Kennametal, Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1948

80 N.L.R.B. 1481 (N.L.R.B. 1948)

In the Matter of KENNAMETAL , INC. and WALTER E. SAXTON, PAUL
L. BENGEL AND EVAN A. LLOYD
Case No. 6-C-116,5.-Decided December 29, 1948
DECISION
AND
ORDER
On April 23, 1948, Trial Examiner Henry J. Kent issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent has engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report attached
hereto.' The Trial Examiner also found that the Respondent had
not violated Section 8 (3) of the Act by discharging the three com-
plainants herein because of their membership in or activities on behalf
of the United Steelworkers of America and recommended that this
allegation of the complaint be dismissed.
Thereafter, the Respondent filed exceptions to the Intermediate
Report, and a supporting brief. The Respondent also requested oral
argument. Because the record and the exceptions and brief, in our
opinion, adequately present the issues and the positions of the parties,
the request for oral argument is hereby denied.
The Board 2 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the following modifications and additions.
The Trial Examiner found, and we agree, that the Respondent
violated the Act by discharging employees Saxton, Bengel, and Lloyd,
' Section 8 (1) and ( 3) of the National Labor Relations Act, which the Trial Examiner
found were violated , are continued in all respects here material in Section 8 (a) (1) and
(3) of the Act, as amended.
2 Pursuant to the provisions of Section 3 (b) of the Act, as amended , the Board has dele-
gated its powers in connection with this case to a three-man panel consisting of the
undersigned Board Members [ Reynolds , Murdock , and Gray].
80 N. L. R. B., No. 233.
1481
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because they participated in a work stoppage at the plant on January
31, 1947. On that day, at about 10 a. m., a group of from 70 to 100
employees, including the 3 complainants, with Saxton as their spokes-
man, left their work in order to request a wage increase of McKenna,
the Respondent's president. Before reaching the latter's office, As-
sistant Plant Superintendent Lennon stepped out of his office to
ascertain what was going on. Saxton told Lennon that they wished
to speak to McKenna regarding wages. Lennon replied, "Let's get
back to work. This isn't being handled properly." Lennon also sug-
gested that a few of the group should return and he would arrange
a meeting with McKenna. Thereupon, Saxton asked the group if
they wanted to return to work and they announced, in unison, "No."
Lennon then told the employees to go to the cafeteria where McKenna
would meet with them. As the group was proceeding to the cafe-
teria it was joined by others; nearly 225 employees were assembled
there when McKenna appeared. McKenna told them that the Re-
spondent was in no position to grant a wage increase, suggesting that
the employees appoint a small committee to meet with him. This sug-
gestion was acceptable to the employees and they returned to work.
On February 7, 1947, a committee of 17 employees and McKenna
met and discussed wage rates of other similar companies. McKenna
told the committee that if business conditions improved, the employees
would be given a raise. No further meeting was held between the com-
mittee and the Respondent. Meanwhile, by February 4, Hudgins, the
plant superintendent, had completed an investigation to determine
the responsibility for the work stoppage and on the basis of this in-
vestigation the 3 complainants were discharged on February 11, 1947.3
The Respondent contends that the above-described work stoppage
was not protected by the Act, largely on the grounds (1) that the
Respondent was under no obligation under the Act to entertain any
grievance during working hours and (2) that the employees refused
to return to work when requested by Assistant Plant Superintendent
Lennon. We find no merit in these contentions. That the Respondent
could have refused to meet with the employees during working hours
is immaterial , for the real issue involves the right of employees to
engage in a work stoppage to compel the Respondent to entertain their
grievance . We think it clear, as found by the Trial Examiner, that the
work stoppage here involved, which was unaccompanied by any form
8 Like the Trial Examiner , we credit the Respondent 's reason for its delay in effecting
the discharges The Respondent explained that because of the bargaining conference
which was already scheduled for February 7, it was deemed unwise to discharge the com-
plainants until after the committee , which included Saxton, Bengel , and Lloyd, had a
reasonable opportunity to make a report to the other employees regarding the results
of the February 7 meeting.
KENNAMETAL, INC. 1483
of violence, constituted a form of concerted activity fully protected by
the Act 4 It therefore follows that the employees were privileged to
ignore Lennon's plea that they return to work and to continue their
concerted activity until the Respondent agreed to meet with them.
Any other view would nullify the right to strike as guaranteed by the
Act.'
