Kingsbury Manufacturing Company

National Labor Relations Board - Board Decisions

Dec 8, 1938

10 N.L.R.B. 354 (N.L.R.B. 1938)

In the Matter of KINGSBURY MANUFACTURING COMPANY and JAMES
LESLIE, et al.
Case No. C-366.-Decided December 8,19-38
Toy. Manufacturing Industry-Intereference , Restraint , and Coercion : threat
to close plant because of failure to reach an agreement with employees in one
department-Discrimination : lock-out, discharge , and refusal to reinstate-Rein-
statement Ordered-Back Pay: awarded five employees from date of lock-out or
,discriminatory discharge until offer of reinstatement, except in case in which no
.exception was taken to dismissal recommendation in Intermediate Report ; then
awarded to date of Intermediate Report and from date of Order to date of
reinstatement.
Mr. Edward Schneider, for the Board.
Faulkner & Bell, by Mr. Philip H. Faulkner, and Mr. E'r est L. Bell,
of Keene, N. H., for the respondent.
Mr. Philip B. Lush, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On June 17, 1937, James Leslie filed a charge in the name of the
Amalgamated Association of Iron, Steel and Tin Workers, and on
October 27, 1937, filed an amended charge in his own name with the
Regional Director for the First Region (Boston, Massachusetts) al-
leging that Kingsbury Manufacturing Company, Keene, New Hamp-
shire, herein called the respondent, had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. On November 1,
1937, the National Labor Relations Board, herein called the Board, by
the said Regional Director, issued and duly served upon the respond-
ent a complaint and notice of hearing. The complaint alleged, in
substance, with reference to the unfair labor practices, that on March
31, 1937, the respondent had locked out its employees in its pressroom,
that it discharged and refused to reinstate certain employees in the
pressroom since the lock-out, namely ; Austin Smith, Philip Flanders,
and Napoleon Gaouette, and that it had discharged James Leslie and
Donald Clark, welders, to discourage union activity. On November
10 N. L R . B., No. 25.
354
DECISIONS AND ORDERS 355
5, 1937, the respondent filed an answer admitting the allegations con-
cerning its corporate existence and the nature of its business, including
the allegation that its raw materials and finished products move in
interstate commerce. It denied all the remaining allegations of the
complaint.
Pursuant to notice, a hearing was held in Keene, New Hampshire,
on November 8, 9, and 10, 1937, before Eugene Lacy, the Trial Ex-
aminer duly designated by the Board. The Board and the re-
spondent were represented by counsel. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all the parties. At the close of -
the Board's case counsel for the respondent made a motion to dismiss
-on the ground that there was insufficient evidence to sustain the
allegations of the complaint. This motion was denied by the Trial
Examiner. His ruling is hereby affirmed. During the course of the
hearing the Trial Examiner made several rulings on other motions
and on objections to the admission of evidence. The Board has re-
viewed the rulings of the Trial Examiner and finds that no prejudi-
cial errors were committed. The rulings are hereby affirmed.
On January 7, 1938, the Trial Examiner filed his Intermediate
Report in which he found that the respondent had engaged in the
unfair labor practices alleged in the complaint; he recommended
that the respondent cease and desist from said unfair labor prac-
tices; that the respondent offer immediate reinstatement to their
former positions to James Leslie, Austin Smith, Donald Clark, and
Napoleon Gaouette without prejudice to their seniority or other rights
or privileges; that the respondent make whole said employees for
any loss or damage that they may have suffered by reason of their
discharge; and that the respondent post proper notices of its intention
to cease and desist from said unfair labor practices. He further
recommended that the allegations of the complaint concerning Philip
Flanders be dismissed for lack of proof.
On January 25, 1938, the respondent filed exceptions to the rulings
of the Trial Examiner and to the Intermediate Report. The re-
spondent further asked -that it be permitted to file a brief. The
Board granted the respondent permission to file a brief on or before
February 5, 1938. This time was subsequently extended twice at tl e
request of the respondent and thereafter the respondent filed said
brief on March 1, 1938. Pursuant to notice duly served upon the
parties, a hearing was held before the Board on May 19, 1938, in
Washington, D. C., for the purpose of oral argument on the ex-
ceptions to the Intermediate Report and on the record. The re-
spondent was represented by counsel and participated in the oral
argument. The Board has considered the respondent's exceptions and
the brief and finds the exceptions to be without merit.
