Kentucky Firebrick Co.

National Labor Relations Board - Board Decisions

Aug 30, 1937

3 N.L.R.B. 455 (N.L.R.B. 1937)

In the Matter of KENTUCKY FIREBRICK COMPANY and UNITED BRICK
AND CLAY WORKERS OF AMERICA, LOCAL UNION No. 510
Case No. C-179-Decided August 30, 1937
Firebrick Industry : mining and manufacturing-Strike-Employee Status:
during strike-Discrimination : non-reinstatement of union members following
strike; violence during strike cannot be used by employer as excuse for dis-
crimination against union members for union membership and activity-
Rein-statement Ordered, Strikers : discrimination in reinstatement following strike-
Back Pay: awarded from date of denial of reinstatement , excluding period
between intermediate report and decision.
Mr. Philip G. Phillips for the Board.
Knapp, Beye, Allen and Cushing, by Mr. William Beye and Mr.
B. L. Rawlins, Jr., of Chicago, Ill., for the respondent.
Mr. Julius Sehlezinger, of counsel to the Board.
DECISION
STATEMENT OF THE CASE
In December 1935, the United Brick and Clay Workers of
America, Local Union No. 510, herein called the Union, filed a charge
with the Regional Director for the Ninth Region (Cincinnati, Ohio)
against the Kentucky Firebrick Company,-Haldeman, Kentucky, the
respondent herein, charging the respondent with violation of Section
8, subdivisions (1) and (3) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. On March 10, 1936, the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Ninth Region, issued its complaint against the re-
spondent, alleging that the respondent had engaged in unfair labor
practices affecting commerce within the meaning of Section 8, sub-
divisions (1) and (3) and Section 2, subdivisions (6) and (7) of the
Act, in that the respondent had refused to reinstate, following a
strike, 73 of its employees for the reason that they had joined and
assisted the Union and had engaged in concerted activities with other
employees of the respondent for the purpose of collective bargaining
and other mutual aid and protection.' The complaint and accom-
panying notice of hearing were duly served upon the parties.
' The complaint subsequently was amended at the hearing so as to charge a refusal to
reinstate 49 employees and a delay in reinstating 24 other employees. -
455
456 NATIONAL LABOR RELATIONS BOARD
The respondent filed a "Special Appearance and Motion to Dis-
miss", in which it claimed that the Act is unconstitutional and that
the Board has no jurisdiction over the respondent. Reserving all its
rights under the special appearance, the respondent also filed an
answer to the complaint in which it admitted some of the specific acts
alleged, therein but denied that it had engaged in unfair labor
practices.
Pursuant to the notice of -hearing, a hearing was conducted by
Robert M. Gates, the Trial Examiner duly designated by the Board,
on April 6, 7, and 8, 1936. Full opportunity to ' be heard, to examine
and to cross-examine witnesses, and to introduce evidence bearing
upon the issues was afforded to the parties. At the commencement
of the hearing the respondent moved to dismiss the proceeding for
the reasons stated in its special appearance. The Trial Examiner
denied the motion without prejudice to the right of renewal after
the introduction of evidence with respect to the jurisdiction of the
Board. At the conclusion of the presentation of evidence by the
Board's counsel and again at the conclusion of the hearing the re-
spondent renewed its motion to dismiss. The motions were denied
in so far as they pertained to the constitutionality of the Act but the
Trial Examiner reserved decision with respect to the applicability
of the Act to the business of the respondent. The respondent took
exception to this ruling and to various other rulings made by the
Trial Examiner during the course of the hearing. The Board finds
no prejudicial error in any of the rulings of the Trial Examiner, and
they are hereby affirmed. After the hearing the respondent filed
briefs with the Trial Examiner.
Thereafter, on July 29, 1936, the Trial Examiner duly filed his
Intermediate Report. He found that the respondent, following a
strike, had refused to reinstate 30 of its employees and had delayed
the reinstatement of 34 others because such employees had joined and
assisted the Union. He. found further that, by virtue of such acts
the respondent had engaged in and was engaging in unfair labor
practices within the meaning of Section 8, subdivisions (1) and (3)
of the Act. The Trial Examiner concluded, however, that such un-
fair labor practices were not unfair labor practices affecting com-
merce within the meaning of Section 2, subdivisions (6) and (7) of
the Act. No exceptions to the Intermediate Report were filed within
ten days of its issuance and the case was considered closed.
On April 29, 1937, following the decisions of the Supreme Court
of the United States on April 12, 1937, sustaining the constitution-
ality of the Act, a motion to reopen the case was filed in behalf of the
Union. Objections to the motion were filed by the respondent. On
May 17, 1937, the Board, acting pursuant to Article II, Section 36
DECISIONS AND ORDERS 457
of National Labor Relations Board Rules and"Regulations-Series 1,
as amended, granted the motion to 'reopen the 'case. Subsequently,
exceptions to the Intermediate Report were filed by both the Union
and the respondent.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. RESPONDENT AND ITS BUSINESS
The Kentucky Firebrick Company is a Kentucky corporation which
operates at Haldeman, Kentucky, two clay mines and two firebrick
refractories.' The clay is mined both from the property of the Penn-
sylvania and Kentucky Firebrick Company and from the respon-
dent's own property. The respondent sells none of the clay which it
mines but uses such clay in the manufacture of firebrick.
Both machine pressed brick and hand pressed brick are manufac-
tured by the respondent. 'In the manufacture of either type of brick,
labor is the most important factor. About 25 per cent of the bricks
manufactured by the respondent are specially shaped directly upon
the orders of its customers. Special shapes are always hand pressed.
