Kilgore Corp.

National Labor Relations Board - Board Decisions

Jul 6, 1973

204 N.L.R.B. 797 (N.L.R.B. 1973)

KILGORE CORP. 797
Kilgore Corporation and International Union , United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW). Case 26-CA-4557
July 6, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
before the Board, thereby violating Section 8(a)(3) and (1)
of the National Labor Relations Act.
Upon the entire record,; including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Company,
I make the following:
FINDINGS OF FACT
I JURISDICTION
On April 9, 1973, Administrative Law Judge Mar-
ion C. Ladwig issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed an answering brief to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Kilgore Corporation, Toone, Tennessee,
its officers , agents , successors, and assigns , shall take
the action set forth in the said recommended Order.
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd . 188 F.2d 362 (C.A. 3). We have carefully examined the record and find
no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: This case
was tried at Jackson, Tennessee, on February 13-15, 1973.
The charge was filed by the Union' on November 22, 1972,2
and the complaint was issued on January 8, 1973. The pri-
mary issue is whether the Company, the Respondent, dis-
criminatorily discharged one of the Union's election observ-
ers while the representation proceeding was still pending
i The name of the Union was amended at the trial
2 All dates are in 1972 unless otherwise stated
The Company, a Tennessee corporation, is engaged in the
manufacture of pyrotechnic products at its plant in Toone,
Tennessee, where it annually ships products valued in ex-
cess of $50,000 directly to points outside the State. The
Company admits, and I find, that it is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act, and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
This entire case (a 655-page transcript and 3 days of trial)
involves the November 17 layoff or discharge of one em-
ployee, Truett Siler, a senior leadman who served as a union
observer at the close, contested May 11 election and who
thereafter continued to support the Union. (I take judicial
notice of the Board's records in Case 26-RC-4182, in which
the petition was filed on February 24; the vote on May 11
was 132 for and 132 against the Union, with 4 challenged
ballots; and one of the Union's objections, sustained by the
Regional Director, is still pending before the Board, upon
the Company's request for review.)
In 1971, leadman Siler had been retained, despite a dras-
tic cutback in the work force, when the Company, a manu-
facturer of military and commercial pyrotechnics, lost a
large part of its war-related military orders. The Company
then laid off about 300 of its approximately 700 employees
(a reduction of about 40 percent), and laid off or reassigned
15 of its 27 leadmen (a reduction of 55 percent). Siler (a
leadman since 1964) was I of the 12 leadmen retained,
although most of the employees working under him were
laid off.
In October 1972, when the Company had 216 remaining
production employees, it had 9 leadmen on the payroll, Siler
and 8 others. (Another leadman, Frank Kennedy, was not
working, having suffered a heart attack in September. He
later resigned.)
A number of the Company's orders were being finished
in October and November, and the start up of other orders
was expected in December and February 1973. In order to
maintain the level of its profits for the year, the Company
decided to cut expenses, and scheduled the layoff of 123 of
its 216 production employees. The 123 employees (consti-
tuting 57 percent of the production employees) were to be
J I grant the General Counsel's March 30 motion to stnke the assertions
in the Company's brief regarding a purported posttnal conversation between
it and Siler, as being outside the record and not made the subject of stipula-
tion
204 NLRB No. 128
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laid off between October 24 and the week of November 20.
However , because of the estimated start -up time on new
orders , the Company planned to begin recalling employees
in December , and to recall and hire a total of 138 production
employees, 15 more than those laid off, by February 1973,
to increase the payroll to 231 production employees.
Evidently because of the scheduled increase in the work
force , the Company decided not to reduce the number of
leadmen proportionately as it had in 1971 (when it reduced
the number of leadmen 55 percent upon laying off 40 per-
cent of the work force). Although it was scheduling the
layoff of over half (57 percent ) of its production employees,
the Company decided to retain all of the nine leadmen on
the payroll except Siler . (It also laid off the absent leadman
who had suffered the heart attack.)
At the time of his layoff , leadman Siler was setting up the
MK 25 assembly line, after having made the pilot lots for
testing . The only leadmen who had had experience running
the MK 25 was Siler and leadman Johnny Harris , who was
then leadman over the shipping and receiving department.