356 NATIONAL LABOR RELATIONS BOARD
On March 1, 1938, the respondent filed a motion to incorporate in
the record a certified copy of a divorce libel filed by Marion Smith
against Austin Smith, one of the employees named in the complaint.
On March 3, 1938, said'motion was denied by the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a corporation organized under the laws of the
State of New Hampshire with its principal place of business at
Keene, New Hampshire, is engaged in the manufacture, sale, and
distribution of mechanical toys. About 95 per cent, by value, of
the raw materials used in the manufacture of said toys are shipped
into the State of New Hampshire and 991/2 per cent of the finished
products of the respondent's plant are shipped to points outside of
the State of New Hampshire.
II. THE UNION
Amalgamated Association of Iron, Steel and Tin Workers is a
labor organization affiliated with the Committee for Industrial Or-
ganization. All the employees in the respondent's welding room and
pressroom , except supervisory employees, are eligible to membership.
III. THE UNFAIR LABOR PRACTICES
A. The background of the unfair labor practices
During the year 1933 an attempt was made by some of the re-
spondent's employees to organize for the purpose of collective bar-
gaining under the provisions of Section 7 (a) of the National
Industrial Recovery Act. When this attempt was made some of the
,employees, who were most actively engaged in organization work,
were discharged, and the effort to organize was abandoned. One of
those discharged was Napoleon Gaouette, a worker in the pressroom
and an active unionist. He was later reemployed by the respondent.
No further attempt to organize was made until January 1937.
During that month the respondent formulated a new policy of year-
round production to provide continuous employment. Normal pro-
duction required from 115 to 120 workers but in the past employment
had been seasonal and it had been customary to close the plant during
the winter months.
The first week in January 1937, James Leslie, who had just re-
turned to work after a lay-off of about three weeks, became interested
DECISIONS AND ORDERS 357
in the formation of a labor union . He consulted with some of the
other employees , both in the welding and pressrooms , about forming
a union and found them responsive . He then consulted with Carl
Matthews, president of the local textile union and of the Central
Labor Union of Keene, New Hampshire , who advised him to secure
the aid of Jerry Kangas, another employee. Leslie and Kangas
called a meeting for January 16, 1937. At this meeting , which was
attended by 12 or 14 of the respondent 's employees including Kangas,
Leslie, and Gaouette , it was determined that another meeting should
be called for January 23 and that, in the meantime , they would com-
municate with the New England branch of the Committee for In-
dustrial Organization to obtain information as to which affiliate of
the Committee for Industrial Organization had jurisdiction over the
workers in the respondent 's plant. A meeting was held on January
23, which was attended by a larger number of the respondent's
employees than had attended the January 16 meeting . After a dis-
cussion of unionism, it was decided to do more preliminary organiza-
tion work and to hold another meeting on January 30, 1937.
There is evidence that sometime between January 23 and January
30 a notice was posted by the respondent on the plant bulletin board
stating in substance that the respondent was tired of the continual
"sniping" that had been going on around the plant; that if the
employees had any grievances which they wished to discuss either
individually or collectively they should come to the president of
the company and present them "before they did something that they
might regret ." At the hearing the Board 's attorney asked the re-
spondent to produce this notice , but the respondent , through counsel,
denied that there ever was any such notice. We find that such a,
notice was posted because later in his testimony Kingsbury , presi-
dent of the respondent , testified , inadvertently , to some of its con-
tents. The union meeting scheduled for January 30 did not take
place.
On or about February 5,1938, most of the pressmen and most of the
welders went to a meeting with Kingsbury . At this conference, Jerry
Kangas, who acted as spokesman , told Kingsbury that most employees
in the industry were receiving a 5 to 10 per cent raise in wages and
that the respondent's employees felt that they, too, were entitled to
such a raise . At this point , Kingsbury read a statement to the em-
ployees setting forth the respondent 's financial condition and stating
that the respondent intended to raise wages on April 1 , 1937. After
reading this statement Kingsbury told the employees that it was pos-
sible to give this raise at once but that if the raise was given immedi-
ately it would necessitate a cut in working hours from the current 44
hours per week to 32 hours per week. He further stated that if the
147841-30-vol 10-24
358 NATIONAL LABOR RELATIONS BOARD
employees waited until April 1, 1937, a 10-per cent raise would be
given without any change in hours. The employees were satisfied
to wait and consequently no further action was taken to establish the
Union until nearly two months later.