The bricks manufactured ' by the respondent are either loaded into
freight cars for shipment or placed , in a warehouse for storage.
The cars are loaded on a siding owned by the respondent and located
on the respondent's property. ' However, they are' switched by loco-
motives 'of the Chesapeake and Ohio Railway, an interstate carrier,
which enter directly upon the respondent's tracks. All shipments to
and from the plants are handled by the Chesapeake and Ohio. The
respondent supplies most of the business at the Haldeman station of
this railroad. ` '
Firebrick is a very important element in the manufacture of steel.
Because of its heat resisting qualities 'it is used in the lining of open
hearth and other furnaces in steel mills. 'The respondent's market
is wholly dependent upon the condition of,the steel industry.
The Kentucky Firebrick Company is. a wholly owned subsidiary
of the United States Steel Corporation and ' all of its products are
sold to other subsidiaries of that corporation.2 A registration state-
ment 3 filed by the Illinois Steel Corporation with the Securities and
Exchange Commission in 1935 reveals that the respondent and the
Pennsylvania and Kentucky Firebrick Company are the only fire-
brick subsidiaries of that concern and that the refractories at Halde-
man, Kentucky, are the only refractory brick plants owned by any
2 The Pennsylvania and Kentucky Firebrick Company is also a subsidiary of U. S.
Steel.
$ Board 's Exhibit No. 5.
458 NATIONAL LABOR RELATIONS BOARD
subsidiary of Illinois Steel. This same registration statement shows
that the Illinois Steel Corporation, 100 per cent of whose stock is
owned by the United States Steel Corporation, is an enterprise with
assets of over $243,000,000 which owns and operates at South Chicago,
Illinois; Milwaukee, Wisconsin; Joliet, Illinois; and Gary, Indiana,
plants for the production of pig iron, semi-finished and finished steel
products and coke and coke by-products. The Illinois Steel Corpora-
tion owns all of the stock of the Chicago, Lake Shore and Eastern
Railway Company and of the Joliet and Blue Island Railway Com-
pany, railroads owning rights of way between and around South Chi-
cago, Illinois, and Gary, Indiana, and in Joliet, Illinois. These
railroads are leased to the Elgin, Joliet and Eastern Railway Com-
pany, a common carrier.
The respondent's operations at Haldeman, Kentucky, are very
largely controlled by its parent corporation. To such an extent is
this true that D. B. Leadbetter, vice president and general superin-
tendent of the respondent in charge of the Haldeman plants, does not
even know the value of a carload of firebricks. It was frankly ad-
mitted at the hearing that the labor policy of the respondent is
determined in Chicago.
The respondent's products are shipped entirely to points outside
of the State of Kentucky, the vast majority going to the great steel
producing States of Illinois, Indiana, Ohio and Pennsylvania.4 Out
of 1766 carloads of bricks shipped by the respondent in 1934, 1935,
and the first two months of 1936, 1675 were delivered into these four
states. During this same period, none of the respondent's products
were shipped to any point within the state of Kentucky.
All of the raw materials used by the respondent in the manufac-
ture of firebrick are obtained from within the State of Kentucky.
The only purchases made by the respondent in states other than
Kentucky are of machinery and of parts for the repair of machinery.
These purchases amounted to $7,870. 86 in the period from July 1,
1935 to March 1, 1936.6
The respondent's works at Haldeman, Kentucky, a town of only
387 persons, are the sole industry of that community. The respond-
ent owns in and around Haldeman, in addition to its refractories
and mines, 23 of about 70 houses located in that vicinity. It also
owns and operates a company store. Haldeman may be accurately
called, a company town and the Kentucky Firebrick Company, the
life blood of the community.
' A statement read by Mr. Leadbetter at the hearing revealed that shipments during
this period were also made to Alabama , Connecticut , Massachusetts , Minnesota, New
Jersey, and West Virginia.
5 This total consisted of 148 separate purchases . They were shipped to the respondent
from New York , Ohio, West Virginia , Pennsylvania , Illinois, Michigan , and Indiana.
DECISIONS AND ORDERS
II. • THE UNION
459
Local Union No. 510 of the United Brick and Clay Workers of
America is a labor organization, affiliated with the American Fed-
eration of Labor.
III. THE UNFAIR LABOR PRACTICES
A. Background Of relations between the respondent and the Union
1. Events preceding the strike of June 1935
About May 1, 1934, the Haldeman Employees Representation
Plan, herein referred to. as the Plan, was organized by the respondent
among the employees in its Haldeman plants. The Plan appears to
have been dominated by the respondent to a large extent and officials
of the respondent attended some of its meetings.
The domination of the Plan by the respondent and its failure to
secure any benefits for its members resulted in considerable dissatis-
faction among them. In July 1934, many members withdrew from
the Plan and formed the Union. The Union grew rapidly and on
September 27, 1934, it received a charter from the United Brick and
Clay Workers of America.
Early in December 1934, the Union, believing an agreement with
the respondent to be necessary for the safeguarding of the interests
of its members, determined to seek a contract covering hours, wages,
and other working conditions. On December 5 and 7, a committee
of the Union conferred with the respondent's president, L. P. Halde-
man. Mr. Haldeman, however, refused to discuss the matter of a
contract and stated to the committee that it was against the policy
of the respondent to enter into contracts with labor -unions. The
Union thereupon called a strike and the respondent's plants were
forced to close. National guardsmen were called to Haldeman at the
commencement of the strike but no violence occurred and they left
within a few days.