We accordingly find that the discharge of Saxton, Bengel, and Lloyd,
because of their participation in the work stoppage, constituted inter-
ference, restraint, and coercion, within the meaning of Section 8 (1),
as well as discrimination in regard to hire or tenure of employment,
within the meaning of Section 8 (3). Whether the discriminatory
conduct is viewed as a violation of Section 8 (1) or 8 (3) of the Act,
we find that effectuation of the policies of the Act requires that the
complainants be offered reinstatement with back pay,6 as recommended
by the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section (10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Kennametal, Inc.,
Latrobe, Pennsylvania, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its em-
ployees by discriminating in regard to the hire or tenure of employ-
ment of its employees, 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 join
or assist any labor organization, to form labor organizations, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargain-
ing 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 Walter E. Saxton, Paul L. Bengel and Evan A. Lloyd
immediate and full reinstatement to their former or substantially
' See N L. R B v. American Manufacturing Company, 106 F (2d) 61, 67-68 (C. A. 2) ;
N. L R B. v Tovrea Packing Company , 111 F. ( 2d) 626, 629 (C. A. 9)
5In view of the Respondent's position that its defense is not based on any infraction
of a plant rule that employees must not leave their work without first obtaining permis-
sion from their supervisor , we find it unnecessary to adopt the Trial Examiner's finding
with respect to this issue.
6 See Matter of (Tibbs Corporation , 74 N. L . R. B. 1182, 1193; Matter of Spencer Auto
Electric, Inc., 73 N. L. R. B . 1416, 1419.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivalent positions, without prejudice to their seniority and other
rights and privileges;
(b) Make said employees whole for any loss of pay they may have
suffered by reason of the discrimination against them, by payment to
each of them 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
discrimination against him to the date of the Respondent' s offer of
reinstatement, less his net earnings during such period;
(c) Post at its plant in Latrobe, Pennsylvania, copies of the notice
attached to the Intermediate Report, marked "Appendix A." T Copies
of the notice, to be furnished by the Regional Director for the Sixth
Region, shall, after being duly signed by the Respondent's representa-
tive, be posted by it immediately upon receipt thereof, and maintained
by it for sixty (G0) consecutive days thereafter, in conspicuous places,
including all places where 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) Notify the Regional Director for the Sixth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
AND IT IS FIIRTIIER ORDERED that the complaint, insofar as it alleges
that Saxton, Bengel, and Lloyd were discharged because of their
membership in or activities on behalf of the United Steelworkers of
America, be, and it hereby is, dismissed.
INTERMEDIATE REPORT
W. G. Stuart Sherman, Esq. and Erwin Lerten, Esq., for the General Counsel.
William B. Paul , Esq. and John C. Hill, Esq., of Pittsburgh , Pa., for the
respondent.
S. Harold Grossman , Esq., of Tarentum , Pa., for the complainants.
STATEMENT OF THE CASE
Upon an amended charge filed on August 20, 1947 , by Walter E . Saxton, Paul
L. Bengel, and Evan A . Lloyd, herein at times referred to as the complainants,
the General Counsel,1 by the Regional Director for the Sixth Region ( Pittsburgh,
Pennsylvania ), issued a complaint , dated January 13, 1948 , against Kennametal,
Inc., Latrobe , Pennsylvania, herein called the respondent , alleging that the re-
spondent has engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (3) and/or Section 8 (a)
' Said notice, however, shall be, and it hereby is, amended by striking from line 3 thereof
the words "The recommendations of a Trial Examiner" and substituting in lieu thereof
the words "A Decision and Order." In the event that this order is enforced by decree of a
United States Court of Appeals, there shall be inserted in the notice, before the words "A
Decision and Order," the words "A Decree of the United States Court of Appeals En-
forcing."
1 The designation includes specifically counsel presenting the case on behalf of the General
Counsel at the hearing.
KENNAMETAL, INC. 1485
(1) and (3), and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, as amended by Labor Management Relations Act, 1947,2 herein
called the Act. Copies of the complaint, the charge, and notice of hearing were
duly served upon the respondent and the complainants.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent (1) on February 11, 1947, discriminatorily discharged the
complainants 3 and thereafter failed and refused to reinstate them because of
their membership in, and activities on behalf of, the United Steelworkers of
America, herein called the Steelworkers, and/or because they engaged in con-
certed activities with other employees for the purpose of collective bargaining
and other mutual aid and protection, and (2) by the above acts the respondent
did interfere with, restrain and coerce its employees in the exercise of their
rights guaranteed in Section 7 of the Act. The complaint further alleged that
by the foregoing conduct, the respondent engaged in violations of Section 8 (1)
and (3) and/or Section 8 (a) (1) and (3) of the Act as amended.
On or about February 2, 1948, the respondent filed an answer admitting the
allegations in respect to its business operations, but denying that it had committed
any unfair labor practices as alleged. In addition, it affirmatively averred that
the complainants were discharged for their complicity and leadership in a work
stoppage occurring in its plant on January 31, 1947, and for violation of an
established rule requiring employees to obtain permission from their department
supervisors before leaving their place of work to go to other departments of the
plant.