B. The lock-out and refusal of reinstatement
On or about March 26, 1937, the respondent posted a notice on its
bulletin board in which the new pay scale was announced. The new
scale. gave a flat 10-per cent increase to those who were working on a
salary basis. There was also a 5-per cent increase in the piece rate
and a 5-per cent increase in the hourly quotas of the piece workers.
Thus, if the piece workers could speed up their production 5 per cent,
it would be possible for them to obtain the equivalent of a 10-per cent
increase in wages. Many of the piece workers were dissatisfied with
this proposal because they had understood that there would be a flat
10-per cent increase in the piece rate. On March 27 a union meeting
was held. This meeting was attended by about 20 of the respondent's
employees. No action was taken at this meeting. The scheduled
increase was discussed but another meeting was called for the follow-
ing night. At the meeting on March 28 two identical petitions were
prepared. one to be signed by the men and the other by the women.
The petitions requested the Committee for Industrial Organization
to grant the employees a charter. The petition for the men was
signed by all the men attending the meeting and was then given to
Napoleon Gaouette to circulate to obtain additional signatures. The
petition for the women was given to James Leslie to circulate among
the women workers. Leslie was to be assisted in this work by
Donald Clark and one Johnston. No attempt was made by these men
to obtain any additional signatures on their petition until the follow-
ing Tuesday night, March 30, 1937. Kingsbury testified that at about
this time he learned that the workers were dissatisfied and that they
desired a conference with the management. Accordingly, on the
morning of March 30 a notice was posted on the bulletin board by
the respondent suggesting that a conference be held at 2 o'clock in
the afternoon. The notice described the respondent's price policy
stating, in substance, that despite the advance in the price of raw ma-
terials and cost of operations the respondent had not increased its
prices because if the prices of its finished product were increased by
10 per cent it would lose one-third of its business. The notice ended
with this statement : "It is not possible to maintain the low price
schedule with any further increase in labor costs."
In accordance with the notice, at two o'clock that afternoon the
pressroom and welding-room employees as a group went to see Kings-
bury. He asked them if there were any questions that they would like
DECISIONS AND ORDERS 359
to ask concerning the policies of the respondent. There was some
expression of individual opinion on wages and working conditions,
and Kingsbury asked the men to get together and decide what they
wanted. After the meeting he posted another notice on the bulletin
board asking the employees to formulate their demands and to submit
them through Jerry Kangas, who had acted as their spokesman during
previous conferences. The notice invited any individual or group of
individuals who were of the opinion that the collective demands were
insufficient or too drastic to discuss the situation with the management.
When the demands of the group were formulated a committee was
.appointed to present them to the management. This committee con-
sisted of Kangas, as requested by the management, and O'Neill and
Hammond. In accordance with the respondent's invitation, the unani-
mous demands of the men in the pressroom were presented to Kings-
bury by the committee on March 31. The committee asked that in the
future a rate be paid on piece work which would enable the men to
make 40 cents per hour on work on which they had heretofore made
34 to 36 cents per hour. Kingsbury informed Kangas, O'Neill, and
Hammond that he could not give them an immediate answer but that
they would have their answer during the day.
The answer came in the form of another notice which was posted
on the bulletin board the same afternoon. This notice stated that the
pressroom would close down that afternoon at 5 o'clock; that the rest
of the plant would close Saturday noon and that the closing was
caused by the inability of the management to meet the demands of a
group in the pressroom. It then set forth two choices that were before
the management. The first choice was to stay closed until such time
as there was a sufficient volume of orders on hand to justify the reopen-
ing of the plant, which the management indicated would be around
July 1; the second choice was to accept for immediate reemployment,
the men, if any, who were satisfied with the then existing rate of pay.
The notice ended with an expression of regret on the part of the man-
agement that this hardship had to be brought on "the many loyal
workers in other departments whose full cooperation and application
would otherwise have made possible the plan of full-time employment
through all or most of the year." In accordance with the notice the
pressroom closed that evening but the remainder of the plant did not
close the following Saturday as the notice had stated. During the
next few days after the shut-down there was some slow-down and a
few lay-offs in the other departments of the plant, but there was never
any shut-down of the other departments.
