Kit Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 17, 1953

105 N.L.R.B. 597 (N.L.R.B. 1953)

KIT MANUFACTURING COMPANY 597
KIT MANUFACTURING COMPANY and WOODWORKERS
LOCAL UNION NO. 530, UNITED BROTHERHOOD OF CAR-
PENTERS & JOINERS OF AMERICA, A. F. OF L. Cases
Nos. 21-CA-1490 and 21-CA-1502. June 17, 1953
DECISION AND ORDER
On March 24, 1953, Trial Examiner MartinS.Bennett issued
his Intermediate Report in the above -entitled proceeding finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices in violation of Section8 (a) (1), (2), and (3)
of the Labor Management Relations Act, as amended, and recom-
mending that the Respondent cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent had not engaged in certain unfair
labor practices in violation of Section 8 (a) (3) of the Act and
consequently recommended dismissal of the allegation of the
amended complaint alleging the discriminatory discharge of
Paul Killian. Thereafter the Respondent filed exceptions to the
Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National
Labor Relations Act, the Board has delegated its powers in
connection with this proceeding to a three-member panel
[Members Houston, Murdock, and Styles] .
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
commit. ed. The rulings are hereby affirmed. We consider that
the Trial Examiner's adjournment at an early hour on the
second and third days of the 4-day hearing allowed reasonable
time for preparation of the Respondent's defense to the amend-
ments to the complaint concerning the 8 ( a) (3) allegation as
to Killian and the 8 (a) (2) allegation. The Board has considered
the Intermediate Report, the exceptions, and the entire record
in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner concerning the 8 (a)
(3) and 8 (a) (1) violations, with the additions and modifications
appearing below. We do not adopt the 8 (a) (2) and its attendant
8 (a) (1) finding , conclusions , and recommendations.
1. As to the finding that the Respondent violated Section 8
(a) (3) and 8 (a) (1) of the Act when it discharged Van Dyke on
the pretext of his poor attendance, we agree with the con-
clusion of the Trial Examiner. We adopt this finding because
the General Counsel--upon whom the burden of proof in this
instance falls--has substantiated the allegation of the com-
plaint by a preponderance of probative evidence.
2. Concerning the Trial Examiner's 8 (a) (2) and 8 (a) (1)
finding, we note that the General Counsel in amending the
complaint in this regard at the hearing--after evidence con-
cerning the $450 payment to Williams had been received--
specifically limited the amendment to "support to the so-
called First Independent Union by the payment of the sum of
105 NLRB No. 85
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$450" to Williams "in violation of Section 8 (a) (1) and 8 (a)
(2) of the Act." Later in the hearing the Trial Examiner ob-
served that there was no allegation that the "new Independent
was an illegally assisted union." The record shows that the
first Independent had, in effect, been disestablished in Feb-
ruary 1952 pursuant to withdrawal of charges and a settle-
ment agreement. That its existence continued despite those
developments is not established; hence the payment of expense
money in connection with it to Williams, at his belated request,
does not constitute support to the first organization in our
estimation. Nor do we think that the Respondent, in paying these
expenses of the first Independent on the unexpressed hope that
the money be channeled to a new independent, thereby con-
tributed support to a labor organization within the meaning of
Section 8 (a) (2) of the Act--assuming that the complaint in
this proceeding had been amended to allege such support.
We consider the Respondent's admission that it hoped for such
channeling of the funds, without more, too conjectural to sup-
port such an allegation had it been made and litigated.
CONCLUSIONS OF LAW
For the Trial Examiner's conclusion of law No. 3 we sub-
stitute the following:
3. Respondent has not, by the payment of $450 to employee
Williams in payment of expenses incurred in connection with the
labor organization disestablished some months before said
payment, contributed support to a labor organization within the
meaning of Section 8 (a) (2) of the Act.
ORDER
Upon the basis of the entire record in this case, and pur-
suant to Section 10 (c) of the National Labor Relations Act,
as amended , the National Labor Relations Board hereby orders
that Respondent Kit Manufacturing Company, Long Beach,
California, its officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in Woodworkers Local Union
No. 530, United Brotherhood of Carpenters & Joiners of
America, A. F. of L., or in any other labor organization of
its employees, by discharging employees or discriminating in
any manner with respect to hire, tenure, or any term or con-
dition of employment, except to the extent permittedby Section
8 (a) (3) of the Act.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist
the above-named or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
KIT MANUFACTURING COMPANY 599
from any or all of such activities, except to the extent that such
right may be affected by an agreement requiring membership
in a labor organization , as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Offer to Robert Williams and Reynold Van Dyke im-
mediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
pay suffered, in the manner set forth in "The Remedy"
section of the Intermediate Report.
(b) Upon request, make available to the Board and its
agents for examination and reproduction all payroll records,
timecards , personnel records and reports , and all other
records necessary to analyze and compute back pay and other
reinstatement rights required by the Order herein.
(c) Post at its Long Beach, California, plant copies of the
notice attached hereto and marked "Appendix A."' Copies
of said notice, to be furnished by the Regional Director for the
Twenty-first Region, shall, after being duly signed by Re-
spondent, be posted by it immediately upon receipt thereof
and maintained by it for a period of sixty (60) consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-first Region
(San Francisco, California) in writing within ten (10) days
from the date of this Order what steps the Respondent has
taken to comply therewith.
