Kit Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 27, 1960

127 N.L.R.B. 426 (N.L.R.B. 1960)

426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. International Molders & Foundry Workers Union of North America, AFL-CIO,
Local No. 9, and Lodge 1591, International Association of Machinists , AFL-CIO,
are labor organizations within the meaning of Section 2(5) of the Act.
3. The aforesaid labor organizations were during the Respondent 's payroll period
ending June 27, 1959, and have at all times thereafter been the jointly certified
exclusive bargaining representative of the Respondent 's employees for the purposes
of collective bargaining within the meaning of Section 9(a) of the Act in the
following appropriate unit:
All production and maintenance employees at the Respondent's Fort Worth, Texas,
plant, exclusive of office clerical employees, over-the-road truckdrivers, guards,
professional employees, the shipping clerk, the patternmaker , and supervisory
employees as defined in the Act.
4 By failing and refusing at all times since the unilateral grant of a pay increase
to nonstriking employees during its June 27, 1959, payroll period to bargain col-
lectively with the aforesaid labor organization as the exclusive representative of
the employees in the foregoing appropriate unit the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
5. By directly soliciting the abandonment of their strike by its employees, by
inducing them to abandon their strike by promises of benefit , and by requesting an
employee to solicit the abandonment of the strike by his fellow employees the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)( I) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Kit Manufacturing Company and United Steelworkers of Amer-
ica, AFL-CIO and Blue Mountain District Council , Lumber &
Sawmill Workers, AFL-CIO. Cases Nos. 19-CA-17493, 19-CA-
1766, and 19-CA-1815. April 27, 1960
DECISION AND ORDER
On January 6, 1960, Trial Examiner Martin S. 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, and recommending that it 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 other unfair labor
practices alleged in the complaint. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman Leedom and Members
Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
127 NLRB No. 62.
KIT MANUFACTURING COMPANY 427
proceeding, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Upon the entire record in this proceeding, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, Kit Manu-
facturing Company, Caldwell, Idaho, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activity on behalf of, United
Steelworkers of America, AFL-CIO, or Blue Mountain District
Council, Lumber & Sawmill Workers, AFL-CIO, or any other labor
organization of its employees, by discriminating in any manner in
regard to hire, tenure, or any term or condition of employment, except
to the extent permitted under Section 8 (a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
(b) Threatening to shut down its plant in the event of union organi-
zation, threatening employees with reprisals for engaging in union
activities, and promising and instituting benefits for employees in
return for rejecting unionization.
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Steelworkers of America,
AFL-CIO, or Blue Mountain District Council, Lumber & Sawmill
Workers, AFL-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of mutual aid or protec-
tion as guaranteed in Section 7 of the Act, and to refrain from any and
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 as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Elsworth Jordon immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice to
1 The Trial Examiner rejected the Respondent 's contention that Elsworth Jordon, one of
.the alleged discriminatees involved herein, in effect had quit and found that Jordon was
discharged by Ray Skinner , the Respondent ' s general manager. In so finding , the Trial
Examiner relied, in part, on an affidavit made by Skinner and submitted to a Board
investigator . The Respondent excepted to the use of the affidavit on the ground that it
was not part of the record . We find, as did the Trial Examiner , that Jordon did not
quit but was discharged . However, in so finding , we do not rely on the affidavit, but on
evidence in the record credited by the Trial Examiner.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his seniority or other rights and privileges , and make him whole for
any loss of earnings suffered by reason of the discrimination against
him, in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(b) Preserve and, upon request , make available to the Board or its
agents, for examination and copying , all payroll records, social-
security payment records , timecards , personnel records and reports,
and all other records necessary to analyze the amounts of backpay due
and the right of employment under the terms of this Order.
(c) Post at its plant at Caldwell , Idaho, copies of the notice at-
tached hereto marked "Appendix ." 2 Copies of said notice, to be
furnished by the Regional Director for the Nineteenth Region
(Seattle, Washington), shall , after being duly signed by the Re-
spondent 's authorized representative , be posted by the Respondent
immediately upon receipt thereof and be maintained by it for a period
of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted . Reason-
able 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 Nineteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS HEREBY ORDERED that the complaint herein be , and it hereby is,
dismissed , insofar as it alleges any violations of the Act other than
those found herein.