Pursuant to notice, a hearing was held at Greensburg, Pennsylvania, on
February 9 and 10, 1948, before Henry J. Kent, the undersigned Trial Examiner,
duly designated by the Chief Trial Examiner.
The General Counsel, the respondent and the complainants were represented
by counsel. Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded all parties.
At the close of the case the General Counsel, by his representatives, moved
that the pleadings be conformed to the proof in respect to formal matters. The
motion was granted without objection. Except for brief oral argument offered
by the General Counsel, argument was waived by the parties. Counsel for re-
spondent was granted 15 days to file a brief and thereafter was granted leave to
file a supplemental brief by March 25, 1948, by the Chief Trial Examiner. His
briefs have been duly received and considered by the undersigned.
Upon the entire record, and from his observation of the witnesses, the under-
signed makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Kennametal, Inc., a Pennsylvania corporation with its main office and plant
at Latrobe, Pennsylvania, is engaged in the production, manufacture, sale and
distribution of cemented carbide products. It maintains sales offices in various
States of the United States of America. During the year of 1947, the respondent
purchased for use at its plant, raw and other materials with an approximate
value of $1,000,000, of which about 70 percent was shipped to the Latrobe plant
from points outside of the Commonwealth of Pennsylvania. During the same
year, the value of its manufactured products was approximately $4,000,000, of
2 June 23, 1947, Public Law, 80th Congress, Chapter 120, 1st Session.
3 Walter E. Saxton, Paul L. Bengel , and Evan A. Lloyd.
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which about 80 percent was shipped to points outside of the Commonwealth of
Pennsylvania. Currently, it employs about 500 persons at its plant.
The respondent concedes that it is subject to the Board's jurisdiction.
II. THE ORGANIZATIONS INVOLVED
United Steelworkers of America , affiliated with the Congress of Industrial
Organizations , is a labor organization admitting to membership employees of the
respondent.`
III. THE UNFATR LABOR PRACTICES
A. Labor relations background and sequence of material events 5
Respondent's plant has been in operation for about 8 years. During the war
emergency approximately 800 rank-and-file employees were working. Shortly
after V-J Day production materially dropped and the working force was reduced
to about 400 employees and many of those continuing at work were obliged to ac-
cept jobs paying less wages than they formerly had earned. Presently about 500
employees are working.
Insofar as the record shows, the first organizational activities began in the
fall or winter of 1945, when District 50, United Mine Workers of America began
an organizational campaign. In connection therewith, District 50 filed a petition
for certification of representatives with the Board. A consent election con-
ducted on February 11, 1946, resulted in the dismissal of the petition because
District 50, the only union participating, failed to secure a majority of the votes
cast.
In the fall of 1946, District 50 renewed its organizational activities. A second
petition for certification of representatives was filed by District 50 and a hearing
was held thereon by the Board on November 6, 1946.
While the case was still pending before the Board, rumors of an imminent wage
cut circulated in the plant together with other rumors that employees in other
plants had received wage increases following strikes. About 10 o'clock on the
morning of January 31, 1947, about 7 or 8 employees in the machine shop gathered
in a group near the water fountain and engaged in a discussion concerning wages.
One of the group suggested that they go out on strike in order to obtain wage in-
creases, but Walter Saxton, one of the complainants herein, who had joined the
group, proposed that they first seek an interview with Phillip McKenna, the
respondent's president, and request wage increases. Saxton's proposal met with
approval and the group then proceeded to leave the department in a body to ask
for a meeting with President McKenna.' On the way to McKenna's office, some
of them stepped into other plant departments to announce their purpose to em-
ployees working there. As a result of these activities about 50 or 60 employees
4 Although District 50, United Mine Workers of America, unaffiliated, is not named as an
interested party in the complaint or answer, the record shows that on February 18, 1947, (7
days after Saxton, Bengel, and Lloyd had been discharged) the Board after an earlier
hearing held on a petition filed by the District 50, ordered an election to determine
whether or not the employees desired to be represented by District 50 (Matter of Kenna-
metal, Inc., et at ., 72 N. L. R. B. 837 ). In this same order and decision , the Board denied
a motion filed by the Steelworkers on February 12, 1947, seeking a place on the ballot.
District 50 won the election, was certified as bargaining agent for the employees and there-
after, on May 25, 1947, signed a collective bargaining agreement with the respondent.
5 There is no substantial disagreement in respect to the findings made below In this
section, except where expressly noted.
B Donald Pottinger, the machine shop foreman , was absent from the department during
these activities.
KENNAMETAL, INC. 1487
were members of the group by the time it reached the company offices in the
plant. After the group arrived there, Assistant Plant Superintendent Lennon
stepped out of the office to ascertain what was going on and the group delegated
Saxton to act as spokesman. Saxton told Lennon they wished to speak to Presi-
dent McKenna regarding wages. Shortly thereafter, Lennon told them to go
to the cafeteria after ascertaining that McKenna would meet with the employees.
