union," whether
or not lie so stated The undersigned so finds
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that joined the union would be automatically fired," and that he did not think
"the union" would do him "any-good."
Fulton had a similar conversation with Henderson He told Henderson that
the guards could not join "the union" because of the contract with "the shop
union . . . prohibiting it" and that any guard who joined "the union" would he
"automatically out of a job as a watchman." Fulton suggested that Henderson
"have a talk" with Palmer or Strickland about this."
Within a few days after Fulton's conversations with Penman. Blankenship, and
Henderson, Fulton again approached them" He asked them to state what lie
had said in the previous conversations. After they had done so, Fulton stated
that they had misunderstood his statements. He explained that he had referred
to "the shop union" in these conversations and had meant to convey that they
could not join "the shop union" because of the terms of the contract which
excluded them and that they would automatically (-ease to be guards or watchmen
if they joined "the shop union." He also stated that they N^ ere free to join any
other union
The foregoing statements of Fulton to Denman, Butler, Blankenship and
Henderson to the effect that the guards were precluded by the agreement between
the respondent and Local 539 from joining the latter union, and that if they
joined they would automatically cease to be guards, were contrary both to the
terms of the contract and to principles established by the Board While the said
agreement limits, by the exclusion of guards and other classifications of em-
ployees the unit in which Local 539 is recognized, there is nothing in the agree-
ment which might be construed to prohibit the guards from joining Local 539
and being represented by this union as a separate bargaining unit.16 The Board
has held that militarized guard are free to select any representative of their own
choosing, but that, because of the peculiar nature of their duties and the special
obligations imposed upon them, they should not be merged in a unit with other
employees but should be established as a separate bargaining unit 16 While the
undersigned is convinced that Fulton's statements resulted from a genuinely mis-
taken belief as to the organizational rights of the guards, it is nevertheless clear
that these statements plainly indicated that the guards would be discharged
if they joined the Union, and constituted interference, restraint and coercion in
the exercise of rights protected by the Act" Fulton's interrogation of Roy,
13 In making these findings, the undersigned has accepted only that poi tion of Hender-
son's testimony which was not controverted by Fulton in any material respect, except
that Fulton testified that be used the term "shop union" instead of "union" in stating
that the guards could not join The undersigned finds that Fulton in fact referred to
the "shop union," whether or not he so stated
Henderson testified that a few days after the above-mentioned conversation Fulton
reprimanded him for "worrying" the watchmen "about the union ," and stated that Hen-
derson, Blankenship and Denman were "doing everything against" him that they could.
At this point counsel for the Board asked Henderson whether Fulton had asked him to
quit on this occasion Henderson denied this and told of another occasion upon which
Fulton allegedly had urged him to quit. On cross-examination Henderson denied that
Fulton had urged him to quit on the latter occasion and testified that Fulton had done
so at the time lie reprimanded Henderson for "worrying" the watchmen "about the
Union." Under these circumstances, the undersigned does not accept Uenderson's testi-
mony that Fulton reprimanded him for "v orrying" the watchmen or that Fulton accused
him. Blankenship, and Denman of "doing everything against'' him that they could.
14 Fulton testified that "one of the guards" had told hint that "some of the guardq"
had made certain statements to a representative of the Board and that this caused him
to speak again to Denman. Blankenship, and Henderson
36 See Matter of Chrysler Motor Parts Corporation, 55 N L. R B, 709; Cf. Matter of
General Motors Corporation , 51 N L It . B., 1366; Matter of Packard Motor Car Company,
47 N L. R B 912
16 Matter of Dravo Corporation, 52 N I, R B 322.
11 Matter of Budd Wheel Company, 49 N. L. It. B. 1350.
INGALLS IRON WORKS COMPANY 1213
Butler, and Denman concerning their union activity and his statements to Roy
and Blankenship to the effect that organization would secure them no advan-
tages, were also violative of the Act.