On April 1, 1937, the morning after the pressroom shut-down,
Kingsbury and Freeman, the foremen of the pressroom, met and
discussed the employees whom they did not wish to rehire.
360 NATIONAL LABOR RELATIONS BOARD
On April 1 a notice and a final check were sent to some of the-
employees whom Kingsbury and Freeman had decided they did not
wish to rehire. The notices stated that the check completed the pay-
ment of wages due and terminated the individual's employment with
the respondent. Among those in the pressroom receiving such notices
and checks were Gaouette, Johnston, Sullivan, Kangas, and Smith.'
Philip Flanders was discharged at the close of business on April 1.
After-the conference between Kingsbury and Freeman on the morn-
ing of April 1, the latter went to the homes of some of the men in the
pressroom and offered them reemployment at the increased wage as-
originally announced by the respondent. Among those who received'
an invitation to return to work in the pressroom were O'Neill, Monroe,.
Dee, and Cross. Among those not asked to return to work were Sul-
livan, Gaouette, and Kangas. Each worker, who was reemployed, was
told to report to Kingsbury personally on Thursday, April 1, or
Friday, April 2, 1937. '
On the morning of April 3 the respondent held a mass meeting of
its employees at which Kingsbury discussed the subject of unionism.
Kingsbury had heard rumors that the plant would be picketed and
that an attempt would be made to close it. In the afternoon of that
day a resume of Kingsbury's speech was reduced to writing and posted
on the bulletin board of the plant. The notice said in substance that
the pressroom would reopen on Monday morning, April 5; that some
of the old employees had agreed to return to work and that new
employees had been hired to replace some of the old workers ; that the
respondent was not opposed to any employee, who desired to do so,
joining a union; that the respondent objected to the coercion of its
employees; and that the respondent felt that it could count on the
support of its workers.
After a futile attempt on the part of some of the discharged em-
ployees to communicate with John Davie, State Commissioner of
Labor, a meeting was finally arranged between the respondent and
the discharged employees with the exception of those who had ob-
tained other employment. The meeting was held in a local hotel
during the week of April 12 and was attended by Davie and Kings-
bury. At this meeting each employee was charged with whatever
failures or mistakes the respondent thought were properly charge-
able to him and each was instructed to report to Kingsbury in the
morning. The employees named in the complaint, as well as other
employees, reported to Kingsbury for individual conferences. At
1 Sullivan later was returned to work for a short period and then left the respondent's
employ to work elsewhere . Kangas, who was president of the Union , although refused
reinstatement by Kingsbury , was recommended by Kingsbury for work in his brother's
plant, the Kingsbury Tool and Die Works , and had been employed there since a short
time after his dismissal by the respondent.
DECISIONS AND ORDERS 361
the individual conferences Kingsbury refused to reemploy any of
the employees named in the complaint.
There can be no question concerning the reason for the shut-down
•of the pressroom on March 31. The self-organization of a group of
the respondent's employees for the purpose of a collective effort to
better their wages was the primary, if not the sole, cause for the shut-
down. The notice posted by the respondent on its bulletin board
attributes the closing "to our inability to meet the demands of a
group 2 in the pressroom." This notice asserts that the shut-down
was due to the respondent's financial inability to meet the em-
ployees' collective demands. There was no showing made by the
respondent to support this assertion, but in our view of the case it
is unnecessary for us to decide whether or not in fact the respondent
was financially unable to grant the increases asked. Assuming the
respondent's representation of its financial condition to be true, it is
sufficient to say that the respondent met the mere request 3 for an
adjustment, which request it had invited, with an abrupt shut-down.
It is to be noted that the notice ascribes the demands to only a group
in the pressroom although the demand Was the unanimous demand
,of all the employees in the pressroom. This is significant because
when the respondent began to reinstate the employees on the next
day it omitted this "group" which it apparently held responsible
for the demands.
The respondent's real plan and intention in the shut-down is con-
-elusively shown by its subsequent conduct. On the day after the
shut-down the respondent immediately decided which employees it
would not rehire and then proceeded to solicit the tractable em-
ployees to return to work on its own terms. The basis for the selec-
tion of those requested to return to work is revealed by Kingsbury's
explanation of his reinstatement of Sullivan. Kingsbury explained
"I felt that he had signed the union agreement, or gone into the
Union because he was willing to go along with the few that were
actively interested in it; but after talking with him I felt that he
-was himself satisfied, and had just gone along with the others who
-were more actively interested in the proposition."