IT IS FURTHER ORDERED that the complaint, insofar as
it alleges that the Respondent discriminatorily discharged
Paul Killian in violation of Section 8 (a) (3) of the Act, and
insofar as it alleges that the Respondent violated Section 8 (a)
(2) of the Act, be, and it hereby is, dismissed.
'In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT discourage membership in Woodworkers
Local Union No. 530, United Brotherhood of Carpenters &
291555 0 - 54 - 39
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joiners of America, A. F. of L., or in any other labor
organization of our employees , by discriminating in any
manner in regard to hire, tenure , or any other term or
condition of employment , except to the extent permitted
by Section 8 (a) (3) of the Act.
WE WILL offer to the employees named below immediate
and full reinstatement to their former or substantially
equivalent positions , without prejudice to any seniority or
other rights and privileges , and make them whole for any
loss of pay suffered as a result of the discrimination
against them . Their names are:
Robert Williams
Reynold Van Dyke
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 labor organizations, to
join or assist the above -named or any other labor organi-
zation, to bargain collectively through representatives of
their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from Zny or all
such activities , except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization as a condition of employment in con-
formity with Section 8 (a) (3) of the Act.
All our employees are free to become or remain, or re-
frain from becoming or remaining , members of any labor
organization , except to the extent above stated.
KIT MANUFACTURING COMPANY,
Employer.
Dated . .. . ............ By ....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof , and must not be altered, defaced, or covered by any
other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations Act, 61 Stat.
136, herein called the Act, is based upon charges duly filed by Woodworkers Local Union No.
530, United Brotherhood of Carpenters & Joiners of America , A. F. of L., herein called the
A. F. of L., against Kit Manufacturing Company, herein called Respondent . Pursuant to said
charges, the General Counsel of the National Labor Relations Board issued a complaint on
January 8, followed by a consolidated and amended complaint on January 13, 1953, against
Respondent , alleging that it had engaged in unfair labor practices within the meaning of
KIT MANUFACTURING COMPANY 601
Section 8 (a) (1) and (3) of the Act Copies of the charges, the complaint, the consolidated
and amended complaint , and notice of hearing thereon were duly served upon Respondent
Specifically, the complaint alleged that Respondent had discharged Robert Williams on or
about August 8, 1952, and Reynold Van Dyke on or about August 18, 1952, and had thereafter
denied them reinstatement , because of their concerted activities and because they had joined
orassistedthe A.F. of L. During the hearing, the undersigned granted a motion by the General
Counsel, over Respondent ' s objection , to amend the complaint by adding allegations that (1)
employee Paul Killian had been discriminatorily discharged on or about October 7, 1952,
because of his union and concerted activities , and (2) Respondent had between May 27 and June
5, 1952, illegally assisted and contributed support to an independent labor organization, all
within the meaning of Section 8 (a) (1), (2), and (3) of the Act. N.L.RB. v Sterling Furniture
Co , 202 F 2d 41 (C. A. 9), N.L.RB. v Armato, 199 F. 2d 800 (C. A. 7), N.L.R.B. v Dimon
Coil Co , 201 F. 2d 484 (C. A. 2) ; and Coca-Cola Bottling Co v. N.L.R.B., 195 F 2d 955
(C. A. 8)
Pursuant to notice , a hearing was held at Los Angeles, California, from February 9 through
12, 1953, before the undersigned Trial Examiner , Martin S. Bennett , duly designated by the
Associate Chief Trial Examiner . All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses , and to introduce evidence bearing on the issues
Respondent , which had filed no answer to the complaint, was permitted to orally state its
answer on the record, it then denied that it had engaged in the unfair labor practices alleged
in the complaint . Motions by Respondent (1) to sever the cases and (2 ) to sequester the alleged
discriminatory dischargees were denied . At the close of the hearing , the parties were af-
forded an opportunity to argue orally and file briefs and/or proposed findings and conclusions
Oral argument was presented and, after the close of the hearing , the time for filing briefs
was extended on motion by Respondent. Although received late, Respondent ' s brief has been
considered.