Many more employees joined the group when it was on its way to the cafeteria
and nearly 225 were assembled there when President McKennan appeared.
McKenna told them the respondent would be unable to increase wages unless ad-
ditional orders were received and production increased. He then suggested that
the employees appoint a small committee to represent them and said he would
meet with the committee after work on that same day. The employees returned
to work and 17 of the employees were selected to act as representatives, by the
employees in the various departments, at departmental meetings held during
working time on that same day. Saxton was chosen to serve as chairman of the
"representatives' committee." At 3: 30 on the same afternoon, after the end of
the day shift, the employees' committee met with President McKenna and other
management representatives. The employee representatives, who lacked skill in
bargaining negotiations, were unprepared with figures to show that wage rates
at the plant were lower than those prevalent in the area or the industry. Little
progress was made at this meeting and arrangements were made to hold another
meeting after work on February 7, 1947, when both committees would presumably
be better prepared to discuss wage rates.
In the interim the employee representatives realized they lacked capacity to
gather information regarding wage rates . For some undisclosed reason they did
not seek aid from District 50. After work on Monday, February 3, 1947, most
of the employee representatives met in the plant cafeteria.7 At the meeting,
Saxton proposed that they invite officers of a Steelworkers' Local Union, the
bargaining agent for the employees at the "First Sterling" plant, McKeesport,
Pennsylvania, to come to Latrobe and advise them regarding wage rates paid at
that plant. A hall was rented in Latrobe for the night of Wednesday, February
5, 1947, to hold a meeting in. The representatives were requested by Saxton to
extend oral invitations to employees in their various departments to attend the
meeting.' Saxton invited members of the Steelworkers at the McKeesport plant to
attend the meeting and seven or eight members of the Steelworkers including Paul
Hilbert, the president of the local union, responded to the invitation and were
present The McKeesport group told those present what the wage rates were on
certain job operations at their plant and there was a discussion regarding compa-
rable rates for similar jobs in the respondent's plant. Hilbert had a supply of
Steelworkers' cards and invited the respondent's employees to join that Union.
Many of them signed the Steelworkers' application cards that night and additional
blank cards were handed to the various employee representatives present.
Saxton, Bengel and Lloyd, the three persons named in the complaint as dis-
criminatory dischargees, claimed that they and other employee representatives
openly solicited fellow employees to sign Steelworkers' cards in the plant during
working hours on February 6, 7, 10 and 11, 1947. No direct and convincing evi-
' On the following day , Personnel Manager Demangone called Saxton to the office and
told Saxton that the employee representatives should not hold their meetings in the
cafeteria.
8 About 50 rank -and-file employees of the respondent and most of the employee representa-
tives , except Evan Lloyd, one of the complaining disehargees, attended the meeting. Lloyd
signed an application card for the Steelworkers on February 6, the following day.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dence was offered at the hearing tending to show that the respondent had actual
knowledge of these activities or that it had interfered in any way with organiza-
tional activities of District 50,0 or the Steelworkers. On the other hand, all wit-
nesses called by the respondent, including certain of the respondent's officials,
Foreman Don Pottinger, foreman in charge of the machine shop where Saxton,
Bengel and Lloyd were employed, and three other departmental foremen denied
having any knowledge regarding organization on behalf of the Steelworkers
among the employees until February 12, 1947, the day after Saxton, Bengel and
Lloyd had been discharged. In view of the pending representation case involving
District 50, and Saxton's earlier outstanding activities on behalf of District 50,
it is entirely conceivable that the respondent would have attributed such activities
to District 50 as some of the witnesses claimed to have done. Accordingly, the
undersigned credits respondent's denial regarding lack of knowledge of Steel-
workers' activities at that time.
On February 12, the Steelworkers filed a motion with the Board seeking to
reopen the representation hearing initiated by the filing of a petition by District
50, which hearing had previously been held on November 6, 1946.
On February 18, 1947, the Board issued its Decision and Direction of Election
in the said case denying a motion filed by the Steelworkers on February 12, 1947,
to reopen the hearing, also denying the request by the Steelworkers that it be
named on the ballot, and ordered an election to determine whether or not re-
spondent's employees desired to be represented by District 50.10
At an election held on March 13, 1947, District 50 received a majority of the
ballots cast 11 No objections were thereafter filed and on March 24, 1947, Dis-
trict 50 was certified by the Board as statutory representative for the employees.'r
Thereafter, on May 25, 1947, the respondent signed a collective bargaining con-
tract with District 50.