To replace Siler on the MK 25 , the Company assigned a
former inspector , Blanche Maxwell , who had been a lead-
woman for only about 9 months and who received the assis-
tance of the assistant foreman in running the MK 25.
About 2 weeks before the trial in February , leadman
Harris quit . The Company , instead of recalling Siler , did its
best to persuade Harris to reconsider his resignation, and
even placed him on paid vacation in the hope he would
return . However , Harris refused to reconsider , refused to
talk to the plant superintendent about it , and filed for a
return of his profit -sharing money (indicating his final sepa-
ration from the Company ). As Harris ' replacement, the
Company assigned leadwoman Maxwell , whose MK 25 as-
sembly line was temporarily down . By the time of trial, the
Company admittedly had not given any consideration to
recalling Siler to replace either Harris or Maxwell.
The Company contends that its reasons for laying off
Siler were nondiscriminatory . The General Counsel con-
tends , in effect , that Siler was discriminatorily discharged
and that the Company had no intention at the time of
recalling him.
B. Evidence of Discriminatory Motivation
The Company had been confronted with three union or-
ganizing efforts within 5 years . In 1970, as Plant Superinten-
dent Robert Cummings testified , the Company established
a "good communication program with the employees," uti-
lizing the nonsupervisory leadmen to disseminate to other
employees information which the Company gave the lead-
men in periodic meetings.
In early 1972, during the Union 's organizing campaign,
the Company decided that leadman Truett Siler had a bad
"attitude ," and was disputing some of the Company's infor-
mation . As described by Superintendent Cummings, the
Company "set up good lines of communication ... to dis-
seminate the information to the people . . . yet something
happened in early 1972 to change Truett's attitude to the
point that rather than carrying this information to the peo-
ple as he was meant to do, he never projected it that way.
It was turned or twisted , invariably putting another supervi-
sor of the Company or the Company in a bad light."
As developed at the trial by the Company's cross-exami-
nation of leadman Siler, General Foreman Billy Carter told
Siler about February that Plant Manager Tom Jackson and
Superintendent Cummings "wanted to fire me. And I asked
him what for and he acted like he didn't know and I told
him I wanted to talk with Mr. Cummings just to see what
the problem was." (In one of Siler's pretrial affidavits, which
the Company introduced into evidence, Siler stated that
"Carter came to me and said that Jackson and Cummings
wanted to fire me and he told [them] that he didn't think
they should do it.") Siler spoke to Cummings and asked
why they wanted to fire him. Cummings "just said that.I,had
a bad attitude and that it seems to be deeply embedded."
Siler was not discharged at that time.
Leadman Siler did not actively campaign for the Union,
but he did express his support to the Union, and advise the
signing of union cards , when members of his working crews
would ask his opinion of the Union and whether he thought
they should sign cards.
Credited evidence clearly shows that the Company was
aware of leadman Siler's union support before the day of the
election (when Siler served as a union observer ), and that
the Company had decided to discharge him upon the first
opportunity.
Leadman Siler testified that 3 days before the May II
election , Foreman Carter "came to me and told me that Mr.
Jackson had informed him that I was for the Union. " (Empha-
sis supplied .) Siler proceeded to tell Carter why he favored
the Union, referring to the Company's bringing Robert
Grantham into the department earlier that year , having Sil-
er show Grantham "how to do the job." and then promoting
Grantham instead of Siler to the supervisory position of
assistant foreman . Carter "told me he felt the same way I
did, but I couldn't blame him for what had happened, it
wasn 't his fault ." On cross-examination, Carter testified that
he personally suspected Siler's union activity about a week
or two before the election, "but I did not know." (Concern-
ing credibility, I closely observed Siler's demeanor on the
stand during the number of hours he testified; his testimony
covering about 145 pages of the transcript . He impressed me
as being an intelligent witness, with a good memory, and
scrupulously honest on the stand. I have also closely com-
pared his testimony with the 20 pages of his pretrial affida-
vits, and weighed all his testimony with that of other
witnesses . He clearly impressed me as being the most trust-
worthy and reliable witness at the trial , and in general I
credit his testimony on the stand when in conflict with other
testimony . In contrast , Foreman Carter appeared to be eva-
sive, and to be attempting to give fabricated or misleading
testimony to support the Company's defense.) I credit
Siler's testimony about this conversation. I discredit
Carter 's claim that he merely suspected Siler 's union activi-
ty, and Jackson's claim that his only knowledge of Siler's
union support was his serving as a union observer.