Upon the entire record in the case and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
L THE BUSINESS OF RESPONDENT
Kit Manufacturing Company is a California corporation which maintains its principal office
and place of business at Long Beach , California , where it is engaged in the manufacture, sale,
and distribution of house trailers and moveable houses During the 12-month period prior
to January 8, 1953, Respondent purchased materials and supplies valued in excess of $ 100,000
which were shipped to its place of business from points outside the State of California During
the same period , Respondent shipped house trailers and moveable houses valued in excess of
$ 100,000 to points outside the State of California
I find that Respondent is engaged in commerce within the meaning of the Act
IL THE LABOR ORGANIZATION INVOLVED
Woodworkers Local Union No 530, United Brotherhood of Carpenters & Joiners of America,
A. F. of L , is a labor organization admitting to membership the employees of Respondent
III. THE UNFAIR LABOR PRACTICES
A. Introduction and background
The primary issue presented herein is Whether Respondent was unlawfully motivated in
discharging the 3 employees named above At the time material herein Respondent ' s plant
had between 150 and 170 employees Included in this total was a group of leadmen in the ratio
of 1 for every 10 employees . Admittedly supervisors were 2 foremen, a plant superintendent,
and a general superintendent Respondent stipulated that these leadmen, although not pos-
sessing the right to hire and fire, did have the power to effectively recommend such action
In view of the foregoing stipulation, as well as the ratio of leadmen to rank-and - file employ-
ees, I find that these leadmen were supervisory employees within the meaning of the Act See
Empire Pencil Co., 86 NLRB 1187, enfd. 187 F. 2d 334 (C. A. 6), and Wayside Press, Inc , 103
NLRB 22
60Z DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is considerable evidence concerning the collective-bargaining history in the plant
and it sheds much illumination on the subject matter directly at hand Respondent's plant was
represented for several years by the United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, CIO, herein called the CIO, and Respondent was under contract
with that organization through 1951. In August of that year, a so-called "Kit Bonus Commit-
tee" was established in the plant, with Robert Williams, whose discharge is hereinafter
discussed, as its chairman In September, a labor organization entitled "Kit Trailer In-
dependent Employees Association" appeared on the scene, with Williams as its president
On or about November 15, 1951, the CIO filed charges that the aforementioned "Kit Bonus
Committee" and "Kit Trailer Independent Employees Association" were company-dominated
labor organizations The record amply demonstrates that such was the case and that Williams,
at the suggestion and with the assistance of President James Nicholson of Respondent, had
been instrumental in forming the latter organization which was created out of the Bonus
Committee.
A complaint did not issue in that proceeding, Case No. 21-CA-1271, as it was settled by
Respondent in February of 1952. As part of the settlement agreement, Respondent agreed to
disestablish the "Committee" as well as the "Association" and not to recognize it or any
successor thereto A notice to that effect was duly posted in the plant by Respondent, it is to
be noted that Williams, as the head of these two organizations, had regularly met with Presi-
dent Nicholson of Respondent relative to grievances and conditions of employment After the
disestablishment of these unlawful labor organizations, the plant operated for a period of
time with no formal representation. However, the record demonstrates that Williams continued
to represent the employees. In March of 1952, according to Williams, Nicholson informed him
that he might continue to represent the employees , as an individual , until a new labor organi-
zation appeared on the scene . Thereafter , grievances relative to working conditions were
brought to Williams' attention by the employees concerned and he regularly took them up with
representatives of management, including President Nicholson. i
The chief grievances of the men fell into three categories: (1) Rebuilding the paint shop;
(2) installation of electric water coolers , and (3) revising the computation of the bonus plan,
the latter consisted of an incentive plan pursuant to which a bonus was paid for production
above a designated quota. It appears that Nicholson had promised to remedy these conditions
but had not done so, for reasons not material herein.
During June, Williams informed Nicholson that he and one Hobart Atnip, the latter vice
president of the disestablished Association, had been discussing the question of union repre-
sentation. Williams stated that he and the men were in favor of having Atnip form a new
independent labor organization. Nicholson replied, according to Williams, that this was
"fine and dandy." Nicholson's views that he preferred an independent labor organization to
an affiliated one had previously been stated to Williams on a number of occasions. Williams
assisted Atnip in the preliminary paperwork. He met once with Atnip and turned over to him
the various papers in his possession which related to the Bonus Committee and the disestab-
lished Association. The new Independent developed very rapidly and, on or about July 7, 1952,
a representation petition was filed, in Case No. 21-RC-2637, by "Independent Workers of Kit
Manufacturing Company."
On July 28, Williams sent Nicholson a letter, set forth hereinafter in more detail, wherein
he disassociated himself from the new Independent. On August 6, he contacted representatives
of the A. F. of L., met with them on August 7, and on August 8, together with Reynold Van
Dyke, whose discharge is also discussed hereinafter, actively campaigned for the A. F. of L
in the plant. Williams was discharged that afternoon, at the close of the business day Van
Dyke was discharged on August 18
The representation election, pursuant to the petition filed by the new Independent, was held
on October 24, 1952, with the CIO and the A. F. of L. intervening and appearing on the ballot;
the election was won by the A. F. of L. it appears that the CIO, at the hearing prior to the
election, challenged the status of the second Independent, claiming that it was a successor
to the recently disestablished Association and Bonus Committee The Board, in its direction
of election, did not expressly pass on this point and it is not clear what disposition, if any,
was made by the Board of the claim. Although the evidence in the present proceeding would
'Nicholson claimed that he had not so instructed Williams. Not only did Williams impress
the undersigned as an honest witness, but the record further demonstrates that at no time
did Nicholson or any representative of management instruct Williams to cease this activity
as a representative of the men; on the contrary. Williams regularly met with Nicholson
concerning conditions of employment.
KIT MANUFACTURING COMPANY 603
appear to show a link between these organizations, the complaint herein does not attack the
status of the second Independent. The General Counsel apparently takes the position that the
Board has sub silentio recognized the legitimacy of the second Independent by its failure to
pass upon the CIO contention in the election proceeding There is, however, no evidence that
the second independent has remained active subsequent to its defeat by the A. F. of L. in
the election.