2In 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
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, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in, or activity on behalf
of, United Steelworkers of America, AFL-CIO, or Blue Moun-
tain District Council, Lumber & Sawmill Workers, AFL-CIO,
or any other organization of our employees, by discriminating
in any manner in regard to hire or tenure of employment, or any
term or condition thereof, except to the extent permitted under
Section 8(a) (3) of the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
WE WILL NOT threaten to shut down our plant in the event of
union organization, threaten employees with reprisals for engag-
KIT MANUFACTURING COMPANY 429
ing in union activities, or promise or institute benefits in return
for rejecting unionization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist United Steel-
workers of America, AFL-CIO, or Blue Mountain District
Council, Lumber & Sawmill Workers, AFL-CIO, or any other
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of mutual aid or protection as guaranteed in Section 7
of the Act, and to refrain from any and 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 as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL offer Elsworth Jordon immediate and full reinstate-
ment to his former or a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of pay suffered as a result of our
discrimination against him.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of the above-named Unions, or any
labor organization, except to the extent that this right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
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 against Respondent, Kit Manufacturing Company, was heard at
Caldwell, Idaho, on September 15 and 16, 1959. The issues litigated were whether
commencing January 1, 1959, Respondent engaged in various acts of interference,
restraint, and coercion, and discharged two employees on or about January 29 and
April 2, 1959, respectively, thereby engaging in unfair labor practices within the
meaning of Section 8(a)(1), (3), and (4) of the Act.' Oral argument was waived
at the close of the hearing and briefs have been submitted by the General Counsel
and Respondent.
3 A motion by the General Counsel to dismiss nonlitigated allegations of discrimination
as to three other employees was granted during the hearing.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the entire record in the case, and from my observation of the witnesses, I make
the following:
FINDING OF FACT
1. THE BUSINESS OF RESPONDENT
Kit Manufacturing Company is a California corporation engaged in the manufac-
ture and sale of trailers and mobile homes at plants in Long Beach, California, and
Caldwell, Idaho. The Caldwell, Idaho, plant, with which this proceeding is con-
cerned, entered into production on or about December 1, 1958. From that date to
the date of the amended complaint, August 24, 1959, it has produced trailers and
mobile homes valued in excess of $100,000. Of these, sales and shipments valued
in excess of $65,000 have been made to points outside the State of Idaho. I find
that the operations of Respondent affect commerce.
II. THE LABOR ORGANIZATIONS INVOLVED
United Steelworkers of America, AFL-CIO, and Blue Mountain District Council,
Lumber & Sawmill Workers, AFL-CIO, are labor organizations admitting to mem-
bership the employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
Respondent's Caldwell plant was established in November 1958 and shipments
of products commenced in December. This enterprise quickly drew the attention
of various labor organizations and, on January 19, 1959, United Steelworkers of
America, AFL-CIO, herein called the Union, filed a representation petition in Case
No. 19-RC-2290 (unpublished) covering the approximately 104 employees. Two
other labor organizations, including Blue Mountain District Council, Lumber &
Sawmill Workers, AFL-CIO, herein called Lumber and Sawmill Workers, inter-
vened and a hearing was held on February 17, 1959.
The election was held up because of the charges in the instant proceeding,2 but
it was ultimately held on June 4, 1959, with three labor organizations participating.
The two highest votes were for no union and for Lumber and Sawmill Workers. A
runoff election was conducted on June 24, and a majority of the votes were cast in
favor of no union. Objections to the election were thereafter filed, and it appears
that, subsequent to the close of the instant hearing, the Board has, on October 13,
1959, set aside the runoff election and directed that another election be held.
The alleged acts of interference, restraint, and coercion consist of statements that
employees would be hired only on condition that they refrain from union activities,
statements that employees who signed union authorization cards would not be pro-
moted to supervisory positions if a union were voted in, promises of benefits if the
Union lost a representation election, threats of reprisals for engaging in union
activities and voting in a union, a request that an employee talk against unions, and
promises of benefits in return for a no-union vote, all between January and June 1959.
It is further alleged that Larry O'Brien, Jr., was discharged on or about January
21, 1959, and again discharged on or about January 29, after a purported reinstate-
ment, because of his membership and activity in behalf of the Union, and that
Elsworth Jordon was discharged on or about April 3, 1959, for the same reason and
further because he had given statements to a Board agent in connection with this
and another case. The case is marked by a number of conflicts in testimony.
B. Interference, restraint, and coercion
The alleged discriminatory discharge of Larry O'Brien, Jr., is discussed hereinafter.