Then on May 10, the day before the election, Plant Man-
ager Jackson revealed his decision to have Siler discharged.
On that day, Assistant Foreman Grantham (an admitted
supervisor) overheard a conversation between Plant Man-
ager Jackson and a new assistant personnel manager, Glen
Sammons, when Jackson and Sammons were touring the
KILGORE CORP. 799
plant. As Grantham later reported to General Foreman
Isbell, Jackson and Sammons were standing near the door
in building 13, and Grantham overheard Jackson say "that
one of the first things to do was to get rid of this fellow over
here, pointing to Mr. Siler. " (Emphasis supplied .) The Com-
pany challenges Isbell's credibility , citing his discharge or
forced resignation from the Company in November. How-
ever, there is convincing corroboration (despite Jackson's
denial that he made such a statement , and a similar denial
by Sammons , who even denied remembering seeing either
Grantham or Siler at the time ). Sammon did admit being
in the building with Jackson on May 10 . Also Grantham (a
company witness who proved to be most evasive and eager
not to give testimony damaging to the Company 's cause
when first called by the General Counsel to testify about
this incident) admitted that Jackson came to building 13,
"introduced Sammons to me and talked a minute or two,"
and later, "I heard him suggesting getting rid of somebody."
Furthermore , although Grantham denied on the stand that
he looked to see, or had any idea , whom they were talking
about, in his pretrial affidavit (which the General Counsel
introduced into evidence without objection), Grantham
stated that he overheard Jackson tell Sammons "one of your
main jobs is to get rid of that man ," and "I had no doubt
who they were talking about ." Moreover , Isbell impressed
me throughout as being an honest , forthright witness, and
I credit his testimony of what was reported to him by Gran-
tham , an admitted supervisor.
The next day , May 11, leadman Siler served as a union
observer at the election . Sometime thereafter , as the former
general foreman , Isbell, credibly testified, Isbell and Gener-
al Foreman Carter "were discussing Truett Siler 's participa-
tion in the union election and Billy Carter made the remark
to me that they wanted to get rid of Truett the last time and
he saved him from that , but this time they were going to get
rid of him and there wasn't nothing he could do about it."
(Emphasis supplied .) Isbell thought that Carter was refer-
ring to "saving" Siler from discharge at an earlier election,
but Carter may have been referring to his support of Carter
in February, as mentioned above . (I discredit the
Company 's denials.)
The May 11 election was inconclusive (because of the tie
vote , the challenged ballots , and the Union 's election objec-
tions), and leadman Siler continued to talk in favor of the
Union in conversations with Foreman Carter and nonsu-
pervisory inspectors . This continued support by the lead-
man was brought to Plant Manager Jackson 's attention. At
one point , Jackson told Siler "he had been hearing that I
had been talking about the Union ," and suggested that "the
union election was over with and for me to go ahead and
do the good job I had been doing." In the conversation
which followed , Siler commented that he knew why Jackson
was talking to him , stating it was because of his conversa-
tions in the office with the foremen and inspectors. Still
later, Siler was subpenaed to testify in support of the
Union 's election objections in a hearing scheduled to be
held sometime in September . At the request of the union
representative , Jackson informed Siler that the hearing had
been canceled and that Siler would not need to appear.
Jackson explained to Siler that the Union was dropping two
of its objections and "then he assured me that [objection]
number one wouldn't be any problem , that it was posted on
the bulletin [board] and that they'd keep that tied up for
seven years ." (I discredit Jackson's denial that he made such
a statement.)