B. The discharges
1. Robert Williams
Williams, who entered Respondent's employ in January of 1950 as an electrician, was
conceded by Respondent to be an excellent workman whose work was satisfactory in every
respect . He was transferred to the sheet metal shop, as a sheet metal worker , on or about
June 1, 1952, and worked in that capacity until his abrupt discharge on August 8 Respondent
contends that it discharged Williams (1) because he was unstable and (2) because his in-
dividual representation of the employees, after disestablishment of the first Independent,
placed Respondent in jeopardy with the Board and in the position of violating its agreement
to disestablish that organization.
Testimony was presented by Nicholson which portrays Williams as an ardent crusader in
behalf of improved working conditions. The record supports Nicholson in this respect and
also shows that his, Nicholson's, promises to improve conditions of employment were of
long standing and unfulfilled. Moreover, the record shows that Nicholson had selected
Williams, because of his leadership qualities, to represent the men. And although Williams
was aggressive in his contacts with management, it does not follow that this made him an
unstable employee This is particularly so because Williams was not warned or reprimanded
by management concerning his deportment.
Respondent contended that Williams demonstrated his lack of stability throughout his entire
tenure with the concern. And the record does show that Williams did have some difficulties
with his foreman prior to June of 1952 However, this claim is effectively erased by the fact
that Williams was transferred to another department, the sheet metal shop, in June of 1952,
and that his relations with his new foreman were pleasant and unmarked by any difficulty.
Moreover, shortly thereafter, Nicholson informed Williams that he was potential leadman
and foreman material , hardly a statement one would make to an unstable employee whose
services were not desired One must then search for the true motive behind the termination
of Williams and this squarely presents for consideration the events which took place between
June and August of 1952.
The record demonstrates that Williams was vigilant in his presentation of these grievances
concerning conditions of employment, and that he regarded Nicholson's promises as solemn
commitments to make the necessary improvements.2 Williams ultimately became displeased
with the negative state of affairs during June of 1952 and, on or about June 19, again asked
Nicholson to fulfill his promises, stating that he was of the belief that Nicholson had let him
down. Williams added that under the circumstances he wished to give up his representation
of the men; Nicholson replied that Williams was taking the matter too seriously. Williams,
who in his spare time was studying for the ministry under the guidance of a local pastor,
said that his handling of these grievances was interfering with his studies . Nicholson in-
formed Williams that a leadman was needed on the floor section, that Williams would be in
line for the job, and that he could progress from this position to one as foreman. Nicholson
assured Williams that if he became unable to continue with his studies for the ministry, he
nevertheless had a promising future with Respondent as leadman and ultimately as foreman.
He also offered to, and on the same day did, write to Williams' pastor as follows: 8
=According to Williams, Plant Superintendent Kruse furnished him with a daily record of
earnings under the bonus plan. Williams kept these records in his home for the men to
check. Thus, even assuming that Nicholson had not instructed or authorized Williams to
individually represent the men during this period, this establishes the fact that Williams'
activities were conducted with the tacit approval of management.
SWilliams , in his credited testimony , referred to this conversation as taking place on
June 19 or 20; he later referred to a talk on June 20 or 22 . It appears that these references
were to a single conversation which took place on or about June 19, the date that Nicholson
wrote to the pastor.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Several times in recent months Bob Williams has discussed with me the hardships he
is encountering in keeping abreast of his divinity studies, while at the same time taking
an active part in inter -plant activities I feel that an explanation on my part might give
you a better insight into his activities
For the past several years we have been working on a plan, or series of plans, to im-
prove plant morale About a year ago Bob began to take an active interest in this work.
It has given him a broader appreciation of industry problems and a much better under-
standing of the time, patience and work required to change the viewpoints and concepts
of large groups, and even of individuals
The qualities of leadership and human understanding that Bob is acquiring in this
work will certainly be reflected in a better understanding of the congregational problems
he will inevitably be faced with in the years to come
We certainly hope that nothing he is undertaking here will interfere with his desire to
join the ministry.
Matters drifted along for some weeks Williams was consistently contacted by employees
with their complaints concerning working conditions and he equally consistently brought them
to the attention of management And although Nicholson testified that he stood as a buffer
between Williams and his supervisory staff, in that the latter group resented and complained
of Williams' forthright handling of these grievances, Nicholson did not, subsequent to Williams'
transfer, instruct him to cease these activities This is understandable, for the record
demonstrates that Williams was the means by which Nicholson hoped to procure the return
of another independent Union to the plant
This is shown by the episode of the $ 450 check described hereinafter Late in May,
Williams concluded that Nicholson intended to evade his promises to better working conditions.
He decided that under the circumstances he would bill Nicholson for his services to the first
Independent, inasmuch as Nicholson, upon the formation of that organization, had promised to
pay all of its expenses He met with Nicholson on May 29 and on the same day Nicholson
directed that a check in this amount be sent to Williams Nicholson was surprised by the
request for the check and so stated in a letter to Williams who proceeded to return the
check. Some days later Nicholson sent the check to Williams who cashed it It is deemed
immaterial herein that this sum included an item of $ 250 for legal expenses which Nicholson
claimed had not actually been paid by Williams What is significant, however, is the fact that
Williams sought this payment on May 29 and that Nicholson, even though he testified that
he considered this to be blackmail, not only paid the sum but, in addition, in the latter part
of June, wrote the above-quoted letter to Williams' pastor on June 19, informed Williams
that he was potential leadman and foreman material with Respondent, and on or about June
27, transferred Williams to another department.