B. The issues
Upon the basis of the foregoing facts the General Counsel contends that Walter
Saxton, Paul Bengel and Evan Lloyd were discharged on February 11, 1947 (1)
because of their membership in and activities on behalf of the Steelworkers, and
(2) in the alternative, because they engaged in concerted activities with other
employees for the purposes of collective bargaining and other mutual aid and
protection, thereby discouraging membership in labor organizations in contraven-
tion of Section 8 (3) and 8 (1) of the Act"
Regarding the first contention raised above by the General Counsel, the re-
spondent denies having had knowledge of any organizational activities at the
plant on behalf of the Steelworkers until February 12, 1947, the day after Saxton,
Bengel and Lloyd were discharged, when it received a copy of a motion filed by
9 The record, in addition, shows that Saxton was recording secretary of a District 50^
local after the local was established, that the respondent had knowledge of his activities
on behalf of the organization, that he and Bengel were members of the organizing com-
mittee for District 50 during its second campaign, and that their solicitation of members
for that organization was carried on more or less openly during working time at the plant
without objection by the respondent.
10 See Matter of Kennametal, Inc., 72 N. L. It. B 965.
11 The Tally of Ballots indicates that there were 321 eligible voters in the unit, that
186 were cast for District 50, that 119 votes were cast against it, and that there were
4 challenged ballots.
12 The unit found to be appropriate embraced all hourly-rated production and main-
tenance employees, including cafeteria employees and leadmen.
11 It is noted that the complaint does not allege any independent violations of Section
8 (1) of the Act.
KENNAMETAL, INC. 1489
the Steelworkers "In the Matter of Kennametal, Inc., Employer and District 50,
United Mine Workers of America." " Although a suspicion may be aroused that
the respondent received information regarding the Steelworkers ' activities before
the three employees were discharged , several officials and major supervisors of
the respondent in their sworn testimony credibly claimed that the decision to
discharge the three employees was made on February 4, 1947, before any Steel-
workers' activities commenced, and that they lacked knowledge of such activities
that thereafter may have occurred until after the discharges were effected.," The
testimony of the respondent 's witnesses regarding this matter was not convinc-
ingly discredited or impeached at the bearing . Basing his conclusion upon his
observation of these witnesses , the undersigned believes them to be reliable and
trustworthy and he accepts their testimony in respect to this matter as credible 16
Upon all of the foregoing and the entire record, the undersigned finds that the
first contention urged by the General Counsel has not been sustained by the proof.
The second contention urged by the General Counsel is that Saxton, Bengel,
and Lloyd were discriminatorily discharged for engaging in protected concerted
activities. The respondent, on the other hand, asserts that their leadership and
activities in connection with the January 31, 1947, work stoppage were unlawful
activities not protected by the Act and contends that they were lawfully dis-
charged for their leadership in those activities. The undersigned does not agree.
The foregoing facts clearly show that there had been dissatisfaction among
the employees at the plant regarding wages for some time before January 31,
1947. On this morning, 7 or 8 of the employees in the machine shop left their
work and gathered in a group to discuss ways and means to obtain wage in,
creases.37 Insofar as the record shows, Saxton , Bengel and Lloyd were not pres-
ent when the group first gathered there, but Saxton and Lloyd observing that
there was more or less excitenient among the group went over to ascertain the
cause. Some unidentified member of the group then suggested they go out on a
strike because he had heard that employees at other plants had secured wage
increases by adopting such tactics . Saxton then proposed that they first seek an
interview with the respondent's president, Phillip McKenna. Another unidenti-
fied member of the group then said, "Let's go [now] and talk to Mr. McKenna,"
and this proposal met with approval. Before leaving the department they an-
nounced to the other employees in the machine shop that they were leaving to
talk with President McKenna concerning wage increases and invited the others
to go with them. Most of the employees in the department joined them. As
they were proceeding through the plant on the way to the plant offices Saxton,
admittedly, stepped into one or two of the other departments of the plants and
invited employees in those departments to join the plan. Many of these em-
ployees did so and the group then proceeded , in a quiet and orderly manner, to go
to the plant offices. About 60 employees were in it by the time it arrived at the
14 On February 12, as noted above, the Steelworkers filed a motion with the Board to
reopen the representation hearing previously held on November 6, 1946 ( 72 N. L. R. B.
837) and requesting a place on the ballot if the Board ordered an election.
15 There was no direct evidence offered at the hearing tending to show actual knowledge
upon the part of the respondent regarding these claimed activities before the discharges
were effected.
16 See N. L R. B. v. Tex-O -Kan Flour Mills, 122 F . ( 2d) 433; N. L. R. B. v. Citizen
News Co, 134 F (2d) 970, 973 (C. C. A. 9).