Shortly after the beginning of the strike, the Union filed a com-
plaint with the old National Labor Relations Board. A hearing
was held on January 16, 1935, by the Cincinnati Regional Labor
Board and the respondent was found to have violated Section 7 (a)
of the National Industrial Recovery Act .6 Subsequently, on Febru-
ary 13, 1935, there was a meeting between Mr. Haldeman and the
union committee at which the respondent, although still refusing to
enter into a contract with the Union, offered to post a bulletin of
labor policy covering the matters over which bargaining with the
O Board's Exhibit No. 10.
460 NATIONAL LABOR RELATIONS BOARD
Union had been carried on. ^ The Union accepted this offer and the
strike was called off.
The respondent refused to reinstate Allie Messer, one of the union
members, following the strike. Also,' despite the fact that the re-
spondent's labor policy included an offer to bargain collectively at
all times, the Union soon found it difficult to negotiate with the
respondent concerning various problems which had, arisen. As a
result, in April 1935, the Union filed another complaint with the
old National Labor Relations Board. No hearing on this complaint
was ever held, however, because of the invalidation 'of the National
Industrial Recovery Act.7
2. The strike of June 1935
The Union, believing its position to be less, secure as 'a result of
the voiding of the National Industrial Recovery , Act, determined
again in. June 1935, to seek a• contract with the respondent. A
union committee, conferred with Mr. Haldeman in regard to this
matter on June 17. Upon his refusal to, enter into a contract, the
Union called a strike for the following morning. The strike oc-
curred at a, time when,the respondent's operations were at a low
ebb and the respondent made no attempt to operate its plants for
several months. ,
During the course of the strike the Union tried on several dif-
ferent, occasions to negotiate with the respondent. Mr. Haldeman
left the community at the beginning of the strike, however,, and
the other officials of the respondent stated that they, lacked author-
ity to settle the question in dispute. , For this reason, a trip to Halde-
man, early in July 1935, by P. A., Carmichael of, the Conciliation
Service of the United States Department of Labor .was of no. avail.
An attempt in August or September by Stanley, Mathewson, of
the National Labor Relations Board to arrange a conference be-
tween the respondent„ and the Union proved unsuccessful when the
respondent's vice president stated that a conference was unnecessary.
In September, a rumor spread through Haldeman that the re-
spondent :intended. to reopen its plants under, the protection of the
National Guard. C. , ,S. Stinson, the secretary of the Union, - then
wired the United,States Secretary, of Labor that a serious, situation
would, be created in Haldeman if some branch of, the government
did not intervene. As,, a result, Newcomb Barco of the .Conciliation
Service was sent to Haldeman late in September. He remained for
several. days and held conferences both with the Union and with
various officials of, the, respondent., The respondent informed him
7 Schechter Corporation v. United States , 295 U. S. 495.
DECISIONS AND ORDERS 461
that, it intended "reopening its plants and. offered to .reinstate without
discrimination all of its employees who had not been guilty of vio-
lence or of interfering with the respondent's "necessary operations,
business, or affairs in any illegal manner." 8 This offer was rejected
by the Union with a request that the respondent reveal the names of
the persons who had been guilty of.violence. Upon the respondent's
refusal to reveal such names the Union again rejected the offer.
Seeing no prospect of a settlement Barco then left Haldeman.
During the week of October 7, 1935, the respondent began dis-
tributing cards to those of its employees whom it intended to rehire,
telling them to report back to work. On October 17, the plants re-
opened under the protection of the National Guard. However, the
union members, including those who had received cards, did not
return to work. Committees of the Union held conferences with
officials of the respondent, on October 19 and 26 in which an at-
tempt was made ,by them to persuade the respondent to reinstate
all of its former employees and to leave to the .'civil authorities
the task of determining the persons who had been guilty of illegal
acts. The respondent rejected this proposal.
By this time, after more than four months -of idleness, most of
the union members were in destitute circumstances. As a result, on
October 30, the Union adopted a suggestion by Miss Lockett, an
examiner in the Regional Office for the Ninth Region of the National
Labor Relations Board, that, all persons who had received cards
return to work and that the cases of the other union members be
left to the Board to decide. The following day, the members of the
Union who had received cards reported back to work.
3. The violence
The strike was marked by considerable violence. During the
period in which the plants remained closed and for a short time
thereafter, Haldeman and the region around it were the scenes of
constant shooting and dynamiting. The violence apparently reached
its peak in a battle fought on, the night of August 17, 1935, between
union members on the one side and members of the Plan and com-
pany guards on the other.
No real understanding of the strike of June. 1935, and of the vio-
lence which occurred while it ran its course can be obtained unless it
is borne in mind that the respondent's employees were divided into
two organizations. The Haldeman Employees Representation Plan
had 'lost' only a portion of its members with the formation of the,
Union and at the time of the strike, although no exact figures are
8 Board 's Exhibit No. 13.
462 NATIONAL LABOR RELATIONS BOARD
available, the membership of the Plan seems to have been about equal
to that of the Union. The Union had approximately 135 members.
The community appears to have been divided into two hostile
camps during this period and feeling between the two groups ran
high. The members of the Plan undoubtedly blamed the Union for
the loss of their jobs. The union members, on the other hand, were
no doubt embittered by the fact that each member of the Plan re-
ceived $2.50 per week during the period of the strike.9 Also, the
fact that membership in the two organizations cut across family lines
probably increased rather than decreased the bitterness which had
arisen.