I believe that the true reason why Nicholson paid the claim, and this also sheds light on
his motivation in effecting Williams' discharge, appears in his testimony that he paid the
money because he thought there might be a valid justification for the request and because
"I thought there might be a possibility that the funds might be channeled into Independent
No 2 " He also testified that he thought this might be a convenient method to channel these
funds into the Independent without undue publicity.
The grievances with respect to working conditions remained unsatisfied and, on July 28,
Williams decided to withdraw his support from the new Independent He sent a letter to
Nicholson which the latter, due to his absence on a trip, did not receive until 3 or 4 days
later, apparently on or about August 1 Williams stated inter alia that Nicholson's promises
to better working conditions had not been carried out and that he, Williams, was therefore
informing Nicholson on this occasion that "I will no longer give my support to any In-
dependent Union within the plant."
Williams also decided at this time that Nicholson's promises would not be fulfilled without
the intervention of outside union representation On August 6 he telephoned Nick Cordil,
business agent of the Los Angeles District Council of Carpenters, A. F. of L ; informed him
that a new independent had recently been formed in the plant , and stated that Nicholson had
failed to honor his promises to the men who, as a result, desired A. F. of L representation
On the following day, Williams, Reynold Van Dyke, and another employee met Cordil and an
A. F. of L. official and discussed methods of organizing the plant It was agreed that Cordil
would meet the three employees near the plant on the following day and would furnish them
with petitions to circulate among the men Cordil duly appeared at noon on August 8 near
the plant gate and furnished Williams, Van Dyke, and a third employee, Carlson, with A. F.
of L petitions to be circulated among the men
KIT MANUFACTURING COMPANY 605
This hour was during the lunch period and these employees immediately proceeded to
circulate the petitions; although the petitions were not introduced in evidence , it appears that
the signers were asked to subscribe thereto and thereby indicate their desire for A. F. of L.
representation . Williams turned his petition over to another employee and proceeded to ac-
company Van Dyke as the latter contacted the employees during the lunch period and during
the afternoon rest period . As Van Dyke approached the men, he and Williams urged them to
sign. Williams also circulated through the plant telling his numerous friends that he favored
the A. F. of L. According to Williams , Leadman Abbott walked by at approximately 2 p.m.,
as Williams informed a group of employees that he was completely behind the petition and
intended to sign it.
Just before quitting time that day, Williams was summoned to Nicholson 's office and, ac-
cording to Williams , Nicholson informed him that he had become an undesirable employee in
view of his statements in the July 28 letter ; that Williams was a self-appointed union; and that
Williams was violating an agreement with the Board , after disestablishment of the first
independent , not to participate in union activities . According to Nicholson, he informed
Williams on this occasion that he was an undesirable employee and that he was therefore dis-
charged.
Conclusions
To some extent, there is surface merit to Respondent 's position with respect to Williams.
He was aggressive and persistent in his prosecution of plant grievances , and I believe that he
was a source of irritation to Nicholson and his supervisory staff, this resulting in Respond-
ent's claim that he was an unstable employee . And it may well be that Nicholson so regarded
Williams . But to embrace this view , and this applies equally to Nicholson himself, is to
ignore the forest for one of the trees.
The first Independent was Nicholson 's creature and Williams , whose leadership qualities
had favorably impressed Nicholson , was chosen by the latter to head it. After its disestab-
lishment , Nicholson encouraged Williams to continue representing the men as an individual
in the hope , it is found , that Williams might be able to reestablish an independent labor organi-
zation of the type Nicholson so strongly favored . Nicholson 's testimony , set forth above,
concerning his reason for making the $450 payment to Williams in June demonstrates this
fact. It supplies the reason why he allegedly stood as a buffer between Williams and the
supervisory staff. The fact is that Nicholson had utilized Williams before and hoped to utilize
him again . And even aside from union considerations , as shown above , Nicholson considered
Williams to be potential leadman and foreman material . This is corroborated by the text
of the letter sent to Williams' pastor on June 19 , less than 2 months before his discharge.
Things drifted along and nothing disturbed this state of affairs until Williams took certain
action which Nicholson found highly disturbing . On or about August 1, Nicholson learned that
Williams was abandoning his support of the newly formed Independent which , during the
previous month, had filed a petition to be certified as the representative of Respondent's
employees . Moreover , on August 6 Williams tooksteps to interest the A. F. of L . in organizing
the plant and on August 8 actively campaigned for that organization in the plant.
Totally aside from the fact that this activity took place in the presence of leadmen, the
record demonstrates that Nicholson was fully aware of Williams' activities in this respect.
For, according to the credited testimony of Hobert Atnip, 4 he held a conversation with
Nicholson on August 7, the day before Williams' discharge . Atnip, who was president of the
second Independent , discussed with Nicholson his own impending resignation . Thereafter,
according to Atnip , "we discussed the fact that Williams , Van Dyke and another employee
were trying to bring in the A. F. of L. Nicholson said that Williams was just getting in his
hair too much with this stuff and that he'd just have to get rid of him ... that Van Dyke
and the other fellow wouldn 't have known how to go about bringing in the A . F. of L. and
that Williams was without question the brains behind them . He referred to the letter Williams
had written a short time before saying that he was not going to support an Independent
anymore."