The plan was successful and within a short period all but the em-
ployees the respondent had determined not to reinstate, were back
at work. It is plain from the record that the respondent felt that
there was a group in its pressroom who were successfully unifying
the employees into an effective bargaining unit and to stop this self-
organization and to rid itself of those responsible for it, the respond-
2 Italics ours.
3 It is to be noted that the record discloses no evidence of any strike action either
present or contemplated if the respondent did not accede to the employees' request The
respondent does not contend that its action was induced by anything other than the
demands referred to in the notice posted by the respondent.
362 NATIONAL LABOR RELATIONS BOARD
ent resorted to the precipitate shut-down of the pressroom , lock-out
of its employees , and refusal to reinstate the leaders.
The respondent urged certain affirmative defenses for its failure
to reinstate the pressroom employees who are named in the com-
plaint. It asserts that it refused to reinstate Philip Flanders, the-
timekeeper in the pressroom with three years' service , because he had.
disclosed the wages of certain employees to other employees . Kings-
bury considered the disclosure of such information to be a breach.
of confidence injurious to the worker whose salary was disclosed.
Kingsbury stated that it had also come to his attention that Flanders,
was running a fire-alarm pool and that he had failed to "pay off" in
full to the winner of the pool . In neither instance was complaint,
made to Kingsbury about Flanders by anyone alleged to have been
injured by his activities . Flanders had never been cautioned or
warned because of either activity . The pool was run with the con-
sent and knowledge of Kingsbury and he had no objection to such-
a pool. Kingsbury claims that he refused to reinstate Flanders when
the latter failed to pay the full prize to the winner because he felt
that this failure would cause friction in the shop . He admitted that
the person who had won the prize had not complained to him about
not being paid and there is evidence to indicate that a satisfactory
arrangement had been made between Flanders and the winner for
the payment of the prize.
Kingsbury stated that he refused to reinstate Napoleon Gaouette
because his foreman, Freeman, told him that Gaouette was holding
up production . Gaouette started to work for the respondent 9 or 10
years prior to his discharge . While in 1933 Gaouette had admittedly
indicated to other employees that they should-not exceed a certain
production quota, there was no showing other than Kingsbury's
statement that since that date he had either done or said anything to
affect production adversely . Freeman was on the stand twice during
the course of the hearing and neither stated that Gaouette was hold-
ing up production , nor that he had told Kingsbury that Gaouette
was holding up production.
The respondent , in defense of its refusal to reinstate Austin Smith,
urged that Smith, on occasions , had come to work in an intoxicated
condition , and that on one occasion it had been necessary to send him
home because he was unable to do his work . Smith was also charged
with drinking with other persons around the plant. Counsel for the
respondent cross-examined Smith at some length, and Smith cate-
gorically denied that he had ever been under the influence of liquor
at any time during working hours. He was not asked if he was
sent home from work on any occasion because of inebriation. Smith
had worked for the respondent satisfactorily for about a year. All
of the alleged incidents that the respondent urges as reasons for its
DECISIONS AND ORDERS 363
failure to reinstate him occurred a substantial time prior to the lock-
out, and the respondent advances no immediate reason for its action.
We do not find such evidence persuasive as the asserted infractions
of rules, if committed, were committed some time prior to the lock-
out. Under all the circumstances we do not find these alleged causes
for the refusal to reinstate Flanders, Gaouette, and Smith convincing
and cannot credit them as the real reasons why the respondent de-
nied these employees reinstatement.
We find that the respondent closed the pressroom on March 31,
1937, and locked out employees therein, and thereafter refused to
reinstate Austin Smith, Napoleon Gaouette, and Philip Flanders,
thereby discouraging membership in the Union and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
C. The discharges
James Leslie, a welder, had been employed by the respondent since
the first of June 1933 during such time as the plant had been in opera-
tion. His earnings were between $20 and $24 per week. He was dis-
charged on April 3, 1937. Leslie testified that his work had been
praised by Boyer, a subforeman, on two or three occasions and that
on only one occasion did Boyer tell him that one of his welds was not
holding.