Haldeman is located in the Kentucky hill country. Most of the
men in the section customarily carry guns and in the region sur-
rounding Haldeman there is at all times a considerable amount of
shooting. It was natural, therefore, that the occurrence in this com-
munity of a labor dispute of this character which effectively shut
down its sole industry should be the signal for a violent flare-up be-
tween the opposing groups. The prolonging of the strike and the
tenacity with which it was fought only intensified the bitter feeling
which already existed.
The truly amazing fact which stands out from the mass of testi-
mony concerning the violence is the very slight damage which actu-
ally resulted. No lives were lost on either side and the respondent
admitted that the damage to its property resulting from alleged
illegal conduct amounted to very little. The county judge testified
that, with one exception, the only warrants issued in connection with
the strike were for drunkenness and breach of the peace.
The respondent at no time contended that the illegal and violent
acts which occurred during the strike were solely the fault of union
members. The record clearly indicates that members of both the
Union and the Plan were to blame. In fact, the only persons injured
in the battle of August 17, the most serious outbreak, were union
members.
B. Discrimination
The complaint, as amended, alleges that the respondent refused to
reinstate 49 employees and delayed the reinstatement of 24 others
because such employees joined and assisted the Union. The respond-
ent admitted that 31 union members had been refused reinstatement
but denied that it had either refused to reinstate or delayed the rein-
statement of any employee because of such employee's union activi-
e These weekly payments were received from the Haldeman Employees Representation
Plan. The Plan did not have any dues but Mr. Leadbetter testified that a loan from
the respondent enabled it to make the payments.
DECISIONS AND ORDERS 463
ties. It submitted a statement 1° showing its position with respect
to each of the 73 individuals named in the complaint. In this state-
ment it divided such individuals into the following six classifications :
1. Not to be
Roscoe Adkins
J. R. Bailey
Hazel Christian
Cordie Davis
Ralph Evans
Roland Eldridge
Dave Glover
Squire Hall
W. C. Hogge
Ivan Hogge
William Lewis
Boone Lands
J. E. Messer
Estill Oney
Everett Oney
Frank Pettit
Returned to Employment for Cause
Ersal Parker
D. W. Rakes
C. C. Sparks
Andy Sturgell
Roy Sturgell
James Sturgell
Marvin Sturgell
C. S. Stinson
George Sparkman
C. H. Stamper
William Sammon
Cleo Stewart
W. F. Thomas
Carl White
Silas Wilson
2. Returned to Employment Since October 31, 1935
Zode Adkins
Hollie Adkins
Bannie Adkins
Marion Black
Noah Barker
Noah Caudill
Charles Carter
Lake Estep
Athol Eldridge
Powell Ferguson
Roscoe Ferguson
M. F. Fraley
Lorty Hamm
Marvin Johnson
Virgil Oney
Homer Rice
Allen Roberts
J. H. Stewart
Miles Sturgell
Amos Thompson
Earl Withrow
Herb Withrow
Clyde Wilson
Jake Viars
3. Employees Not Called to Work Because of Their Absence from
Milza Black
Richard Bradley
Frank Christian
Community
A. B. Haynes
W. E. Powers
Willie Stamper
10 Board 's Exhibit No. 7.
464 NATIONAL LABOR RELATIONS BOARD
4. Employees Who are Eligible to Return to Work But Whose
Employment, Numbers Have Not Yet Been Reached
G. W. Fraley Thomas Oney
E. W. Gayheart C. A. Sparks
J. R. Johnson James Stinson
Everett Messer Mose Stamper
James Mabry Rube Thomas
5. Employees Unable to Return to Work Because of Injury or Illness
J. W. Glover
6. Employees Who Refused to Return to Work When Called
J. H. Reynolds
1. Employees not to be returned to employment for cause
Shortly before reopening its plants in October 1935, the respondent
requested James Clay, a Kentucky attorney who had represented it
at various times over a period of 15 years, to conduct an investigation
into the violence which had taken place during the strike with a view
to ascertaining for the respondent the persons who had been guilty of
breaking the criminal laws of Kentucky. Clay testified that during
the course of his inquiry he made five or six trips into Haldeman and
took between 30 and 35 affidavits. On October 14 he wrote a letter 11
to the respondent in which he listed 33 persons who, in his opinion,
had committed felonies during the strike. On October 25 Clay wrote
another letter 12 to the respondent in which he named three additional
persons who had "made most damaging threats against the company
and its property". Thirty of the 36 persons named by Clay were
members of the Union while the other six were not even employees
of the respondent. No member of the Plan was included in the list.
Subsequent to the conclusion of Clay's investigation the respondent
obtained an affidavit with respect to another union member and sub-
mitted it to William Beye, its Chicago attorney. Upon Beye's state-'
ment that in his opinion'the respondent would be justified in not
reemploying such person, that union member also was refused
reinstatement.
Included among the 31 employees designated by the respondent's
attorneys were the vice president, secretary and treasurer of the
Union, as well as most of the members who had served on the various
i1 Respondent 's Exhibit No. 1. '
22 Respondent 's Exhibit No. 2.
DECISIONS AND ORDERS 465
union committees.13 Of the three persons named in Clay's second
letter as having "made most damaging threats against the company
and its property", two were union members who had already received
cards but had refused to return to work until the Union called off
the strike.