In sum, I believe and find that but for his expression of disinterest in the new Independent
and his espousal of the A. F. of L., Williams would not have been discharged on August 8
by Respondent . Nicholson was willing to go along with Williams , just so long as it suited his
own purposes . Even assuming that Williams was overly aggressive and was the cause of some
4The parties stipulated that Atnip would testify in conformity with his sworn affidavit
which was received in evidence.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intraplant difficulty, the fact is that Nicholson did not discharge him for this and in fact
was unwilling to do so. Not until Williams disassociated himself from certain union ac-
tivities favored by Nicholson and then embraced other union activities did Nicholson act I
find therefore that Respondent, in discharging Williams, was discriminatorily motivated by
Williams' repudiation of the second Independent and his close association with the A. F. of L.
It follows therefore that Williams ' discharge was violative of the Act in several respects.
Firstly, his discharge for engaging in A. F. of L. activities was reasonably calculated to
discourage membership in that organization. Secondly, his discharge for exercising the right
to refrain from engaging in activities in support of the second Independent was violative of
his rights under Section 7. Thirdly, even in the face of Respondent's contention that it dis-
charged Williams because his representative activities placed it in jeopardy before the Board,
in view of the prior disestablishment of the first independent and Bonus Committee, the dis-
charge was violative of his right to engage in concerted activities, particularly so in view of
Respondent's contention that it had disassociated itself from and had not supported the second
Independent. Moreover, this contention cannot be credited mview of Williams' renunciation of
the new Independent on July 28 . Fourthly, assuming the second Independent to have been a
successor to the first, the fact is that Nicholson encouraged Williams' representative activi-
ties in support thereof and, in fact , gave Williams the $450 check in the hope that it would
find its way to the treasury of that organization. Respondent cannot contend, therefore, that it
discharged Williams for conduct that Nicholson himself encouraged , without giving rise
to an inference that its action was unlawfully motivated.
I find that by the foregoing conduct Respondent has discriminated with respect to the hire
and tenure of employment of Williams and has also interfered with, restrained . and coerced
its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby violat-
ing Section 8 (a) (1) and (3) thereof. Nelson Industries , 102 NLRB 780. and Fuchs Baking Co.,
102 NLRB 1350.
It is further found that by payment of the sum of $450 to Williams, either in the belief that
it would be transferred to the second Independent or as payment to Williams for services to
the first Independent, Respondent has unlawfully contributed financial support to a labor
organization within the meaning of Section 8 (a) (2) of the Act and has further interfered with,
restrained . and coerced its employees in the exercise of the rights , guaranteed by Section 7
of the Act, thereby violating Section 8 (a) (1) thereof.
2. Reynold Van Dyke
Reynold Van Dyke entered Respondent 's employ in July of 1947 and, at the time of his dis-
charge on August 20, 1952, s was ninth in seniority among Respondent 's 150 to 170 employees.
He was employed in the prefabrication of aluminum panels , had been complimented on a
number of occasions concerning his work, and Respondent raises no contention herein with
respect to his ability . Its defense is predicated solely on the ground that Van Dyke was dis-
charged for repeated tardiness.
As set forth above, Van Dyke and Robert Williams played leading roles in the introduction
of the A. F. of L. to Respondent 's plant On August 7, they met with A. F. of L. representa-
tives who, on August 8, furnished them with petitions for circulation among the employees.
Van Dyke and Williams worked as a team in this respect on August 8. While Van Dyke
circulated the petition , Williams accompanied him and solicited the signatures of the em-
ployees, with Van Dyke also urging the employees to sign. This was done openly and in the
presence of Foreman Abbott and t e man Payne; in fact, Van Dyke unsuccessfully solicited
the signature of the latter . At the conclusion of that day. Williams, as heretofore found, was
discriminatorily discharged . It has also been found that President Nicholson, on August 7,
was aware of the fact that Van Dyke was one of several employees, including Williams,
who were trying to introduce the A. F. of L . to Respondent's plant.
On Monday, August 11, Van Dyke reported for work several hours late. He explained to
Foreman Abbott that his wife had been ill that morning and that he had been obliged to re-
main at home and care for his two young children. Abbott stated , according to Van Dyke.
that Van Dyke had a poor attendance and tardiness record, that he wished him to be more
prompt in the future , and that Van Dyke should try not to be absent On the evening of
August 11 , Van Dyke met with A. F. of L. Business Agent Cordil and several others at the
5 Van Dyke testified that he was discharged on August 18. Respondent ' s records indicate,
and I find , that he worked on August 18 and 1'9 , the first 2 days of the workweek , and was
discharged on August 20.
KIT MANUFACTURING COMPANY 607
home of Williams , who had been discharged on August 8. By coincidence , Leadman Payne
resides two houses away from that of Williams ; according to Van Dyke, he observed Foreman
Abbott and Payne standing beside an automobile parked in the street . He credibly testified
that he observed Abbott watching him and the others as they entered Williams' home.