17 On this occasion , according to the testimony of Foreman Pottinger , also known as
the departmental manager of the machine shop, Pottinger was absent from the department
at the time and knew nothing about what was transpiring until he was informed that a
large number of the plant employees had left their work to go to the plant office.
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hall outside the plant offices. Assistant Plant Superintendent Lennon was noti-
fied of their presence there and stepped out of his office to ascertain the purpose
of the gathering. One of those present announced that Saxton would speak for
them. Saxton then stepped forward and said they wanted to discuss wage in-
creases with President McKenna. After getting in touch with Mr. McKenna,
Lennon requested them to go to the cafeteria and said McKenna would talk with
them there. On the way to the cafeteria many other employees joined them
and approximately 225 of the 300 employees on the shift were present in the
cafeteria when McKenna arrived. Saxton again acted as spokesman for the-
employees present. He told McKenna there was dissatisfaction among the men
regarding wage rates, and said that they desired wage increases. McKenna on
replying said that wages could not be increased unless production was raised
and more orders for products received. McKenna then requested that they
return to work, after suggesting that they appoint a committee to speak for all of
them, and said that he and other management representatives would meet with
such a committee later on that same day. The employees immediately returned
to work. During the same day, as noted above, 17 employee representatives were
chosen by employees in the various departments and Saxton was selected by these
representatives to serve as chairman of the "employee representatives' commit-
tee." This committee met with the management representatives at 3: 30 o'clock
on the afternoon of that same day and again at 3: 30 o'clock on the afternoon of
February 7, 1947. As might be expected, because the employee representatives
lacked experience in bargaining procedures and also lacked capacity to gather
sufficient salient facts concerning wage rates in competing plants in order to
present convincing arguments why wage increases should be granted, the em-
ployees' committee was unprepared to submit any proposal to management at
either of these two meetings, the only ones ever held, and consequently nothing
was gained by holding them.
In the interim, General Plant Superintendent Hudgins, who had been absent
from the plant on January 31, returned on February 3. The respondent claims
that Hudgins immediately upon his return started an investigation to ascertain
who was responsible for the January 31 work stoppage, that after talking with
various supervisors and employees in the plant Hudgins and other management
representatives concluded that Saxton, Bengel, Lloyd and employee Kelly Hurd
were the leaders responsible for causing the work stoppage, and that on Febru-
ary 4, the respondent decided to discharge these four employees' Respondent,
as an excuse for its delay in not discharging them until February 11, credibly
claims that because another bargaining conference with the employee repre-
sentatives was scheduled to take place after work on Friday, February 7, it was
deemed unwise to discharge these men until after the "employees' committee"
had a reasonable opportunity to make a report to the other employees regarding
the results of the February 7 meeting.'°
Shortly before the end of the day shift on February 11, 1947, Saxton, Bengel,
Lloyd and Hurd were called to the personnel office. General Plant Superintend-
is Hudgins. the then general plant superintendent, who was in charge of the investiga-
tion, is no longer an employee and was not called to testify. These findings are eased
on the testimony given by Assistant Plant Superintendent Lennon who aided Hudgins
in conducting the investigation.
19 It will be noted that Saxton was chairman of the employees' committee and that
Bengel and Llord were members.
KENNAMETAL, INC. 1491
ent Hudgins , Personnel Director Demangone , Assistant Plant Superintendent
Lennon and several of the plant foremen , including Foreman Pottinger, the
immediate supervisor over Saxton , Bengel and Lloyd , were present there. Hudg-
ins told the four employees that he had investigated the circumstances surround-
ing the January 31 work stoppage , that as a result of his investigation he con-
cluded these four employees were responsible for the stoppage , and that lie
was terminating them, because of it, on that day. Hurd remonstrated with
Hudgins, denying that he had taken an active part in the work stoppage and said
he had a wife and three children to support, but the other three men claimed at
the hearing that they were so upset and surprised at the action taken by the
respondent that they interposed no objection.R° Hudgins thereupon told Hurd
he would reconsider his case and Hurd, within a day or two , returned to work,
but Saxton , Bengel and Lloyd were told that their final pay checks were ready for
them and they were terminated . None of them has since been offered reemploy-
ment.