Finally , about the middle of October (shortly before lead-
man Siler 's November 17 "layoff" ), General Foreman Car-
ter again revealed to General Foreman Isbell the
Company's continued determination to discharge Siler. Is-
bell and Carter had been to a weekly supervisory meeting,
in which Isbell had asked Plant Manager Jackson about a
new program for allowing employees to bid on different
jobs . After the meeting , as Isbell credibly testified, Carter
commented to Isbell that there was no use in Isbell asking
anything , "It's just a bunch of stuff designed to pacify the
people to where they won't try to get the Union in," and
Isbell agreed . In the conversation , Isbell said something
about Siler having "the guts to get up there and make him-
self public and Billy told me what Tom Jackson said, was
that he said to get rid of Truett ." When asked on cross-
examination if Carter said "anything about the union busi-
ness at that time or any other reason" for getting rid of Siler,
Isbell credibly testified : "We were talking about the prior
meeting we had just had and why we figured the new plan
was being adopted and Siler 's name was brought in the
conversation and all this had to do with the Union ." (Again
I discredit the Company 's denials.)
Thus, according to this credited testimony , Plant Manag-
er Jackson himself was determined to get rid of Siler, after
learning about Siler's continued support of the Union, dur-
ing the time that the validity of the May 11 election was
being contested.
C. The "Layoff'
On November 17, about a month after General Foreman
Carter informed General Foreman Isbell that Plant Manag-
er Jackson "said to get rid of Truett" Siler, Plant Superin-
tendent Cummings summoned Siler to the office and,
without any prior notice , laid him off . Cummings stated that
Siler "had come up low in the evaluation of leadmen" and
said he did not like the way Siler had run building 35 (where
Siler had led the MK 24 disc assembly ) and that the Compa-
ny had lost money on the MK 6 (which had been completed
earlier that month). Siler said he knew how, and tried, to do
his job , and commented about his 10 years of seniority not
meaning a thing . Cummings "assured me seniority meant a
lot, but there was a lot of other things taken into consider-
ation," and also stated that he had discussed it with Fore-
man Carter and Assistant Foreman Grantham . Cummings
did not offer Siler the option of taking a lower job.
Siler returned to building 13, where he had been making
pilot lots for the MK 25 while running the MK 6 assembly
line, and where he was then setting up the assembly line for
the MK 25 which was scheduled to begin production in
December . (At the time, Siler was also leading a subassem-
bly line in building 24.) Before punching out, Siler men-
tioned his layoff to Assistant Foreman Grantham, who
revealed that he knew nothing about it. Siler said, "Well, I
can't understand why because Bob told me that he had
discussed this with you and Carter ," and Grantham "as-
sured me that Cummings had not even mentioned me to
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him."
As the evidence developed, there had been no formal
evaluation of the leadmen in 1972, as there had been in 1971,
when Siler was I of 12, out of 27, who were retained. I note
that the Company did not produce Foreman Carter's favor-
able 1971 written evaluation of Siler, but produced a prior
foreman's 1969 evaluation which contained the unfavorable
comments, "tends to be overly critical of other employees
who work under him" and relations which employees are
not the best, he tends to believe the worst rather than giving
the employees the benefit of the doubt." (The General
Counsel referred in his brief to this "old 1969 evaluation
... belatedly found . . . in an effort to enchance" the
Company's defense at the trial.)
D. Company's Defenses
1. The 1971 layoff policy
The Company contends in its brief that it was "required"
by the reduction in business to lay off the two leadmen (Siler
and the absent heart attack victim), and that it has "main-
tained a policy, since 1971," to offer affected leadmen, with-
out loss of their leadmen status, another job in lieu of layoff,
but only if another job is open within two labor grades,
which there was not.
I find that this is a mere pretext for "laying off" Siler.
First, the situation in 1972 was entirely different from the
situation in 1971, when this unwritten policy (not covered by
its employee's manual) was followed. In 1971, there was a
permanent reduction of the work force, whereas in 1972, the
Company was scheduling a later increase in its work force.