The General Counsel contends at this point that O'Brien, at the time of his rehiring
on January 22, 1959, was unlawfully warned that he was being rehired only on con-
dition that he refrain from engaging in any union activities in or near the plant.
According to O'Brien, he encountered General Manager Ray Skinner that evening
in a bar and Skinner offered him and another exemployee jobs "if he would not
engage in union activities in or around the plant," pointing out that O'Brien and
another employee had previously violated company rule 20. This rule forbids
"Distributing written or printed matter of any description on Company premises
unless approved by Management."
2 The original charge in Case No. 19-CA-1742 was filed by the Union on March 9, 1959.
KIT MANUFACTURING COMPANY 431
The testimony of O'Brien discloses, however, that O'Brien and his colleague viewed
this statement by Skinner as being directed to activities during working time. O'Brien,
who admittedly had considered it permissible to distribute union literature during
working time, testified that "We said that we wouldn't do that around the plant or
on Company time." He further testified that Skinner conditioned reinstatement on
their not engaging in union activities "in or around the plant"; the men promptly
responded that there was no restriction upon engaging in union activities "on their
own time" and Skinner did not dispute this.
The testimony of Skinner is that reports had come to him from foremen that
O'Brien had distributed "material in the plant when he should have been working"
and that "he was passing out union cards, I believe, to put it exact in the plant and
on Company time." Skinner elsewere testified that, according to the reports, the
employees would read the cards and that this was a time-consuming matter.
The General Counsel makes no attack upon rule 20 as such and I am convinced,
from the foregoing testimony, that the thrust of Skinner 's statements was directed
to O'Brien carrying on union activities during working time only. O'Brien's testi-
mony reveals that his union activities, primarily card distributon, were sight and
that he did this chiefly during nonworking time. Accordingly, I find that Respondent
in this respect did not engage in conduct violative of the Act. N.L.R.B. v. Peyton
Packing Company, Inc., 142 F. 2d 1009 (C.A. 5), cert. denied 323 U.S. 730; F. C.
Huyck & Sons, 125 NLRB 271; and Walton Manufacturing Company, 124 NLRB
1331.
The next incident involved employee Elsworth Jordon whose discharge is discussed
hereinafter. On or about February 1, 1959, Jordon, who had just resigned his posi-
tion with another employer, attended a meeting of the Union held in a private room
attached to a local bar known as the Stringbusters Lounge. As he left the loom and
entered the public portion of the premises, he encountered Skinner at a table and
joined the group. According to Jordon, Skinner discussed the possibility of employ-
ing him, said that he could do things for employees that a union could not do, and
stated that if he hired Jordon he did not want him to have anything to do with
unions. Jordon replied that this restriction was agreeable with him, but disclosed
that he had "signed a deal," presumably a union card, at his previous employer's
premises.
Skinner testified that he recalled no discussion of unions on this occasion, but
admitted that he might have said he could not afford to pay a union scale. Employee
Billy Williams, a union member, who was placed in the group by Jordon, supported
Skinner's version of the incident. He testified that Skinner said he could top any offer
from Jordon's prior employer, that he could do more for Jordon than a union could
do, and that he, Williams, recalled no discussion of Jordon 's union activities. I
credit Skinner's version of this incident, as supported by that of Williams, a witness
for the General Counsel, and it appears that Jordon may have had in mind a con-
versation the next morning as set forth below.
The following morning Jordon reported to work and I find, as he uncontrovertedly
testified, that he was informed by Skinner that he would be "blackballed" if he had
anything to do with the Union, that he, Skinner, did not want him to attend any
union meetings , and that, although he was not so ordering Jordon, he did not wish
him to attend any union meetings; Skinner did not recall any conversation on this
occasion.
Sometime in March 1959, according to the credited testimony of employees Billy
Williams and Donald Jessen, Skinner summoned the entire finishing crew to his
office. He stated that he could do more for the employees than any union, but if
the Union came in, as Williams testified, he could not afford to pay women the
union scale to perform men's work. He stated that if the Union came in, the plant
would be closed and "nobody would have a job." Jessen attributed similar state-
ments to Skinner to the effect that if the Union came in Respondent would be
unable to keep the plant open "and he would have to close it down and everyone
would lose their jobs."