On the basis of the foregoing , the undersigned concludes that the participation
of Saxton , Bengel and Lloyd in the January 31 , 1947 , work stoppage were not
unlawful activities as claimed by the respondent . The evidence clearly shows
a spontaneous quitting of their work by a large number of employees for the
sole purpose of presenting a claimed grievance to their employer regarding
wages. It is true that because of their inexperience in connection with bargain-
ing procedures the employees were unprepared to substantiate their claimed
grievance by factual data and it is understandable that the respondent was
annoyed by the cessation of work for about an hour and a half on the morning
of January 31, occasioned by their action on that day. President McKenna
exercised good judgment in meeting with them and agreeing to negotiate the
matter and in all probability succeeded in averting a strike which may have
caused a more extended shut-down of operations . The course of action taken
by the employees , at most, constituted an economic strike unaccompanied by
violence or other disorder and under these circumstances the respondent was
only privileged to deduct the wages for the time lost by those who participated
in the action a
On all of the foregoing and the entire record , the undersigned concludes and
finds that the participation of Saxton, Bengel and Lloyd in the January 31, 1947,
work stoppage at respondent 's plant constituted protected concerted activities
within the meaning of the Act. Accordingly, he further finds that the respondent,
by discharging and refusing to reinstate Saxton, Bengel and Lloyd for engaging
in lawful concerted activities with other employees for the purposes of collective
bargaining and other mutual aid and protection, has discriminated in regard
to their hire and tenure of employment within the meaning of Section 8 (3)
of the Act, thereby interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
10 Despite the fact that Saxton, Bengel and Lloyd had been continuously employed at
the plant since 1942 , and that their foreman, Donald Pottinger , testified that all of then
had been satisfactory employees before the January 31 work stoppage , Hudgins or Lennon
did not interrogate any of them in connection with the investigation made, but merely
accepted ex paste statement allegedly made by supervisors and other employees
21 Cf Matter of General Motors Corp ., 67 N L . R. B 965; N . L R. B. V. Tovrea Packing
Company , 111 F . ( 2d) 626 , 629 (C C A. 9 ) enf as mod 12 N L . R. B 1063 , cert. den.,
311 U S. 688; Matter of Howard Foundry Co , 59 N . L. R. B. 60; Matter of Union -Buffalo
Mills Company , 58 N. L . R B 384; Texas Textile Mills , 58 N. L. R. B. 352.
817319-49-vol. 80-95
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It follows that such action taken by an employer would clearly tend to dis-
courage membership in a labor organization.
C. Alleged violation of plant rules
As an additional defense, the respondent averred, in its answer , that the
three complainants had violated a certain plant rule ; namely, that they had
violated an established plant rule by leaving their work without first obtaining
permission from their departmental supervisor.
The record shows that no such rule had ever been posted in the plant, that copies
of any claimed rules had never been given to the employees, and that before
February 11, 1947, the date of the discharges involved herein, no employee had
ever been discharged or disciplined for a violation of the claimed rule, except
by way of an occasional reprimand by a supervisor for visiting in departments
where they were not employed. Furthermore, the respondent's counsel plainly
stated shortly before closing his case, as appears on page 362 of the reporter's
transcript, "this case is not based on infraction of the rules." In any event,
the respondent can hardly pick out three of a large number of employees, who
engaged in substantially the same conduct, for summary reprisals without laying
itself open to a charge of discrimination.
IV. THE EFFECT OF THE UNFAIR LA13OR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States , and tend to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor 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.
Having found that the respondent has violated Sections 8 (a) (1) and (3)
of the Act, the undersigned must recommend that the respondent cease and
desist therefrom. These violations, as set forth above, clearly indicate that
the respondent's purpose tends to defeat the exercise by employees of their
rights of self-organization. The respondent discriminatorily discharged Walter
E. Saxton, Paul L. Bengel, and Evan A. Lloyd because of their concerted ac-
tivities with other employees in connection with their efforts to induce the
respondent to grant wage increases. Because of the respondent's unlawful con-
22 In N. L. R. B. V. Tovrea Packing Company, 111 F. (2d) 629 (C. C. A. 9), enforcing as
mod. 12 N. L. R. B. 1063, cert denied 311 U. S 688, the Court sustained the Board 's posi-
tion that action of a group of unorganized employees in submitting a concerted wage
demand to their employer in itself constituted them a "labor organization" within the
meaning of the Act, and that the discharge of an employee for voicing that demand was in
violation of Section 8 (3) and Section 8 (1) of the Act. It follows that by punishing
employees who engaged in concerted action, management discouraged its employees from
continuing to act in concert through any labor organization, as defined by Section 2 (5)
of the Act The term "labor organization" is there defined as "any organization of any
kind . . . in which employees participate and which exists for the purpose, in whole or
in part, of dealing with employers concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or conditions of work"
KENNAMETAL, INC. 1493
duct and its underlying effect, the undersigned is convinced that the unfair labor
practices found are persuasively related to the other unfair labor practices pro-
scribed and that danger of their commission in the future is to be anticipated
from the respondent's conduct in the past." The preventive purposes of the
Act will be thwarted unless the recommendations are coextensive with the threat.
In order, therefore, to make effective the interdependent guarantee of Section
7, to prevent a recurrence of unfair labor practices, and thereby minimize in-
dustrial strife which burdens and obstructs commerce, and thus effectuate the
policies of the Act, the undersigned will recommend that the respondent cease
and desist from in any manner infringing upon the rights guaranteed in Section
7 of the Act.