The undersigned finds that by Fulton's interrogation of, and statements to,
Roy, Butler, Denman, Blankenship, and Henderson, the respondent has in-
terfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
C. The alleged discriminatronn in regard to hire and tenuie of employment
The complaint alleges that the respondent discharged W. If. Shikle on August
8, 1943, C. R Roy on August 13, and B. H. Bailey on August 24, and thereafter
refused to reinstate them because of their membership in and activity on behalf
of the Union and because they engaged in concerted activities with other em-
ployees In its answer, the respondent avers that Roy resigned his position and
that Shikle and Bailey were discharged for incompetence and violation of work-
ing rules.
As set forth above, Shikle, Roy, and Bailey were among the group of 11 guards
who signed union membership cards on August 3. While Shikle, Roy, and Bailey
previously had discussed the advantages of organization with other guards, there
is no showing that they, or any one of them, had played a more prominent role
in the organizational effort than had several other guards. Their testimony, as
well as the testimony of other witnesses for the Board, establishes that Denman,
Henderson, Blankenship and one or two other guards were at least equally active
to their efforts to organize the guards.
William. Shikle was employed as a guard by the respondent on September 1,
1939, and worked in this capacity until his discharge on August 8, 1943. Shikle
was stationed at the front or main gate of the plant during his shift, which ex-
tended from 10: 00 p. in. to 6: 00 a. m. on 3 nights each week and from midnight
to 6:00 a. m. on 3 other nights. It was Shikle's duty, among other things, to
check the identification badge or pass of employees as they entered the plant and
to prevent anyone from entering without such identification.
As stated above, Shikle and several other guards signed union membership
cards on the afternoon of August 3. He did not work on the night of August 4.
On, the night of August 5, Chief Fulton who frequently came to the plant at
various hours to inspect the work of the guards,1$ arrived at the plant about the
time at which employees were starting to enter for work on the third shift. He
watched Shikle in the performance of his duties from vantage points near the
main gate for several minutes. According to Fulton's testimony, Shikle, instead
of standing at the gate, remained inside the gate house, which is next to the gate,
while employees were passing through the gate. Fulton explained that it was
possible when inside the gate house to observe employees who walked into the
plant, but that it was not possible properly to identify employees who entered
the plant in automobiles. Fulton testified that he was not satisfied with Shikle's
performance and that he therefore returned t9 the plant on the following night,
August 6. On this occasion he again watched Shikle from a point near the gate
for several minutes. According to Fulton, Shikle again remained inside the
gate house as employees entered the plant. On the following night, August 7,
Fulton, because he "just wanted to make sure" that Shikle was not properly per-
foi wing his work, observed Shikle for over an hour Fulton testified that Shikle
again remained in the gate house as the employees entered the plant. Fulton
also testified that he observed Slnkle smoking in contravention of the respond-
ent's rule prohibiting all employees from smoking while on duty.
18 Fulton does not have regular hours of work.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shikle admitted that he had smoked while on duty. hit denied that he had
smoked on the occasions about which Fulton testified. He did not deny that he
had remained inside the gate house during the periods about which Fulton tes-
tified. Shikle admitted that at times he had checked employees both in automo-
biles and on foot from inside the gate house, but maintained that he had required
that everyone, including those who entered in automobiles, show him his badge
or pass. From the foregoing, the undersigned credits the testimony of Fulton as
to his observation of Shikle. The undersigned also credits Fulton's testimony
that it was, not possible properly to identify all employees from this position 19
His testimony in this regard is corroborated by that of H G Wyatt, a guard, who
occasionally substituted for Shikle, and by that of R. H. Davis, a guard, who
occasionally assisted in checking employees at the gate. Wyatt and Davis tes-
tified that, although it was possible when inside the gate house to identify em-
ployees who walked into the plant and those seated on the left side of an auto-
mobile entering the plant, it was not possible properly to identify other occu-
pants of an automobile.
Fulton's observation of Shikle on each of the three nights was without his
knowledge. After observing Shikle on the third successive night, Fulton ap-
proached him at about 11:30 p. m In the course of the conversation which
followed, Fulton stated that he had received complaints concerning the manner
in which Shikle had been checking the employees entering the gate, told Shikle
that he had not checked properly the employees who had entered the plant in auto-
mobiles, stated that this conduct was "very unsatisfactory," and pointed out
that the respondent was performing "critical war work." Fulton also stated that
Shikle knew that it was against the rules to smoke. Fulton said that he would
call Shikle the next morning2'0 During the conversation, Fulton left Shikle and
asked Guard Davis, who was passing, whether Shikle had checked employees in
automobiles from inside the gate house. Davis said, "Yes, that's the way he
checks them in."