It was freely admitted by the respondent at the hearing that the
violence which had occurred during the strike had not been limited
to union members but had been committed by members of both the
Union and the Plan. The respondent's vice president and general
manager, who had requested an opinion from Mr. Beye,as.to whether
he would be justified in,not reemploying a particular union member,
testified that he had heard rumors of certain members of the Plan,
now back at work at the respondent's plants, who had been guilty of
shooting. Yet he made no attempt to ascertain the guilt or inno-
cence of these persons. This fact is significant in determining
whether the real purpose of Clay's investigation was to find out the
names of the persons who had committed illegal acts or whether such
purpose was to furnish the respondent with an excuse not to reinstate
the most active members of the Union.
This Board cannot condone violence by any party to a labor dis-
pute. An employer cannot, however, use the fact that violence has
been committed during a strike as a pretext for not reinstating some
of his employees where the real motive behind his refusal is the, union
activities of such employees and not an honest belief that they have
engaged in illegal acts. In the present case, despite the fact that
the respondent knew that violence had been committed by both its
union and nonunion employees, not a single nonunion employee was
denied reinstatement. The respondent based its belief that the 31
union members had committed unlawful acts upon opinions of coun-
sel received from the respondent's own agents, opinions based upon
affidavits obtained from persons selected by such agents in an investi-
gation conducted by them. None of the accused employees were
interviewed- by Clay and none of them were given an opportunity by
the respondent to contradict the charges against them. The affidavits
upon which the opinions of counsel were based were not introduced
into evidence at the hearing. Thirty of the 31 persons named in the
opinions of counsel were not linked at the hearing to any specific acts
of violence. Sixteen of them testified and denied that they had
engaged in any illegal conduct. The designation of the respondent's
own attorney to investigate the violence, the pursuit of the investiga-
18 The "big shot" of the Union and its most active member was its secretary, C. S:
Stinson. C . A. Sparks, the president of the Union , was one of the ten persons whose
employment numbers had ' not yet been reached by 'the respondent but whom it alleged
that it intended rehiring. •
466 NATIONAL LABOR RELATIONS BOARD
tion in such a way that the testimony of union members would not be
heard, and the -selection of the Union's most active members as the
persons who had committed the violence lead inevitably to the con-
clusion that the purpose of the inquiry and the opinions of counsel
based thereon was to furnish the respondent with an excuse not to
reinstate the most active members of the Union rather than to ascer-
tain the names of the individuals on both sides who had been guilty
of unlawful conduct during the strike.
The case of Boone Lands, one of the union members denied rein-
statement, differs from that of the other 30. Lands was named in
Clay's letter of October 14 as one of the persons who had committed
illegal acts during the strike, and the determination of the respond-
ent not to rehire Lands was undoubtedly grounded, in so far as
that letter was concerned, on Lands' union activities. It is clear
that the respondent discriminated against Lands because of his mem-
bership in the Union.
However, Lands subsequently was arrested and indicted for the
shooting of Herb Christian, a nonunion workman, on the night
of October 30. Christian was injured so severely that one of his
legs had to be amputated. Lands was the only person indicted for a
serious crime during the strike despite all of the shooting which
occurred. Under all of the circumstances of this case, therefore, and
without in any way passing on the guilt or innocence of Lands, we
will not order the respondent to reinstate him.
2. Returned to employment since October 31, 1935
The complaint, in addition to charging the respondent with refus-
ing to reinstate 49 of its employees because of their union activities,
alleged that, the respondent had postponed the reinstatement of 24
others for the same reason. These 24 employees were back at work
at the time of the hearing. Two of them had been reinstated in
December 1935, seven in January 1936, 12 in February 1936, and
the other three, in March 1936. Since 21 of these men had re-
ported back for work on October 31, 1935, and the other three shortly
thereafter, it is quite apparent that a considerable period of time
elapsed before they were returned to their jobs.
The respondent explained that prior to the strike it had carried
more men on its pay roll than it actually needed and had followed
the policy of spreading the work among them. Before reopening
its plants, however, it determined not to reemploy more men than
the actual operations of the plants required. Since operations were
only gradually resumed over a period of several months there was
no work available for a number of employees for some time fol-
lowing the strike.
DECISIONS AND ORDERS 467
During the second week in October, the respondent issued cards
to its employees, calling them back to work on the basis of their
seniority. If a workman did not report when called, however, his
position was not kept open for him but was given to the person
next on the list. By the time the union members reported for work
on October 31, therefore, all of the members of the Plan had been
given jobs. As a result, many members of the Union, though senior
in service to some members of the Plan, were not reinstated for
several months. The evidence clearly indicates that the delay in
reinstating these 24 union members was occasioned by their failure
to return to work when called and not by their union activities.
3. Employees not called to work because of their absence from
community
Six union members were absent from the community when opera-
tions were resumed. There was evidence that some of these six
individuals were absent only because the respondent's plants were
closed and that they would return to Haldeman if they could secure
employment. Since the respondent stated at the hearing that the
reason they had not been notified to report back to work was their
absence from Haldeman and that it was willing to reinstate them
if they returned, the charge of discrimination by the respondent in
refusing to reinstate them i^ not borne out by the evidence. If
the six are refused reinstatement upon their return to Haldeman,
the question of whether such refusal is predicated upon their union
membership can be considered at that time.