In 1971 the Company laid off or reassigned over half of its
leadmen when it reduced the work force about 40 percent,
but in 1972, when it was temporarily laying off 57 percent
of its production employees, it decided to retain all its lead-
men on the payroll (except Siler), obviously to avoid risking
the loss of this plant leadership for the forthcoming in-
creased production. In fact, the Company decided to retain
Blanche Maxwell, whom Siler had helped train earlier that
year to be a leadperson, although her MK 24 assembly line
was being closed, and the MK 25 assembly line (which Siler
had been setting up and to which she was assigned to lead)
did not begin production for several weeks. Furthermore,
when the expected start-up time for the new production did
not materialize (one order being canceled and other produc-
tion being delayed for weeks or months), the Company
continued to retain all its remaining leadpersons on the
payroll, and did its best to persuade leadman Harris to
reconsider when he resigned, refused to discuss the matter
with the plant superintendent, and applied for his profit-
sharing benefits. (In evaluating Plant Manager Jackson's
credibility, I note that on the day before Harris appeared as
a rebuttal witness, Jackson falsely testified, "No," Harris
had not quit. When pressed by further questions by the
General Counsel, Jackson testified that Harris was on vaca-
tion, that he had not quit "Not as far as I know," and that
"I should" know if Harris had quit.) Moreover, Cummings
finally admitted, after being shown his pretrial affidavits,
that except for certain purported faults, Siler "could have
possibly been retained" instead of being laid off. Thus, the
situation was quite different from the situation which ex-
isted at the earlier layoff, and I reject the Company's con-
tention that it was "required" to lay off two leadmen. To the
contrary, I find that in the absence of Jackson's determina-
tion to "get rid of Siler" after learning of his continued
union support, I find that the Company would have re-
tained all the leadpersons then on the payroll.
Second, the Company did not follow all of its 1971 layoff
policy. The Company admits that in 1971, it offered affect-
ed leadmen the option of taking a job more than two labor
grades below their present job, without the retention of
leadman status, in lieu of layoff. Yet, the Company did not
offer Siler this option. (I discredit, as an afterthought, Plant
Manager Jackson's testimony that he did not believe Cum-
mings offered Siler such a job "because we would've like to
have had him on recall" as a leadman.)
2. Purported deficiencies
a. Preface
The Company's witnesses gave a mass of testimony about
Siler's supposed deficiencies. However in doing so, they
painted such a black, and clearly distorted, picture, that the
Company deemed it necessary to ask Plant Superintendent
Cummings (who purportedly made the decision to lay off
Siler), whether there was "anything Truett Siler did that
would require you to terminate or fire him?" Cummings
answered no.
Yet, Siler's competence was admitted. Superintendent
Cummings testified, "We have all attested to the fact of
Truett's intelligence and abilities. . . . He's above average
intelligence"; "he knew the products real well," and he "has
technical ability on various assembly operations and prod-
ucts." Not only had Siler served for many years as a lead-
man, over many of its products, but he was sometimes more
skilled than the maintenance man in locating and reme-
dying problems which arose in production.
With the exception of Foreman Carter, none of the wit-
nesses contended that Siler had ever been reprimanded.
Initially, Carter positively denied that he had ever given
Siler any reprimand. Later in his testimony, however, when
Carter was giving some dubious testimony, as discussed
below, Carter changed his testimony and claimed that he
had reprimanded Siler.
b. Siler's "attitude"
When Superintendent Cummings gave Plant Manager
Jackson a written report on November 22 (5 days after
Siler's layoff) of the purported reasons for the layoff, Cum-
mings wrote: "Retention of [leadpersons] was based on
overall supervisory ability and versatility," without men-
tioning anything concerning Siler's "attitude." By the time
of trial, however, the Company contended that Siler had
such a bad attitude that he did not care if production stan-
dards were met.
When asked on cross-examination about Siler's "lax atti-
tude" (which Foreman Carter mentioned on direct exami-
nation), Carter claimed that "personally, I don't believe he
cared if the jobs got done or not or if we run the amount
KILGORE CORP.
of production we were supposed to or if we ran a good unit
or if he had a lot rejected." When asked how he drew that
conclusion, he answered, "From my observation of being
over Truett and working with him." Later, however, Carter
not only claimed that Siler actually said that he did not care
if the production got out, but also asserted that he reported
this to Superintendent Cummings, saying, "Bob, I was just
up there talking to Truett and Truett told me that he didn't
rcally c if wa got production or not, that he had lost
interest in everything we were doing down there." (Nothing
about this purported disclaimer of interest is mentioned in
Carter's pretrial affidavit, and although Cummings testified
at length about Siler's supposedly poor attitude, he never
mentioned anything about such a report from Carter.)
Carter's dubious testimony continued. He claimed that
Cummings urged him to try to motivate Siler "into doing
what he's supposed to do," whereupon Carter responded,
"Well, I don't know much else I can do to motivate him,"
and Cummings said, "I want you to work with Truett and
give him every opportunity in the world to do a good job."