On the following day, August 8, Fulton telephoned Shikle and told him that
he was discharged Two or three days later Shikle received a teimination slip
setting forth "neglect of duty" as the reason for his discharge.
On August 31, Fulton discharged George Hisey, a guard stationed at the main
gate, after having observed from the main office on three successive mornings
that Hisey was not properly checking employees entering the gate.
From the foregoing facts, considered in the light of the entire record, the under-
signed is of the opinion that the evidence fails to establish that Shikle was
illegally discharged or refused reinstatement. It has been found above that on
three successive nights Fulton observed Shikle engaging in conduct which gave
just cause for a belief that Shikle was not properly performing his duties. In
addition thereto, Shikle had smoked while on duty in violation of a rule which had
been in effect for several years and of which, the evidence shows, Shikle was
aware.` Although the guards and other employees frequently violated the no-
18 The gate house is a structure 10 feet long and 9 feet, 6 inches wide. Immediately
east of the gate house is a walk about 6 feet wide . East of the latter walk , and separated
therefrom by a post about 2 feet square , is the driveway through which automobiles pass.
This driveway is 24 feet wide. Inasmuch as one side of the gate to this driveway is kept
closed at night, automobiles enter the plant on the side of the road nearest the gate
house.
20 The findings as to what Fulton said are based mainly upon Fulton ' s testimony, which
the undersigned credits . Fulton ' s testimony concerning his statements on this occasion
was not contradicted in anv material respect by the testimony of Shikle
21 A set of rules , which included a prohibibtion against smoking while on duty, was
posted in the gate house . Although Shikle denied that he had seen these rules, his testi-
mony otherwise reveals that he knew it was against the rules to smoke while on duty.
INGALLS IRON WORKS COMPANY 1215
smoking rule, it is plain that they did so outside the presence of their superiors.
Fulton testified that he had not observed Shilcle smoking and that no one had
told him of this prior to the events leading to Shikle's discharge. In the absence
of any persuasive evidence to the contrary, the undersigned credits Fulton's
testimony.'2
It is true that there are circumstances which raise doubts concerning the
legitimacy of Fulton's motives in discharging Shikle. Thus, after more than
3 years of apparently satisfactory service by Shikle, Fulton undertook intensive
scrutiny of Shikle's` conduct 2 days after he had signed a union membership
application. And, despite his long tenure, Shikle was discharged without prior
reprimand 'or warning. However, in the absence of a showing that Shikle was
especially prominent nn the organizational effort of the guards,2i and in view of
the fact that another guard was discharged following similar scrutiny of his work
by Fulton, the undersigned does not consider these facts sufficient to establish
that Shikle's discharge was motivated by anti-union considerations.
The undersigned finds that W. M Shikle was not discharged or refused rein-
statement because of his membership in or activity on behalf of the Union or
because he engaged in concerted activities with other employees.
Clay Rod/ was employed as a guard by the respondent on October 23, 1942. As
found above, he was one of the guards who signed a union membership application
on August 3, 1943.
On August 10, Roy, who had been working on the night shift, was transferred
to the day shift. He was instructed by Fulton that it was his duty to patrol
the plant and report to, or telephone, the gate house once each hour. As Roy was
making his first patrol of the plant on this day, he noticed that a part of the
plant fence located near the pickling plant building was down. At the conclusion
of the patrol, he reported this to Fulton. The latter said that he would report
this to the supervisor of the millwrights. According to Fulton's testimony, he
told Roy to remain in the vicinity of the broken fence as much as possible in'thei
course of his patrols Roy denied that Fulton had given such instructions, but
admitted that lie realized that the broken fence was an important'matter.^ The
undersigned credits Fulton's testimony.