James Leslie can properly be called the instigator of the Union in
the respondent's shop. It was entirely due to his activity that the
union movement originated in the plant. In the course of this ac-
tivity he circulated the petition for the women employees to sign and
on the next day he was notified of his discharge to become effective
the following Saturday.
The respondent denies that it discharged James Leslie because of
his union activity and contends that he was discharged because of
defective work. There was testimony to indicate that during a period
of two or three weeks 400 defective toys were taken out by the in-
spectress because of defective work done in the welding process on
the rear fenders. This was the operation on which Leslie was en-
gaged and he was the only one doing. this particular work. The re-
spondent claims that three or four defective pieces in this operation
in the course of a day's work was considered normal, but that 10
defective pieces in the same period was indicative of inefficient work-
manship. It was the duty of Boyer, the subforeman, to make an
occasional inspection of each man's work each day, and to check the
machines with which the work was being done. He testified that he
frequently found defective work that had been done by Leslie and
that he returned it to him to be re-welded. An inspectress, Clara
Ball Wellington, testified that she had found from 30 to 40 bad and
364 NATIONAL LABOR RELATIONS BOARD
defective welds per day on the rear fenders of the toy ladder-truck
on which Leslie was working for a period of about three weeks next
preceding Leslie's discharge. She further testified that she mentioned
these defects to Leslie but that she could not remember whether it
was in 1936 or in 1937 that she had spoken to him about it.
Leslie explained that if there was any substantial increase in the
number of defective pieces which he had welded, it was entirely
attributable to the machine which be was using. The machine needed
overhauling. He had called this to the attention of Boyer on many
occasions and he was told that he would have to keep on working
with it until it could be spared long enough for an overhaul job.
When Boyer was questioned on cross-examination whether or not
Leslie had requested that he repair his machine, he was evasive and
replied : "No, I cannot say that I remember too much about his asking
me to repair his machine." Under the circumstances, we find that
Boyer was requested by Leslie on several occasions to repair Leslie's
machine.
The contentions of the respondent as to the reason for discharging
Leslie are not convincing. It is difficult to believe that the number
of defective toys suddenly increased tenfold and that this condition
was allowed to continue for a period of weeks without some drastic
and immediate action being taken, unless there was good cause shown
for the increase. It is probably true that there was an increase in
the number of defective toys that were being produced and that this
increase was due to the failure of the welds on the rear fenders to
hold. However, the machine that Leslie was compelled to use was
in need of overhauling and we believe that it was the defective
machine that was causing the trouble rather than his inefficient work-
manship, which would tend to explain why no action was taken
against Leslie prior to his discharge.
The respondent states that in order to increase his production and
wages Leslie attempted to work too fast and that his excessive speed
caused the points of his machine to "mushroom," which in turn
caused his work to become deficient in quality. Leslie worked on a
piece-work basis and consistently earned $20 to $25 per week. Since
no records or testimony' were introduced to show that he had either
earned larger wages or produced morel pieces during the last three
weeks of his employment. than he had theretofore, it is unlikely that
any increase in defective toys was attributable to Leslie's high-speed
work. We find that the respondent discharged and refused to rehire
James Leslie because of his union membership and activity, thereby
discouraging membership in a labor organization by discrimination
in regard to hire and tenure of employment, thereby also interfering
with, restraining, and coercing its employees in the exercise of the
rights' guaranteed in Section 7 of the Act.
DECISIONS AND ORDERS 365,
Donald Clark was also a welder and had been employed by the
respondent as such for three seasons. He was earning $25 to $2T
per week at the time of his discharge on April 2, 1937. Although
his work was occasionally criticized during the course of his employ-
ment, he received no more criticism than any of the other welders.
Donald Clark .was an active unionist. He was one of those who,
signed the petition to the Committee, for Industrial Organization.
He went with Leslie to solicit signers on the girls' petition to the
Committee for Industrial Organization. He also attended the meet-
ings with, Kingsbury when the welding and pressrooms called OD'
him in a body to obtain concessions.