Then, according to Carter, he told Siler that "I knew he was
intelligent and the only thing he had to do was to get rid of
his negative attitude . . . and he could be one of the best
supervisors down there" and "I would appreciate all the
help he could give me in trying to get the job done." He
again denied that he reprimanded Siler. Still later, Carter
changed his testimony and claimed that he did reprimand
Siler, telling him that if he did not do his job, "I would have
to take other measures." (Siler credibly testified that Carter
never reprimanded him and never talked to him about his
attitude.) Carter gave even further conflicting testimony on
this subject. On direct examination, he testified that he
thought Siler "got his real lax attitude" about February, but
on cross-examination, he testified that he did not think he
testified that this happened around February, explaining, "I
believe it was about the middle of 1972, about the middle
of the year."
I discredit the testimony about a "lax attitude," and find
that the Company was concerned instead about Siler's
prounion "attitude" (as discussed above under "Evidence of
Discriminatory Motivation" ).
c. Production on the MK 6
Much of Siler's work in 1972 was on the MK 24 (military
flare) mainline assembly and on various subassemblies.
About the first of August, the mainline assembly was as-
signed to the new leadwoman, Maxwell, and Siler was
placed over leadman Kennedy on the MK 6 assembly line,
while still leading several other operations. Because of the
many difficulties encountered in the production of the MK
6 (the specifications on which had been changed since the
last time it was produced), no production standards were
established for the assembly line until the second week in
September, about the time Kennedy suffered the heart at-
tack and Siler assumed full responsibility in leading the
production (along with his other assignments, such as mak-
ing pilot lots on the MK 25).
The MK 6 operation was to be a short one, and the
Company did not replace some old equipment which had
caused trouble in the past. During the 3 months the job was
801
running, Siler had to train a total of about 22 employees to
get a 10-employee crew to do the work. Most of them were
new (or rehired) employees who had not had experience on
this operation. Two added coats of paint (required by the
new specifications) caused considerable production prob-
lems, along with frequent equipment breakdowns and short-
age of maintenance help. There was also the problem of
utilizing the full crew during the final canning-out opera-
tion. There was an insufficient number of employees to do
the assembly work and the canning at the same time, and
signs were posted against these employees, working with
phosphorus, going to another area. The women crewmem-
bers were unable to handle the heavy boxes being packed,
and it was difficult to find productive work for those not
involved in the canning operation. Siler asked Foreman
Carter if he could borrow and use some of them during the
canning, but Carter was able to do so only on occasion.
The plant manager, superintendent, and foreman were
aware of the production problems, but they left it largely to
Siler's discretion in trying to solve them. Foreman Carter
told him to do the best he could with what he had. On one
occasion when the machine broke down, Siler complained
to Plant Manager Jackson that "the stuff was worn out,"
and Jackson agreed with him. (As Siler also credibly testi-
fied, Jackson never talked to him about the employees being
idle when the line was down.) Under the conditions, Siler
found it impossible to meet the production standards, and
repeatedly advised Carter that the standards should be low-
ered or the time study department should show them what
was being done wrong. The Company did neither. Superin-
tendent Cummings had set a tentative schedule of 300
pieces a day, but often asked Siler when he was going to run
400 pieces a day (approaching the production standards).
The best Siler could promise was by "maybe the last day."
As credibly testified by Siler, nothing was said to him about
losing money on the MK 6 operation until the day of his
layoff.
At the trial, however, Superintendent Cummings claimed
that Siler's "poor performance" on the MK 6 was the main
reason for his decision to lay Siler off. Cummings testified
in great detail about supposed conversations he had with
Siler and Foreman Carter about the MK 6 production, but
I find this testimony to be largely fabricated. His willingness
to misrepresent is illustrated by his response to a question
about the meaning of certain figures on an exhibit which the
Company had prepared to prove how inferior Siler's MK 6
production was in comparison with leadwoman Maxwell's
production (on a different production line). Earlier at the
trial, Plant Manager Jackson had readily testified that the
figures indicated a mistake in the records (in that they
showed the MK 6 assembly line working 8 hours on Septem-
ber 21 to produce 305 units, and the same line working 8
hours on September 22 to produce only 157 units). But when
Cummings was asked about the same figures, he gave this
fabrication: "It reflects that we had a [leadman, Siler] that
didn't care and didn't try to motivate the people and the
employees were allowed to produce whatever they pleased.