4. Employees who are eligible to return to work but whose employ-
ment numbers have not yet been reached
The respondent testified that ten of the 49 union members who
the complaint charges were denied reinstatement because of union
activities were not back at work because their names had not yet
been reached on the employment list and that the reason for the
delay in placing them was their tardiness in reporting after the
strike. The discussion in paragraph 2, supra, applies equally well
to these ten men and we cannot find that at the time of the hearing
discrimination because of union activities had been practiced against
them. If subsequent events show that the respondent is discrimi-
nating against them by reinstating employees with less seniority
or by hiring new employees instead of reinstating these ten union
members, the question of whether such discrimination is a result of
their union activities can be considered at that time.
468 NATIONAL LABOR RELATIONS BOARD
5. Employees unable to return to work because of injury or illness
The respondent's uncontradicted testimony indicated that the rea-
son J. W. Glover, one of the union members named in the complaint,
had not been reinstated was because he was injured or sick and un-
able to work., The charge of discrimination in his case is, there-
fore, not borne out by the evidence. If, upon Glover's reporting for
work he is denied reinstatement, the question of whether such denial
is based upon his union activities can then be considered.
6. Employees who refused to return to work when called
The statement introduced by the respondent 14 shows that J. H.
Reynolds, a member of the Union, reported for work on November
1, 1935, but subsequently refused to return to work when called.
This evidence was not contradicted at the hearing. It is clear,
therefore, that the failure to reinstate J. H. Reynolds, following the
strike, was not because of his union activities.
C. Conclusion
The strike of June 1935, being - a controversy concerning terms of
conditions of employment, was obviously a "labor dispute" within
the meaning of Section 2, subdivision (9) of the Act. The work
of the 73 union members named in the complaint having ceased as
a result of a current labor dispute, they at all times thereafter re-
tained their status as employees of the respondent within the mean-
ing of Section 2, subdivision (3) of the Act.
The action of the respondent in denying reinstatement to the fol-
lowing 31 employees, namely, Roscoe Adkins,. J. R. Bailey, Hazel
Christian, Cordie Davis, Ralph Evans, Roland Eldridge, Dave
Glover, Squire Hall, W. C. Hogge, Ivan Hogge, William Lewis,
J. E. Messer, Estill Oney, Everett Oney, Frank Pettit, Ersell Par-
ker, D. W. Rakes, C. C. Sparks, Andy Sturgell, Roy Sturgell, James
Sturgell, Marvin Sturgell, C. S. Stinson, George Sparkman, C. H.
Stamper, William Sammon, Cleo Stewart, W. F. Thomas, Carl
White, Silas Wilson, and Boone Lands was for the reason that they
had joined and assisted the Union. The respondent's conduct, in so
denying reinstatement to these employees was calculated to and did
have the necessary effect of discouraging membership in the Union.
We find that the respondent has discriminated against its employees
in regard to hire and tenure of employment, thereby discouraging
membership in a labor organization, and has interfered with, re-
14 Board's Exhibit No. 7.
DECISIONS AND ORDERS 469
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
The delay by the respondent in reinstating 24 of its union em-
ployees, namely, Zode Adkins, Hollie Adkins, Bannie Adkins, Marion
Black, Noah Barker, Charles Carter, Noah Caudill, Lake Estep,
Athol Eldridge, Powell Ferguson, Roscoe Ferguson, M. F., Fraley,
Lorty Hamm, Marvin Johnson, Virgil Oney, Homer Rice, Allen
Roberts, Miles Sturgell, J. H. Stewart, Amos Thompson, Earl With-
row, Herb Withrow, Clyde Wilson, and Jake Viars was occasioned
by their tardiness in reporting back to work after the reopening of
the plants and not by their action in joining and assisting the Union.
We find that the respondent in delaying the reinstatement of these
employees did not discriminate in regard to hire and tenure of em-
ployment for the purpose of discouraging membership in a labor
organization.
The respondent, at the hearing, stated its willingness to reinstate
six of its union employees, namely, Milza Black, Richard Bradley,
Frank Christian, A. B. Haynes, W. E. Powers, and Willie Stamper,
if they returned to the community. No question is presented at this
time, therefore, as to whether the failure to reinstate these men is
because they have joined and assisted the Union. Such question may
arise, however, if upon their return to Haldeman they are denied
reinstatement. We will dismiss without prejudice the allegations of
the complaint with respect to these employees.
The failure of the respondent to reinstate ten of its union em-
ployees, namely, G. W. Fraley, E. W. Gayheart, J. R. Johnson, Ever-
ett Messer, James Mabry, Thomas Oney, C. A. Sparks, James Stinson,
Mose Stamper, and Rube Thomas, appears at this time to have been
due to their tardiness in reporting back to work after the reopening
of the plants rather than to their action in joining and assisting the
Union. Subsequent events may show the contrary to have been true,
however. The allegations of the complaint with respect to these men
will be dismissed without prejudice.
The respondent's testimony indicates that the reason for its refusal
to reinstate J. W. Glover, a member of the Union, was because he was
injured or sick and unable to return to work. If, upon his recovery,
Glover is denied reinstatement, the question of whether the respond-
ent has discriminated against him because he.has joined and assisted
the Union may arise. The allegations of the complaint with respect
to J. W. Glover, therefore, will be dismissed without prejudice.