On the morning of August 13, Roy informed Fulton that the portion of the
fence was still down and that he saw no use in patrolling the rest of the plant
While the fence was in this condition. Fulton replied that he had reported the
matter and that this was all that he could do.
At about 1 p. in. on this day, while making his patrol, Roy came to the back
gate of the plaint, which was in the area guarded by Blankenship This point is
approximately 940 feet from the broken fence. About 200 feet from the back
'gate, which is left open except on Sundays, is another gate through which trains
enter the plant property. When Roy arrived, Blankenship was letting trains
in at the latter gate. According to Roy's testimony, he watched the back gate
for approximately 15 or 20 minutes until Blankenship returned and then left at
once on his patrol. Fulton testified that as he was nearing this part of the
plant on an errand he noticed Roy approach Blankenship, that Roy and Blanken-
22 Although Fulton's testimony indicates that Shikle would not have been discharged if
violation of the no-smoking rule had been his only dereliction , the undersigned believes
that this infraction did contribute in some measure to Fulton 's action in discharging
Shikle.
23 In finding that Shikle 's discharge was not violative of the Act, the undersigned has
considered the' statements which Fulton made to Shikle about March 1 concerning the
latter 's activity in connection with the letter to the Regional Director of the Wage and
Flour Division of the Department of Labor, but is of the opinion , after considering the
circumstances surrounding the incident and the lapse of time thereafter , that it did not
enter into Fulton 's determination to discharge Shikle.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship sat and talked for about 40 minutes, that Blankenship then proceeded to
open the train gate, and that Roy then left. Blankenship, who was called as a
witness by the Board, testified that Roy remained at the back gate for about 20 or
30 minutes while he, Blankenship, was letting trains in, and also testified that
thereafter he and Roy had a conversation, after which the latter left. Blanken-
ship could not recall how long the conversation lasted. From the foregoing, the
undersigned credits Fulton's testimony that he had observed Roy and Blanken-
ship engaged in conversation for about 40 minutes.
Shortly after Roy left Blankenship, he was approached by Fulton, who asked
what he had been doing. Roy stated that he had been watching the back gate
while Blankenship was letting trains in the other gate. Fulton asked why Roy
hiid not stayed in the vicinity of the fence which was down, as he had instructed.
Roy stated that he had received no such instructions. Fulton then stated that
he was tired of the way some of the employees were acting. Roy replied that if
Fulton was not satisfied with his work, he would quit on August 15,' two days
later, and that he had intended to quit on August 15 in any event. Fulton then
told Roy that his work had been satisfactory. According to Roy, Fulton stated
that he would not give Roy a chance to resign, and that they were going to
Palmer's office, where he would give Roy his "time". According to Fulton, after
he had told Roy that his work had been satisfactory, Roy reiterated that he
intended to quit on August 15. Fulton testified that he then told Roy that in
view of his intention to quit, he need not wait until the 15th, and that he could
quit at once. Roy replied, according to Fulton, that he would quit "right now".
whereupon Fulton suggested that they see Palmer. Fulton's version of this
portion of the conversation impresses the undersigned as more plausible than that
of Roy and accordingly is credited. In the course of the conversation, Roy told
Fulton that another guard had told him that Fulton had transferred Roy to the
day shift in order to get rid of him. Fulton branded the statement a lie, and
asked Roy to name the guard. Roy refused.
When Fulton and Roy reached the office, Palmer was not present Fulton then
approached Strickland and told Strickland what had occurred. Roy again told
Fulton that he intended to quit on August 15 in any event. Fulton replied that
if he intended to quit "anyway" he need not wait until the 15th. > Strickland and
Fulton testified that the former stated that Roy would have to make up his own
mind as to whether or not he would quit; that after some hesitation Roy stated
that he would quit then; ' and that Strickland then told Fulton to give Roy a
clearance slip marked "resigned." According to Roy's direct testimony, Fulton
told Strickland that. he and Roy "had had an argument and that [Roy] wanted to
resign, so he was going to give" Roy his discharge. Roy further testified that
Fulton asked Strickland what to do about the matter, that Strickland told,Fulton'
to suit himself, and that Fulton said he was going to discharge Roy. On cross-
examination, Roy admitted that he told Strickland that he intended to resign
on August 15 and, when asked whether Strickland had stated that he would have
to make up his mind as to whether he would stay until the 15th or quit then,
replied, "It might have been like that." Roy also admitted that Strickland had
to]d Fulton to mark Roy's clearance slip "resigned", and that he had received a
slip thus marked The undersigned finds that the testimony of Strickland and
Fulton as to what occurred is true.