A number of women on the finishing crew were present on this occasion and
Skinner pointed out that in the advent of union organization with attendant union
wage scales he would be compelled to replace the women with male employees
who could undertake heavier duties. Skinner also pegged this discussion on, a
broader basis, stating that he could not pay union wages and that the plant would
have to be shut down.
Skinner admitted holding meetings of employees in February and March during
which he expressed his views on union organization . He did not deny the fore-
going statements attributed to him by Williams and Jessen , although he admittedly
stated in meetings held during June, discussed below, that in the advent of a union
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract with higher wage scales for women, the latter might be replaced by men
who could perform heavier tasks.
On the night of March 17, 1959, Jessen attended a union meeting at the String-
busters Lounge. On leaving the meeting, he passed through the bar and encountered
Skinner. The latter asked him why he wanted a Union, and, after Jessen replied
that unionization would result in better working conditions, Skinner stated, as
Jessen testified and I so find, "If you'll string along with me, I can do more for you
than any union. I know you're happy making a $1.45 an hour [apparently Jessen's
rate of pay] . . . but if you string along out here with me and help us, we'll help
you . . You won't be making that $1.45, you'll be beating that." 3
As set forth, an election in the representation proceeding was scheduled for June
4, and the General Counsel relies herein on several talks to employees by Skinner
at this time. Colle McKenzie, still in the employ of Respondent, testified, and I find,
that approximately 1 week before the June 4 election, he was 1 of a group of
approximately 12 employees summoned to Skinner's office. Skinner stated that the
newly formed plant did not need a union as it was premature; that Respondent
would rather wait before union activities commenced; that the employees should not
attend union meetings; and that it would be desirable to wait for 1 year to ascertain
how the plant progressed.
Skinner again raised the subject of female employees. He stated to his all male
audience that rather than pay male wages to women he would discharge the female
employees and replace them with men.4 Skinner stated that "before he would pay
Union wages, what the Kit plant has on the coast .. . that he would know who
voted and he would let us go."
Finally, Skinner for the first time raised the topic of a group insurance plan for
employees, stating that Respondent had been trying to install one at the plant, but
"that it would probably be a year but he would work on it and see if he couldn't get
it sooner." This was the first reference to the insurance plan, according to McKenzie,
who had entered the employ of Respondent in February, and there is no evidence
to the contrary.5
A second meeting was held on June 3, under similar circumstances, and was
attended by 9 or 10 employees including Donald McKinney While McKenzie
testified that he attended a second meeting on or about this date which followed the
pattern of the previous one, it is not clear whether he was referring to the same
meeting described by McKinney, as set forth below.
According to McKinney, and I so find, after discussing union promises of im-
proved working conditions and stating that Respondent would not be dictated to,
Skinner announced that the plant was at the break-even point. Although praising
his crew, he stated that Respondent "would not tolerate a Union, would dismiss
the entire crew if they went Union and start with a new crew." He also stated that,
"If you vote Union, you can be dismissed from the company for voting Union'
He brought up the insurance plan again, acknowledging that there had been discus-
sion on the topic, but stated that Respondent "couldn't afford to pay for the plan
in less than a year."
On the morning of the runoff election, June 24, as McKenzie testified, and I so
find, approximately 15 employees were summoned to a meeting in Skinner's office.
Skinner immediately brought up the insurance plan, explaining that Respondent
was now in a position to install a group insurance plan. He extolled the advantages
of such a plan and distributed cards on which the men were directed to list their
names, addresses, and dependents. He turned the subject to the election and stated
that they "should vote for the plant and not for the Union."
Skinner stated that it was urgent to have the cards signed and returned to the
West Coast within a day or two in order to meet a deadline for putting the plan
into effect. In his testimony, Skinner admitted that the insurance plan was an-
' Skinner did not recall the occasion but did not deny that such a conversation took
place. Jessen further testified that Skinner made a reference to having a list of names
of those employees who had signed cards However, the complaint does not advert to
the latter statement , and no finding is made thereon.
4 The record does not disclose which positions in the plant were filled by women.
5 Skinner admitted that he explained his views on unions at this and other meetings
discussed below during this period and that he mentioned the possibility of the plant
closing down if the Union came in, as well as the replacement of women by men. He
denied stating that an insurance plan could not be installed for about a year, but did
admit saying, "It could be possible that this plant would have to operate for one year
before we could get an underwriting company to take insurance on it." As appears below,
there was a dramatic change of circumstances on June 24 , the day of the runoff election.