The undersigned has found that the respondent discriminated in regard to
the hire and tenure of employment of Walter E. Saxton, Paul L. Bengel and
Evan A. Lloyd. The undersigned will therefore recommend that the respondent
offer them immediate and full reinstatement to their former or substantially
equivalent positions,24 without prejudice to their former or substantially equiva-
lent seniority or other rights and privileges, and make them whole for any loss
of pay they may have suffered by reason of such discrimination, by payment
to them of a sum of money equal to that which they normally would have earned
as wages from the date of their discriminatory discharge to the date of the
offer of reinstatement, less their net earnings 2E during such period.
Upon the basis of the foregoing findings of fact, and upon the entire record
In the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization, within the meaning of Section 2 (5)
of the Act.
2. By discriminating in regard to the hire and tenure of employment of Walter
E. Saxton, Paul L. Bengel and Evan A. Lloyd, thereby discouraging the for-
mation of and membership in labor organizations, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8
(a) (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 (a)
(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 in regard to the hire and tenure of
Walter E. Saxton, Paul L. Bengel and Evan A. Lloyd because of their membership
in and activities upon behalf of the United Steelworkers of America.
28 See N. L. R. B. V. Express Publishing Company, 312 U. S. 426; May Department Stores
Company v. N. L. R. B., 326 U. S. 376.
24 In accordance with the Board's consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible , but if such position is no longer in existence , then to a substantially equiva-
lent position ." See Matter of The Chase National Bank of the City of New York, San
Juan, Puerto Rico, Branch, 65 N. L R. B. 827.
25 See Matter of Crossett Lumber Company, 8 N. L. R. B. 440, 497-498.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent , Kennametal , Inc., Latrobe,
Pennsylvania , its officers , agents, successors , and assigns , shall:
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its employees
by discriminating in regard to the hire or tenure of employment of its employees,
or any term or condition of their employment ;
(b) In any other manner interfering with, restraining , or coercing its em-
ployees in the exercise of the right to self -organization , to join or assist any
labor organization , to form labor organizations , to bargain collectively through
representatives of their own choosing , and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act.
(a) Offer Walter E. Saxton , Paul L . Bengel and Evan A . Lloyd immediate
and full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges , and make
them whole for any loss of pay they may have suffered by reason of the dis-
crimination against them , by payment to them of a sum of money equal to
that which they normally would have earned as wages from the date of the
discrimination against them to the date of the respondent 's offer of reinstate-
ment , less their net earnings during such period;
(b) Post at its plant in Latrobe , Pennsylvania , copies of the notice attached
hereto, marked "Appendix A." Copies of the notice , to be furnished by the
Regional Director for the Sixth Region, shall , after being duly signed by the
respondent 's representative , be posted by it immediately upon receipt thereof,
and maintained by it for sixty ( 60) consecutive days thereafter , in conspicuous
places, including all places where 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 ;
(c) Notify the Regional Director for the Sixth Region in writing, within
ten (10 ) days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply therewith.
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 issued an order requiring the respondent to
take the action aforesaid.
It is also recommended that the allegations of the complaint pertaining to
the alleged discriminatory discharges of Saxton , Bengel and Lloyd because
of their membership in or activities on behalf of the United Steelworkers of
America, be dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22 , 1947, any party may, within
twenty ( 20) days from the date of service of the order transferring the case
to the Board , pursuant to Section 203 45 of said Rules and Regulations , file with
the Board , Rochambeau Building , Washington 25, D. C, an original and six
copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report or to any other part of the record or proceeding ( including
KENNAMETAL, INC. 1495
rulings upon all motions or objections) as he relies upon, together with the
original and six copies of a brief in support thereof ; and any party may, within
the same period, file an original and six copies of a brief in support of the
Intermediate Report. Immediately upon the filing of such statement of ex-
ceptions and/or briefs, the party filing the same shall serve a copy thereof
upon each of the other parties. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section 203.85.
As further provided in said Section 203.46, 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 service of the order trans-
ferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections and exceptions thereto shall be deemed
waived for all purposes.
HENRY J. KENT,
Trial Examiner.
Dated April 23, 1948.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT in any manner interfere with , restrain , or coerce our em-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.
WE WILL OFFER to Walter E. Saxton, Paul L. Bengel and Evan A. Lloyd
immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay suffered as a
result of our discrimination.
All our employees are free to become or remain members of any labor or-
ganization. We will not discriminate in regard to hire or tenure of employment
or any term or condition of employment against any employee because of mem-
bership in or activity on behalf of any labor organization, or because he has
engaged in concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
KENNAMETAL, INC.,
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.