The failure of the respondent to reinstate J. H. Reynolds, also a
member of the Union, was caused by the refusal of Reynolds to return
to work when called. We find that the respondent, in the case of
49446-38-vol. ui-31
470 NATIONAL LABOR RELATIONS BOARD
J. H. Reynolds, did, not -discriminate in regard to hire and tenure of
employment for the purpose of discouraging membership in: a labor
organization. - '
IV. THE EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE'
In 1934, the 'respondent. delivered 1047 carloads of 'firebrick' into
the stream of interstate ' commerce.- ' In 1935, it shipped only 499
carloads. Yet during this same period-business' condition's generally
were improving: ' It is quite evident that the explanation' for this
sharp_curtailment'in,the respondent's business is the two strikes that
took place in 1935 at its plants.
The' Kentucky Firebrick Company cannot be considered as a 'com-
pl`ete un'it.in itself, 'operating only at Haldeman,'Kentucky. ' Owned
and dominated by the Illinois Steel Corporation, its Haldemanplants
the only firebrick refractories controlled by that corporation, the
respondent must, be pictured as an integral part of Illinois Steel.
The only logical assumption that can be drawn from'the relationship
between these two corporations is that'a labor dispute rat Haldeman,
Kentucky, would directly affect activities 'at' other points in' the
organization of Illinois Steel throughout the Midwest.
The activities of the' respondent set forth in Section' III, above,
occurring in I connection with the operations of the 'r'espondent de-
scribed 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. '
TIE REMEDY
The, refusal of the respondent to reinstate 31 of 'its employees on
October 31, 1935, the day following the termination of the: strike by
the,Union,'constituted ^a discharge of 'such employees. In the case of
employees who have been discharged, because of unfair labor prac-
tices,'we normally order reinstatement with back pay' from the'd'ate
.of the discharge to the time of the respondent's 'offer of reinstate-
ment.'6 " In' view , of ' the' Trial, Examiner's recommendations in the
present case, however, the respondent could not have 'been 'expected'to
reinstate ' the other employees after it received' the, Intermediate
Report, and therefore it•should not be required to pay them-back pay
from that:time:to the date of this decision J6
is For the reasons stated above , we are , not requiring the respondent to reinstate
Boone Lands. ' ' ' ,
'{,hs Matter, of E. .R.'Hafelfnger Company, Inc.' and Unsted Wall Paper. Crafts of North
America, Local No '6, 1 N. L. ' R. B. 760.
lL' -- " lii 2'
DECISIONS AND ORDERS 47.1
CONCLUSIONS OF LAW
Upoii the basis of the foregoing findings of fact the Board makes
the following conclusions of law :
'1. Local Union No. 510 of the United Brick and Clay Workers of
America is a labor organization, within the meaning of Sectiofi 2,
subdivision (5) 'of the Act.
2. The strike of June ,18,' 1935, ' was a labor dispute, 'within 'tlie
meaning of Section 2, subdivision (9) of the Act.
3. Roscoe Adkins, J. R. Bailey, Hazel Christian, Cordie Davis,
Ralph Evans, Roland Eldridge, Dave Glover, Squire Hall, W. ' C.
Hogge, Ivan Hogge, William Lewis, J. E. Messer, Estill Oney, Ever-
ett Oney, Frank Pettit, Ersell Parker, D., W. Rakes, C. C. Sparks,
Andy Sturgell, Roy Sturgell, James Sturgell, Marvin,Sturgell, C. S.
Stinson, George Sparkman, C. H. Stamper, William Sammon, Cleo
Stewart; ' W. F. Thomas, Carl White, Silas Wilson, and Boone La'nds'
were at the time of their discharge, and at all times thereafter, enn
ployees of the respondent, within the meaning of Section 2, sub-
division' (3) of the Act. I . I I r
4. The respondent, by discriminating in regard to ' the 'hire and
tenure of employment of Roscoe Adkins, J. R. Bailey, Hazel Chris-
tian, Cordie Davis, Ralph Evans, Roland Eldridge, Dave Glover,
Squire Hall, W. C. Hogge, Ivan Hogge, William Lewis, J. E. Messer,
Estill Oney, Everett Oney, Frank Pettit, Ersell Parker, D. W. Rakes,
C. C. Sparks,.Andy Sturgelf, Roy Sturgell, James Sturgell, Marvin
Sturgell, C. S. Stinson, George Sparkman, C. H. Stamper, William
Sammon, Cleo Stewart, W. F. Thomas, Carl White, Silas Wilson,
and Boorie Lands, and each of them, has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8, subdivision.
(3) of the Act.
5. The respondent ,' by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 , subdivision ( 1) of the Act.
6..The unfair labor practices referred to in paragraphs 3 and 4
above are unfair labor practices affecting commerce, within the mean-
ing of Section 2, subdivisions ( 6) and (7) of the Act.
7. The respondent , by discharging J. H. Reynolds, has not dis-
criminated in regard to hire and tenure of employment, within the
meaning of Section 8, subdivision (3) of the Act.
8. The respondent , by, delaying the reinstatement of Zode Adkins,
Hollie Adkins, Bannie Adkins, Marion Black, Noah Barker, Charles
Carter, Noah Caudill , Lake Estep , Athol Eldridge, Powell Ferguson,
Roscoe Ferguson}, M, F. Fraley , Lorty Hamm, Marvin Johnson,
472 NATIONAL LABOR RELATIONS BOARD
Virgil Oney, Homer Rice, Allen Roberts, Miles Sturgell, J. H. Stew-
art, Amos Thompson, Earl Withrow, Herb Withrow, Clyde Wilson,
and Jake Viars, has not discriminated in regard to hire and tenure
of employment, within the meaning of Section 8, subdivision (3) of
the Act.