Shortly after Roy's departure, Fulton approached Blankenship and told the
latter that Roy had quit and that he regrettted this because Roy was "a -good
man."
z1 When asked at the hearing whether he had so stated. Roy answered, "Why, sure,
I knowed I would get fired anyway."
INGALLS IRON WORKS COMPANY 1217
The undersigned is satisfied and finds that C R. Roy quit his employment on
August 13, 1943, and that he was not discharged or refused reinstatement be-
cause of his membership in or activity on behalf of the Union or'because he
engaged in concerted activities with other employees.
Robert Bailey was employed as a guard on May 24, 1943; he was discharged
on August 23. As found above, he was one of the guards who signed a union
membership card on August 3. _
When Bailey was hired, he was instructed by Chief Fulton that it was his
duty to pull at fixed times certain American District Telephone Company boxes,
hereinafter called ADT boxes, located in various parts of the plant; zs to
remain at the template shop, in which inflammable templates and patterns are,
stored, while another guard was making his patrol ; and to prevent anyone-
from smoking in the template shop. At this time Fulton stressed the im-
portance of pulling the ADT boxes on time, pointing out that there was a
fixed time for pulling each box and that if a box were pulled late, it might
coincide with the pulling of a box by some other guard, thereby making it
impossible for the American District Telephone Company to ascertain whether
both boxes had been pulled or which box had been pulled. According to Fulton,
he told Bailey, in accordance with his usual practice when hiring a guard, that
the respondent's rules prohibited smoking while on duty. Bailey denied that
he had, been instructed not to smoke while on duty, except in the template
shop, and testified that he had never seen the rules which, as heretofore stated,
were posted in the gatehouse. However, when asked on cross-examination
whether lie had ever been warned or asked not to smoke, he replied, "Nothing
more than we just talked about not smoking there amongst us guards." Ac-
cording to the testimony of Guard Henderson, which the undersigned credits,
he asked Bailey, prior to the latter's discharge, whether he knew it was against
the rules to smoke while on duty, whereupon Bailey replied, "Yes, but I smoke
all of the time." From the foregoing, the undersigned deems it unnecessary
to determine whether Fulton instructed Bailey not to smoke, since it is plain,
and the undersigned finds, that Bailey at all times material herein knew that
it was against the respondent's rules to smoke while on duty
Bailey was assigned to work between the hours of 11 p. m and 6 a. in. On the
third aught of his employment, Bailey was 14 minutes late in starting upon a
round of ADT boxes Upon investigation of the delinquency by the American
District Telephone Company,26 Bailey stated that he merely had overlooked the
time When Fulton learned of this, he cautioned Bailey not to let it happen again.
About a week before Bailey's discharge, as Bailey was standing in the door of
the iron works shop, Fulton passed and asked which way Guard Denman had
gone. While following Fulton for a few steps, Bailey stated that Denman must
have gone to the gate at which he was stationed. Bailey testified that he -was
smoking during this conversation and that Fulton made no comment in this
regard. Bailey did not recall whether his cigarette was in his hand or mouth
while talking to Fulton. Bailey testified, "If he didn' t see me smoking my
cigarette, it had just fallen, because I didn't try to hide it." Fulton stated that
he had never seen Bailey smoking while on duty until the night prior to Bailey's
25 When a guard pulls an ADT box, it automatically registers on a teletype tape in the
Birmingham office of the American District Telephone Company. The tape registers a
:Horse code svnibol from which the checl-ei can ascertain which box has been pulled and
at what time The checker then records the box number and the time on the checker
slips.