For the remainder of the workweek , Van Dyke continued to solicit signatures for this A. F.
of L. petition and to distribute union cards . This was also true of the first 2 days of the
following workweek , Monday and Tuesday , August 18 and 19. His efforts were eminently
successful and, at the time of his discharge on August 20, Van Dyke had procured 57 of the
approximately 75 names on the petition; he had also, in the interim, distributed union-authori-
zation cards for signature. Van Dyke credibly testified that on one occasion he solicited the
signatures of a group of 20 to 30 employees; that President Nicholson happened to be talking
to various supervisory employees, including Foreman Abbott, at the time; and that Nicholson
observed this transaction, the nature of which was made clear by an employee who loudly
announced that he was signing, as he did so.
On the morning of August 20, the incident leading to the discharge of Van Dyke took place.
As he was about to depart for work in the morning, he discovered that a personal business
matter required his attention in Los Angeles. Van Dyke did not have a telephone in his home
and went to a friend's house. He telephoned Foreman Abbott and informed him of his neces-
sary errand. This took place at 7:45 a.m., 15 minutes after his customary reporting time of
7:30. Abbott replied, according to Van Dyke, that Van Dyke's reason for his absence did not
affect the situation. He stated that he, Abbott, "had already turned your time in" and "We all
have our problems. That is the way it is." According to President Nicholson, he did not make
the decision to discharge Van Dyke and it is presumably Respondent's position that the de-
cision was made by Abbott who did not testify herein.
Conclusions
Respondent's reason for discharging Van Dyke does not stand up under close scrutiny. It
did have at least two plant rules concerning tardiness and absence and, under the Act. Re-
spondent was perfectly free to discharge Van Dyke or any other employee for violating these
rules, if, in fact, this was the true reason for its action. The record discloses, however, that
Van Dyke had violated neither of these plant rules.
The expired contract with the CIO provided that any employee absent from work for more
than 3 successive days without proper notice to Respondent was subject to discharge. Ac-
cording to Nicholson, he had continued to enforce this policy subsequent to the expiration of
the contract in 1951. However, not only did Van Dyke telephone in on the morning of August
20 but, in addition , he had not violated any rule of absence or tardiness for 3 successive days.
In December of 1951. Respondent had also promulgated a rule that any employee who was
late for work during 3 successive weeks would be subject to termination . However, the record
shows that Van Dyke did not fall within the purview of this rule . In fact, according to Re-
spondent's records , Van Dyke was on a paid vacation for the week of August 3. He worked a
full week without absence or tardiness during the week of August 10; worked 36 hours during
the week of August 17 , having been absent on the morning of August 11 as described above;
and was discharged on the morning of August 20 after working on August 18 and 19. Thus
Van Dyke, at the time of his discharge, had been late only for the second time in successive
weeks and did not come within the rule. Moreover , the parties stipulated that Plant Superin-
tendent Kruse would testify that this rule with respect to termination after absence or tardi-
ness in 3 successive weeks was never enforced without giving the employee prior warning.
Presumably, this warning would not be handed out until after the employee had vic"ated the
three-time rule.
Paradoxically, Van Dyke worked from 39.6 to 39.9 hours each week in the weeks between
June 29 and July 27; the records introduced in evidence do not disclose whether this total
reflects 1 tardiness in each week or whether these figures include the loss of several minutes
daily due to late or premature punching of the time clock. Nevertheless, and despite the fore-
going, Van Dyke did not receive a warning. On the,contrary, he was given the week of August
3 as his paid vacation, after which, during the week of August 10, he returned to work and
worked a full week.
Respondent introduced evidence of three other employees who, like Van Dyke, were allegedly
discharged for "irregular attendance" at or about the same time. These were Munkers,
Gilley, and Wheeldon. discharged on August 13, 15, and 19, respectively. The last two were,
however, new employees who worked for very brief periods of time, during which their
attendance records were consistently poor. The third, Munkers , had seniority dating back to
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 1949 but was discharged on August 13 after being absent or tardy for the 3 preceding
weeks. His discharge therefore falls within the application of Respondent 's rule.
Not long after his discharge, Van Dyke telephoned President Nicholson and sought re-
instatement. Nicholson replied that the decision was up to Foreman Abbott and Superintendent
Kruse and that Van Dyke should call him again. When Van Dyke did so, Nicholson informed
him that he had arranged an interview for Van Dyke at another trailer manufacturing concern
in the area. While this effort by Nicholson at first blush appears to be commendable, it indi-
cates that Nicholson did not consider Van Dyke unsuited for further employment in the industry.
Moreover, this effort on Nicholson's part takes on added meaning when notice is taken of a
similar prior effort by him to eliminate Van Dyke from the plant. According to the testimony
of the latter, he informed Nicholson on one occasion, during the existence of the unlawful
Bonus Committee, that he considered this to be a company-dominated union controlled by
Respondent and that he intended to withdraw from it. Just as on the later occasion described
above, Nicholson offered to use his influence to find Van Dyke another position. Accordingly,
I am of the belief, under these circumstances, that this technique of finding a position in
another plant for an employee was one calculated to eliminate from the plant those who opposed
Respondent's concept of an ideal labor organization or who took steps to introduce a labor
organization other than one of the type he favored.