9. The respondent, by failing to reinstate Milza Black, Richard
Bradley, Frank Christian, A. B. Haynes, W. E. Powers,, Willie,
Stamper and J. W. Glover, has not discriminated in regard to hire
and tenure of employment, within the meaning of Section 8, sub-
division (3) of the Act.
10. The respondent, by delaying the reinstatement of G. W. Fraley,
E. W. Gayheart, J. R. Johnson, Everett Messer, James Mabry,
Thomas Oney, C. A. Sparks, James Stinson, Mose Stamper, and
Rube Thomas, has not discriminated in regard to hire and tenure of
employment, within the meaning of Section 8, subdivision (3) of the
Act.
11. The respondent, by discharging J. H. Reynolds, by failing to
reinstate Milza Black, Richard Bradley, Frank Christian, A. B.
Haynes, W. E. Powers, Willie Stamper, and J. W. Glover, and by
delaying the reinstatement of Zode Adkins, Hollie Adkins, Bannie
Adkins, Marion Black, Noah Barker, Charles Carter, Noah Caudill,
Lake Estep, Athol Eldridge, Powell Ferguson, Roscoe Ferguson,
M. F. Fraley, Lorty Hamm, Marvin Johnson, Virgil Oney, Homer
Rice, Allen Roberts, Miles Sturgell, J. H. Stewart, Amos Thompson,
Earl Withrow, Herb Withrow, Clyde Wilson, Jake Viars, G. W.
Fraley, E. W. Gayheart, J. R. Johnson, Everett Messer, James
Mabry, Thomas Oneya C. A. Sparks, James Stinson, Mose Stamper,
and Rube Thomas, has not interfered with, restrained,, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act, within the meaning of Section 8, subdivision (1) of the
Act.
ORDER
On the basis of the findings of fact and conclusions of law, and
pursuant to Section 10, subdivision (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, Kentucky Firebrick Company, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from discouraging membership in Local Union
No. 510 of the United Brick and Clay Workers of America, or any
other labor organization of its employees, by discharging, threat-
ening to discharge, or refusing to reinstate any of its employees for
joining or assisting Local Union No. 510 of the United Brick and
Clay Workers of America, or any other labor organization of its
employees;
DECISIONS AND ORDERS 473
2. Cease and desist from in any manner discriminating against
any of its employees in regard to hire or tenure of employment for
joining or assisting Local Union No. 510 of the United Brick and
Clay Workers of America, or any other labor organization of its
employees; and
3. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights to self-
organization, to form, join or assist labor organizations, to bargain
collectively through representatives of their, own choosing, and to
engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, as guaranteed in Section 7 of
the National Labor Relations Act.
4. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Roscoe Adkins, J. R. Bailey, Hazel Christian, Cordie
Davis, Ralph Evans, Roland Eldridge, Dave Glover, Squire Hall,
W. C. Hogge, Ivan Hogge, William Lewis, J. E. Messer, Estill
Oney, Everett Oney, Frank Pettit, Ersell Parker, D. W. Rakes,
C. C. Sparks, Andy Sturgell, Roy Sturgell, James Sturgell, Marvin
Sturgell, C. S. Stinson, George Sparkman, C. H. Stamper, William
Sammon, Cleo Stewart, W. F. Thomas, Carl White, and Silas Wil-
son, and each of them, immediate and full reinstatement, respec-
tively, to their former positions, without prejudice to their senior-
ity or other rights and privileges;
(b) Make whole the persons named in paragraph 4 (a) above,
and each of them, for any losses of pay they have suffered by rea-
son of their discharge, by payment to them, respectively, of a sum
of money equal to that which each would normally have earned
as wages during the periods from October 31, 1935, to the receipt
of the Intermediate Report by the respondent, and from the date
of this decision to the time of such offer of reinstatement, less the
amounts, if any, which each earned during such periods ;
(c) Post immediately notices to its employees in conspicuous
places throughout its place of business, stating (1) that the re-
spondent will cease and desist in the manner aforesaid, and (2)
that such notices will remain posted for a period of at least thirty
(30) consecutive days from the date of posting;
(d) Notify the Regional Director for the Ninth Region in writ-
ing within ten (10) days from the date of this order what steps
the respondent has taken to comply herewith.
And it is further ordered that,
5. The allegations of the complaint be, and they hereby are, dis-
missed without prejudice with respect to the discharge of Milza
Black, Richard Bradley, Frank Christian, A. B. Haynes, W. E.
Powers, Willie Stamper, G. W. Fraley, E. W. Gayheart, J. R.
474 NATIONAL 'LAB(jR RELATIONS BOARD
Johnson, 'Everett Messer, James Mabry, Thomas Oney,. •C. A.
Sparks, James Stinson, Mose Stamper,, Rube Thomas,' and J. W
Glover; and ' ''''l
6. • The allegations of the' complaint be, and they hereby are, dis-'
missed with respect to the discharge of J. H. Reynolds,' and with
respect to the delay in reinstating Zode ' Adkins, 'Hollie Adkins,
Bannie Adkins, Marion'Black, Noah Barker, Charles Carter,' Noah
Caudill', L'ake'Estep, Athol Eldridge Powell Ferguson; Roscoe'Fer-
guson, M.''F. Fraley, Lorty Hamm;' Marvin Johnson,' Virgil' Oriey;
Homer Rice, Allen Roberts, Miles Sturgell, J. H. Stewart, Amos
Thompson; Earl Withrow, Herb Withrow, Clyde Wilsoilj''arid' Jake
Viars. - - ° '
l)"
',1