^ If an ADT box is pulled mole than 10 minutes late, the American District Telephone
Company calls the gate house to ascertain the reason for the delay, and thereafter informs
the respondent of its investigation of the matter
009591-45-vol 58 78
1218, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge. The undersigned considers Bailey's testimony insufficient to warrant
a finding that Fulton had observed Bailey smoking until immediately before
Bailey was. discharged, under the circumstances set forth below.
At about 12: 30 a. in. on August 23, Bailey was sitting and smoking at a point
about 30 feet from the template shop. Fulton approached him and asked whether
he did not know that it was against the rules to smoke. Bailey said that he did
not know this and told Fulton that he had been smoking "all the time " Fulton
stated that this was the first time he had seen Bailey smoking and asked whether
Bailey knew of the rules posted in the gate house and the instructions which Ful-
ton had given in this regard when Bailey was hired Bailey said that he did not.
Fulton stated that it was against the rules to smoke and that Bailey knew this
Bailey stated that other guards smoked. When Fulton asked who they were,
Bailey replied that Fulton would "have to catch them like he caught me." Bailey
told Fulton that he would try to stop smoking, and that if he could not do so,
he would quit his job. At the close of the conversation Fulton left, stating that
he would return shortly
Fulton left shortly before 1: CO a in, the time fixed for Bailey to pull his first
ADT box. After Fulton left, Bailey sat down and engaged in conversation with
other guards until after 1: 00 a. in. Bailey then jumped up and proceeded to
make his round, pulling his first box about 8 minutes late and the second box
about 4 minutes late. He pulled the four remaining boxes on time. When he
returned from his round, Fulton was awaiting him. Fulton stated that Bailey
had been late Bailey acknowledged this. Fulton then asked, what excuse he had.
Bailey said that he had none and that he had "overlooked the time." Bailey
testified that Fulton then asked whether he had joined "the union" ; that he
replied that he had "signed -a card to that effect" ; th-it Fulton asked. "Didn't
you know you couldn't, belong to the shop union"? that he, Bailey, replied. "We
know that" ; that Fulton then stated that he was "in favor of the union if it is
run right ; that Fulton asked, "What do you guards want?; that he replied
that "we want the best working conditions that we can get" ; that Fulton next
said, "You won't get no more money" ; that as Fulton was leaving lie stated that
he would "rather" that Bailey quit. to which Bailey replied, "I have never been
fired, but I'll not quit" ; and that Fulton concluded by stating that he would
speak to Palmer and let Bailey "know in the morning " Fulton denied that he
had engaged in any conversation with Bailey concerning union matters. Fulton
testified that, after Bailey had stated that he had "overlooked the time," be told
Bailey that the latter knew the importance of pulling the boxes on time; that
Bailey previously had been warned about delinquency in this regard ; that he,
Fulton, did not know now whether Bailey had pulled boxes at the same time
as another guard; that he was "not satisfied" with Bailey's delinquency in pulling
boxes or with his smoking while on duty; and that he would call Bailey in the
morning.
Frederick Atelier, a Field Examiner of the Board, testified that on January
8, 1944, while investigating the instant case, he examined Fulton, in the
presence of Strickland, concerning the matters contained in affidavits signed by
Bailey and other employees. According to Aicher's testimony, Fulton denied
that he had stated on August 23, 1943, that he would "rather" that Bailey quit,
admitted that "there was certain union talk," but stated that he only had told
Bailey that he could not join "the shop union." Aicher's testimony as to what
occurred on this occasion was not contradicted, and is credited by the undersigned.
Thus, Fulton's denial of Bailey's testimony was partially discredited by his
admission to Aicher. Bailey's testimony is also supported by the consistency of
INGALLS IRON WORKS COMPANY 1219
his testimony with the statements which , the undersigned has found , Fulton
made on other occasions . On the other hand , Bailey's entire testimony was
rendered doubtful of credence by his lack of candor concerning his knowledge of
the rule against smoking while on duty ; in particular , his denial of knowledge
of the rule was discredited by the- testimony of Henderson , a member of the
Union who was called as a « itness by the Board. Under these circumstances, and
notwithstanding the impeachment of Fulton , the undersigned cannot accept the
uncorroborated and controverted testimony of Bailey Since Fulton's testimony
as to what he told Bailey after the latter stated that he "overlooked the time" is
consistent with preceding events . it is credited by the undersigned.