The respondent states that it was necessary to dismiss Donald
Clark because of defective workmanship. There was no evidence of
any probative value introduced to indicate the existence of such defi-
cient work. Clark was a welder in the same department and pre-
sumably worked on the same toy as Leslie. His work went through'
the, same inspection as Leslie's and was examined by the same
inspectress. The exact weld which he was making does not appear
from the record, but Clara Ball Wellington, the inspectress, who,
testified concerning the large quantity of Leslie's defective welds,.
stated that she never came across any defective front-fender welds
and that the only defective welds, other than Leslie's, that she did
find on this toy, was an. occasional dashboard defect. She stated,-
"Might get about three toys a day, not over that. Some days not even*
that, not any." Since, in the normal course of her inspections, she
would have found any defects in Clark's welding and apparently
did not, we cannot find that Donald Clark was guilty of inferior
workmanship.
The respondent states that the union activity of Clark had nothing
to do with his dismissal. We regard it as significant that within
2 days of the time that the committee composed of Leslie, Clark, and
Johnston made their first calls on the women employees to ask them-
to sign the petition to the Committee for Industrial Organization all'
three were discharged.
We find that the respondent discharged and refused to rehire
Donald Clark because of his union membership and activity and
thereby interfered with, restrained, and coerced its employees in the
exercise of their rights guaranteed in Section 7 of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent, as set forth above,,
occurring in connection with the operations of the respondent de-
scribed in Section 1 above, have a close, intimate, and substantial
relation to trade, traffic, commerce, and transportation among the
366 NATIONAL LABOR RELATIONS BOARD
several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
THE REMEDY
We have found that the closing of the pressroom on March 31,
1937, was a lock-out; that Napoleon Gaouette, Philip Flanders, and
Austin Smith were victims of that lock-out; that the respondent failed
to reemploy these workers for the purpose of discouraging member-
ship in a labor organization and that the discharge of James Leslie
and Donald Clark were discriminatory discharges to discourage mem-
bership in a labor organization. Accordingly, we shall order the
respondent to reinstate all of the above-mentioned employees to their
former positions without prejudice to their seniority and any other
rights and privileges.
We shall order the respondent to make Napoleon Gaouette, Austin
Smith, James Leslie, and Donald Clark whole for any losses of pay
they have suffered by reason of their respective discharges or failure
'of reinstatement by payment to each of them of a sum equal to the
amount which he normally would have earned as wages from March
31, 1937, to the date of the offer of reinstatement less his net earnings 4
during said period.
Since the Trial Examiner in his Intermediate Report recommended
the dismissal of the case of Philip Flanders we will order back pay
*for him only from the date of his discharge until the date of the
Intermediate Report and from the date of our decision to the date
of offer of reinstatement .5
Upon the basis of the foregoing findings of fact and upon the
•entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Amalgamated Association of Iron, Steel and Tin Workers is a
labor organization within the meaning of Section 2 (5) of the Act.
2. 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 (1) of the Act.
3. The respondent, by discriminating in regard to the hire and
tenure of employment of Napoleon Gaouette, Philip Flanders, Austin
4 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent, which would not have been incurred but for his unlaw-
ful discharge and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of America, Lumber and Sawmill Workers Union, Local 2.590. 8 N. L. R B. 440.
5In the Matter of Kentucky Firebrick Company and United Brick d Clay Workers of
America, Local Union No. 510 , Order enforced : National Labor Relations Board v. The
Kentucky Firebrick Company, 99 F. (2d ) 89 (C C. A. 6th ), decided June 29, 1938.