That they loafed on the job, and produced what they want-
ed to." (Cummings also gave the evidently false testimony
that he was not aware that Siler had been a union observer.)
Cummings claimed that he talked to Siler about utilizing the
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees when the canner broke down (without suggesting
how), but Siler credibly testified that Cummings never
talked to him about making arrangements for the employees
to be assigned to another job while the canner was down.
Cummings also gave the implausible testimony that it was
necessary for him to suggest the installation of two conveyor
belts , whereas Siler credibly testified that he and leadman
Kennedy installed one of them at the beginning of the oper-
ation , and "it was my idea" to install the other one.
Plant Manager Jackson , in turn , testified that he repeat-
edly talked to Siler about him not being able to run the
assembly line when the canner broke down because of poor
housekeeping , that "the place was in such disorder ," Siler
could not transfer people back from one operation to the
other. Siler credibly denied that Jackson ever mentioned
this, and described why the assembly line could not be
started up when the canner was down (e.g., mentioning the
turning off of the tarpots , and the necessary time for reheat-
ing the tarpots). I note that there was a time when Siler was
asked to have the rear of the building cleaned up, but this
was at the completion of the MK 26 operation. (Siler did not
have any employees to assign to do this work, so he helped
the yardman do it.)
I find that the Company falsely accused leadman Siler of
being at fault for the difficulties on the MK 6 operation, and
used the low production on that line as a mere pretext for
his "layoff."
3. Other defenses
The Company 's remaining defenses are clearly make-
weight.
Foreman Carter testified that "To a degree a lot of it was,
I think," leadman Siler 's fault with the production of the
discs for the MK 24 in building 35. However it was Siler who
was sent to lead that subassembly line in order to solve the
production problem, and after much experimenting with the
drying oven which was at fault, he had a buffer built and
installed , solving the problem.
Concerning Siler's running of the MK 24 mainline assem-
bly in building 13, Superintendent Cummings did not men-
tion this at the time of Siler 's layoff, and did not give
testimony at the trial about it . Yet, there had been some
problems with "leakers" on that line, and the Company
presented evidence (much of it conflicting ) of the apparent
irritation on the part of the inspector with Siler when he and
the maintenance men were experiencing much difficulty in
locating the problems. However, the problems were solved
before that part of Siler 's duties was turned over to lead-
woman Maxwell (when Siler was assigned to supervise the
MK 6 production). I note that the Company did not com-
pare Siler's production on the MK 24 with Maxwell's, but
instead made the meaningless comparison between
Maxwell's MK 24 production and Siler's MK 6 production,
where so many problems existed.
The Company contended that Siler lacked "versatility"
because he was allergic to an ingredient in epoxy glue. How-
ever, he had the dermatitis (an "inflammation of the skin" )
about 1969 while working on the 40mm operation , and this
was before the 1971 layoff when he was I of 12 leadmen
retained. The dermatitis readily cleared up after he left the
40mm operation, and he has had no trouble with it since,
except for about a week in 1972 when a small number of
fuses was being run. (He continued working.) On cross-
examination, Plant Manager Jackson admitted that the
present 40mm operation which the Company is running
does not use the epoxy resins to which Siler is allergic, "As
far as I know." Therefore, I find, this was not a real consid-
eration when the Company decided to lay Siler off.
The Company had several witnesses to testify that Max-
well was the better supervisor, in explanation for laying off
Siler (who was setting up the MK 25 line and who had
previous experience in running that line) and replacing him
with Maxwell. However, when the Company called Assis-
tant Foreman Grantham as a defense witness and asked
him to compare their supervisory ability, Grantham asked,
"Do I have to?" and stated, "I had rather not." After weigh-
ing all the evidence , I find that the reasons for his reluctance
is evident. Whereas Siler was an able, competent, experi-
enced leadman, with much technical knowledge of the oper-
ations and with a considerable ability, not only in setting up
production lines and running several operations at a time,
but also in locating and remedying many mechanical and
other problems ; Maxwell had little experience as a lead-
woman, could not make mechanical repairs, and had re-
quired Grantham' s assistance in running the MK 25. When
called earlier by the General Counsel, Grantham had been
quite evasive, in an apparent effort not to give damaging
testimony against the Company. He impressed me as being
too conscientious to give the answer he knew the Company
wanted. Moreover, in view of the Company's decision to
retain its hourly supervisory personnel for the expected in-
crease in production, there was no necessity of choosing
between Siler and Maxwell, except for Plant Manager
Jackson's determination, as found above, to get rid of Siler.