On the following morning, Fulton telephoned Bailey and informed him that
lie was discharged Shortly thereafter , Bailey received a clearance slip which
set forth that he had been discharged for "running late on pulling boxes and
smoking on the job."
The undersigned is of the opinion that the evidence fails to establish that
Bailey ' s discharge was motivated in whole or in part by anti-union considerations.
As found above , Bailey was not especially outstanding in union affairs , nor does
the evidence show that Fulton believed that such was the case . As further found
above , on August 23 Fulton found Bailey smoking in violation of the respond-
ent's rule , of which, despite his denial , Bailey was aware. Finally , on the same
night, Bailey, after having previously been warned concerning his deliquency
in, pulling ADT boxes, again was delinquent without good cause In this con-
nection, it was established that several guards were warned after their first
delinquency in pulling ADT boxes that they would be discharged for the next
offense and that certain guards were discharged for repetition of delinquency in
this regard 24
The undersigned finds that R H. Bailey was not discharged or refused rein-
statement because of his membership in or activity on ,behalf of the Union or be-
cause he engaged in concerted activities with other employees.
1V. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in con-
nection with the operations of the respondent described in Section I above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor prac-
tices, 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 has not discriminated in regard to the
hire and tenure of employment of W. Al. Shikle, C. It. Roy, and R. H. Bailey.
It will therefore be recommended that the allegations of the complaint in this
regard be dismissed.
21 Although such other guards completely failed to pull ADT boxes , instead of merely
pulling them late, the undersigned is unable to perceive any substantial distinction be-
tween these two forms of delinquency . Other guards were not discharged after such
delinquency on two or more occasions , but they furnished satisfactory explanations for
their conduct.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Federal Labor Union #23510, A. F. of L., 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 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 (1)
of the Act.
3 The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
4. The respondent has not discriminated in regard to the hire or tenure of
employment of W. M. Shikle, C. R. Roy, or It. H Bailey, within the meaning of
Section 8 (3) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Ingalls Iron Works Company, Birming-
ham, Alabama, and its officers, agents, successors, and assigns, shall:
1 Cease and desist from in any manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization, to forum
labor organizations, to join or assist Federal Labor Union #2310, A. F. of L'
or any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid of protection as guaranteed in Section
7 of the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act:
(a) Post immediately in conspicuous places throughout its Birmingham (South-
side) plant, including the premises occupied by its guards or watchmen '23 and
maintain for a period of at least sixty (60) consecutive days from the date of
posting, notices to its employees stating that the respondent will not engage in
the conduct from which it-is recommended that it cease-and desist in paragraph
1 of these recommendations ;
(b) Notify the Regional Director for the Tenth Region in writing within tee
(10) days from the date of the receipt of this Intermediate Report what steps
the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Di-
-rector in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
And it is further recommended that the complaint be dismissed insofar as it
alleges that the respondent has discriminated in regard to the hire and tenure of
employment of W M. Shikle, C. R Roy, and R. H. Bailey.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, any party
or counsel for the Board may within fifteen (15) days from the date of the
entry of the order transferring the case to the Board, pursuant to Section 32
of Article II of said Rules and Regulations, file with the Board, Rochambeau
28 Matter of Budd Wheel Company, 49 N. L. R B 1350.
INGALLS IRON WORKS COMPANY 1221.
Building, Washington, D C., an original and four copies of a statement in writing
setting forth such exceptions to the Intermediate Report or to any other part
of the record or proceeding (including rulings upon all motions or objections)
ais he relies upon, together with the original and four copies of a brief in support
thereof. Immediately upon the filing of such statement of exceptions and/or
bi iet, the party or counsel for the Board filing the same shall serve a copy thereof
Upon each of the iotlier parties and shall file a copy with the Regional Director.
_%s further provided in said Section 33, should any party desire permission to
argue orally before the Board request therefor must be made in writing to the
Board within ten (10) days from the date of the order transferring the case to
the Board.
ROBERT F. KORF.T7,
Dated June 27, 1944. Trial Examiner.