Under all the circumstances, I find the reason advanced by Respondent for the termination
of Van Dyke to be unsupported by the weight of the evidence. It is found that this was a pretext
and not the true reason for the discharge. When note is taken of Van Dyke's outstanding
seniority in a plant which was marked by an admittedly high and costly turnover of personnel;
his excellent work record; his close association in A. F. of L. activities with Williams, whose
discharge some days earlier has been found to be discriminatory; Respondent's knowledge of
the foregoing; and Van Dyke's continuance of his A. F. of L. activities after the discharge of
Williams, the evidence preponderates in favor of a finding that Respondent was unlawfully
motivated in effecting his discharge. I find that Respondent discharged Van Dyke because of
his activities in support of the A. F. of L. and in derogation of the second Independent, thereby
discriminating with respect to the hire and tenure of his employment and interfering with,
restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7
of the Act.
3. Paul Killian
Paul Killian, an employee in the sheet metal shop, had been in Respondent's employ for
slightly over 2 years at the time of his discharge on October 7, 1952. His termination notice
in Respondent's business records, dated October 7, states that "This employee is constantly
taking time off from work without good reason. Today he punched his card and went home
without permission from Foreman. Do not rehire." The notice is signed by Plant Superintend-
ent Kruse who did not testify herein. Killian's timecard shows that he punched out at 10.27 a.m.
on October 7 and left for the day . According to Killian, Kruse informed him, apparently at the
time of his termination or shortly thereafter , that he had been absent too frequently and that
"He didn 't like my attitude , the way I answered him when he asked why I was off. I told him
at the time, I was off for business purposes and he didn 't like the way I answered him."
The General Counsel, contending that Killian was discriminatorily discharged . relies on the
following evidence . Killian was sergeant at arms at the second Independent, but on August 21
signed a petition to the Board asking that the petition of that organization for an election be
dismissed; it appears that the officers of that organization later procured the reinstatement
of the petition for, as found, the election was duly held on October 24. Killian did sign the
A. F. of L. petition circulated in the plant during August but was otherwise not active in its
behalf. He also testified that in a conversation with Leadman Art Millette, held 3 or 4 days
after Van Dyke's discharge on August 18, he, Killian, criticized the termination of Van Dyke
because of the latter's seniority of over 5 years. According to Killian, Millette replied, "If
you keep your nose clean and out of business that doesn't concern you, you won't be termi-
nated." They then argued the merits of union representation with Killian advocating it and
Miilette, who did not testify herein, voicing criticism of labor organizations and their pur-
poses.6
6 The record is not entirely clear as to the relationship between Millette and Van Dyke,
whose discharge has been discussed above Accordingly, in treating with Van Dyke's dis-
charge, I have deemed it unnecessary to rely on the foregoing conversation.
KIT MANUFACTURING COMPANY 609
The evidence, considered in the posture most favorable to the General Counsel, does dis-
close some suspicious circumstances in the discharge of Killian. However, in view of his
discharge for walking off the job withoutpermission;his attitude in discussing the matter with
Superintendent Kruse; and the fact that his discharge took place in October , 2 months after
the termination of Williams and Van Dyke, I conclude, on a preponderance of the evidence,
that the record does not support a finding that Respondent was discriminatorily motivated
in the termination of Killian. Accordingly, I will recommend that his case be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in connection with
its operations described in section I, above, have a close, intimate, and substantial relation
to trade, traffic , and commerce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I will recom-
mend that it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that Respondent has contributed support to a labor organization. Although
said organization appears to be dormant at the present time, nevertheless , it will be rec-
ommended that Respondent cease and desist from such conduct.
Having found that Respondent has discriminated with respect to the hire and tenure of em-
ployment of Robert Williams and Reynold Van Dyke, it will be recommended that Respondent
offer them immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and privileges. See The Chase
National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. It will
further be recommended that Respondent make them whole for any loss of pay suffered by
reason of the discrimination against them . Said loss of pay , based upon earnings which each
would normally have earned from the date of the discrimination against them to the date of the
offer of reinstatement , less netearnings , shallbe computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289. N.L.R.B. v. Seven-Up
Bottling Co., 73 S. Ct. 287.
Because of Respondent's demonstration of its willingness to resort to unlawful methods to
counteract an attempt by employees to achieve self-organization through a labor organization
of their own choosing, the commission of other unfair labor practices may be anticipated. It
will therefore be recommended that Respondent cease and desist from in any manner infring-
ing upon the rights guaranteed its employees by Section 7 of the Act.
It will further be recommended that the allegations of the complaint with respect to the dis-
charge of Paul Killian be dismissed.
Upon the basis of the foregoing findings of fact and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Woodworkers Local Union No. 530, United Brotherhood of Carpenters & Joiners of
America, A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating with respect to the hire and tenure of employment of Robert Williams
and Reynold Van Dyke, thereby discouraging membership in a labor organization, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
3. By contributing support to a labor organization, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act.
4. By interfering with , restraining , and coercing its employees in the exercise of the rights
guaranteed by Section 7 of the Act , Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
6. Respondent has not by the discharge of Paul Killian engaged in unfair labor practices.
[ Recommendations omitted from publication.]