DECISIONS AND ORDERS 367
Smith, James Leslie, and Donald Clark, thereby discouraging member-
ship in the union, has engaged in and is engaging in an unfair labor
practice within the meaning of Section 8 (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
.affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Kingsbury Manufacturing Company, Keene, New Hamp-
shire, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in any labor organization by dis-
criminating in regard to hire or tenure of employment or any term or
condition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing or to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Philip Flanders, Napoleon Gaouette, Austin Smith,
James Leslie, and Donald Clark immediate and full reinstatement
to their former positions without prejudice to their seniority or other
rights and privileges;
(b) Make whole Napoleon Gaouette and Austin Smith for any
loss they may have suffered by reason of the lock-out and the failure
of the respondent to reinstate said employees to their former posi-
tions by payment to each of them respectively, of a sum of money
equal to that which each of them would normally have earned as
wages during the period from March 31, 1937, to the date of the
offer of reinstatement, less his net earnings during said period; de-
ducting, however, from the amount otherwise due to each of said
employees monies received by said employees during said period for
work performed upon Federal, State, county, municipal, or other
work-relief projects, and pay over the amount so deducted to the
appropriate fiscal agency of the Federal, State, county, municipal,
or other government or governments which supplied the funds for
said work-relief projects;
(c) Make whole James Leslie and Donald Clark for any loss they
may have suffered by reason of their discharge by payment to each
368 NATIONAL LABOR RELATIONS BOARD
of them, respectively, of a sum of money equal to that sum which they
would normally have earned from April 3, 1937, to the date of the
offer of reinstatement less his net earnings during said period; de-
ducting, however, from the amount otherwise due to each of said
employees monies received by said employees during said period
for work performed upon Federal, State, county, municipal, or other
work-relief projects, and pay over the amount so deducted to the
appropriate fiscal agency of the Federal, State, county, municipal, or
other government or governments which supplied the funds for said
work-relief projects; -
(d) Make whole Philip Flanders for any loss he may have suf-
fered by reason of the lock-out and the failure of the respondent
to reinstate him by payment to him of a sum equal to that which he
would normally have earned as wages during the period from April 1,
1937, to the date of the Intermediate Report herein, less his net earn-
ings during said period, and' a further sum of money equal to that
which he would normally have earned as wages from the date of this
decision to the date of the offer of reinstatement ordered herein less
his net earnings during said period; deducting, however, from the
amount otherwise due to said employee monies received by said em-
ployee during said period for work performed upon Federal, State,
county, municipal, or other work-relief projects, and pay over the
amount so deducted to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for said work-relief projects;
(e) Post notices in conspicuous places in the respondent's plant
at Keene, New Hampshire, and maintain said notices for a period of
at least thirty (30) consecutive days, stating that respondent will
cease and desist as aforesaid ;
(f) Notify the Regional Director for the First Region in writing
within ten (10) days from the date of this' Order what steps the
respondent has taken to comply herewith.
SAME TITLE]
AMENDMENT TO DECISION
AND
ORDER
I>ecen?iler 3f,. 1938
On December 8, 1938, the National Labor Relations Board, herein-
after called the Board, issued its Decision and Order in the above-
entitled matter. On December 17, 1938, the respondent filed with the
Board a motion to vacate the Decision and Order and reconsider the
DECISIONS AND ORDERS 369
case on the ground that the decision was based on incorrect evidence
due to an error in the transcript of the record.
In the third sentence of the tenth paragraph of section B of the
Decision , we stated , "The basis for the selection of those requested
to return to work is revealed by Kingsbury's explanation of his rein-
statement of Sullivan . Kingsbury explained `I felt that he had
signed the union agreement , or gone into the Union because he was
willing to go along with the few that were actively interested in it;
but after talking with him I felt that he was himself satisfied, and
had just gone along with the others who were more actively interested
in the proposition."'
Upon investigation it appears that, as the respondent asserts, the
quoted testimony had been incorrectly transcribed in the record. The
correct testimony was :
I felt that he had signed the unanimous agreement or gone into
the unanimous agreement because he was willing to go along with
the few that were very actively interested in it; but after talking
with him I felt that he was himself satisfied , and had just gone
along with the others who were more actively interested in the
proposition.
In order to correct the misquotation of the witness ' testimony, the
Decision is hereby amended by striking the third sentence of the tenth
paragraph of section B of the Decision and substituting therefor the
following:
The basis for the selection of those requested to return to work
is revealed by Kingsbury's explanation of his reinstatement of
Sullivan. Kingsbury explained , "I felt that he had signed the
unanimous agreement , or gone into the unanimous agreement be-
cause he was willing to go along with the few that were actively
interested in it; but after talking with him I felt that he was
himself satisfied, and had just gone along with the others who
were more actively interested in the proposition."
Pursuant to the respondent 's motion, the Board has reconsidered
the case. The Board is of the opinion that the amendment does not
alter its ultimate findings of fact. With the amendment above noted
the Board 's findings of fact, conclusions of law, and order, as set
forth in its Decision and Order of December 8, 1938, are hereby
affirmed.
Except to the extent granted as hereinabove indicated , the re-
spondent 's motion is hereby denied.
10 N L R. B., No. 25a.