E. Concluding Findings
After winning two previous elections in a 5-year period,
the Company was faced in 1972 with a tie vote (along with
4 challenged ballots and long-pending union objections).
Siler, one of its leadpersons upon whom the Company relied
to disseminate its positions to the other employees in its
communication program, had openly supported the Union
before the election, and had continued to do so thereafter.
One of the Company's former supervisors, who had become
aware of Plant Manager Jackson's determination to get rid
of Siler at the first opportunity, credibly revealed this at the
trial.
Meanwhile the plant superintendent assumed the credit
for deciding to lay off Siler, despite the Company's decision
to retain all of the other leadpersons then on the payroll (in
order to retain this valuable leadership to cope with the
expected increase in production). The apparent hope was
that this prounion leadman would be forced to take another
job or go into another business, in order that he would not
be present to campaign for the Union in the event of anoth-
er election.
Having found that the Company's defenses for the pur-
ported "layoff" are pretextual, I find that the Company
discriminatorily discharged Siler, in violation of Section
8(a)(3) and (1) of the Act.
KILGORE CORP. 803
CONCLUSIONS OF LAW
By discharging Truett Siler on November 17, 1972, be-
cause of his support of the Union, the Company engaged in
unfair labor practices affecting commerce within the mean-
ing of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act.
REMEDY
Having found that the Respodnent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
The Respondent having discriminatorily discharged an
employee, I find it necessary to order the Respondent to
offer him full reinstatement, with backpay computed on a
quarterly basis plus interest at 6 percent per annum as pre-
scribed in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Isis Plumbing & Heating Co., 138 NLRB 716 (1962),
from date of discharge to date reinstatement is offered.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
sentative, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respondent
has taken to comply herewith.
4In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
5 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
ORDER4
Respondent, Kilgore Corporation, its officers, agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for supporting International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America (UAW), or any other union.
(b) In any other manner, interfering with, restraining, or
coercing employees in the exercise of the right to self-orga-
nization, to form, join, or assist the International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), or any other labor orga-
nization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for
the purpose of mutual aid or protection as guaranteed in
Section 7 of the Act, or to refrain from any and all such
activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Truett Siler immediate and full reinstatement to
his former job or, if his job no longer exists, to a substantial-
ly equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for his lost
earnings in the manner set forth in the "Remedy" section
of the Decision of the Administrative Law Judge.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all records necessary to analyze
the amount of backpay due under the terms of this Order.
(c) Post at its plant in Toone, Tennessee, copies of the
attached notice marked "Appendix." 5 Copies of the notice,
on forms provided by the Regional Director for Region 26,
after being duly signed by Respondent's authorized repre-
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board found , after trial, that
we violated Federal Law by discharging one of our leadmen
(calling it a "layoff") because he supported a union.
WE WILL offer full reinstatement to Mr . Truett Siler,
with backpay plus 6 percent interest.
WE WILL NOT discharge any of you for supporting the
United Auto Workers (UAW), or any other union.
WE WILL NOT, in any other manner, interfere with,
restrain , or coerce our employees in the exercise of the
right to self-organization , to form , loin, or assist the
International Union , United Automobile , Aerospace
and Agricultural Implement Workers of America
(UAW) or any other labor organization , to bargain
collectively through representatives of their own choos-
ing, and to engage in concerted activities for the pur-
pose of mutual aid or protection as guaranteed in
Section 7 of the Act, and to refrain from any and all
such activities.
KILOORE CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the date of posting and must not be altered, defaced, its provisions may be directed to the Board's Office, Clifford
or covered by any other material. Davis Federal Building , Room 746, 167 North Main Street,
Any questions concerning this notice or compliance with Memphis, Tennessee 38103, Telephone 901-534-3161