KIT MANUFACTURING COMPANY 433
nounced on this occasion immediately prior to the election. He claimed that Re-
spondent had been working on the plan since the start of the plant at Caldwell the
previous November; that he had been advised on June 23 by the company secretary
at the California plant that it was necessary to have the cards returned to California
by the following Monday, presumably June 29; and that this was the reason for his
haste. I find, however, that as recently as June 3, 3 weeks earlier, Respondent had
put its employees on notice that the insurance plan would not be installed for
approximately 1 year.
Conclusions
I find that Respondent has unlawfully interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed by Section 7 within the meaning
of Section 8(a)(1) of the Act by the following conduct:
(1) The statement by Skinner to employee Jordon, on reporting for work on or
about February 2, that he would be "blackballed" if he had anything to do with the
Union and that he did not want him to attend union meetings, clearly a threat of
economic reprisal for so doing.
(2) The statement by Skinner to the finishing crew in March that he could not
afford to pay women the union scale and that if the Union came into the plant,
the plant would be closed and everyone would be out of a job. He also stated
that he could not pay union wages and that unionization would result in a plant shut-
down. These statements were open threats of reprisals to female employees as
well as the entire complement for engaging in union activities.
(3) On March 17, Skinner told employee Jessen that he could do more for him
than any union and that if he strung along with him, Jessen would be receiving more
than his existing rate of pay. This was manifestly a promise of a benefit for reject-
ing the Union or for not supporting it.
(4) At a meeting approximately 1 week prior to June 4, 1959, Skinner announced
that female employees could be discharged and replaced by men if all wages were
raised to the scale for men; the context was one wherein the employees were being
urged, to reject unionization. As such therefore, it was a threat of reprisal for
engaging in union activities.
(5) In the same talk, Skinner stated that he would ascertain who had voted for
the Union and would discharge them before he paid union wages, clearly a threat
of economic reprisal.
(6) At the June 3, 1959, meeting, Skinner announced that he would not tolerate
a union and that he would discharge the crew and replace them with new employees
if they voted in favor of a union; the threat of economic reprisal is manifest
(7) On June 24, immediately prior to the runoff election, Skinner urged the
employees to vote against unionization in the election and at the same time
announced that a group insurance plan was being installed. While Respondent
may have been working on an insurance plan since November 1958, as Skinner
claimed, by contrast, only several weeks before, Skinner had more than once
pointed out to employees that the introduction of such a plan was at least 1 year
distant. It is clear that the plan was pushed through rapidly and the only evidence
by Respondent of its introduction is the testimony of Skinner who allegedly knew
only what he had been told by the management of the California plant.
A preponderance of the evidence warrants the conclusion that Respondent
precipitately announced the introduction of the insurance plan on the day of and
preceding the June 24 election for the purpose of influencing the votes of employ-
ees in the election; indeed, as noted, part of his talk was devoted to precisely that
point, viz, a plea for a no-union vote. While time may conceivably have been of
the essence, assuming Respondent's bona fides in installing the plan, at the very
least it would seen and I believe that announcement of the plan could have been
delayed until the close of the polls on election day with no resultant hampering
of Respondent's timetable of operations I am convinced and find that announce-
ment of the plan was timed so as to offer employees an economic benefit in return
for rejecting a labor organization in the election later that day.
C. The discharge of Larry O'Brien, Jr.
O'Brien entered the employ of Respondent in November 1958 and was asp;-ned
to the toolroom. He testified that soon thereafter he became active in the Union
and distributed union cards in the plant, primarily on his own time. Plant
Manager Skinner admittedly knew that O'Brien and another employee were dis-
tributing cards for the Union in the plant.' There is no evidence of any other
union activities on his part prior to his discharge.
560940-61-vol. 127-29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 14, 1959, O'Brien was assigned to the operation of a forklift truck.
Skinner uncontrovertedly testified that he contacted O'Brien during the day and
cautioned him against operating the vehicle like a "hotrod." Within 5 minutes,
O'Brien collided with a door causing $200 or $300 damage thereto; he was discharged
by Foreman Lang that evening at Skinner's request.
O'Brien conceded that the collision took place but claimed that Foreman Lang
had instructed him earlier that day to speed up his operation of the forklift truck and
then, after the collision, criticized him for negligent operation of the vehicle. He
claimed that Lang, who did not testify herein, told him upon his discharge that his
work had been failing for several days and that "it wasn't entirely the door" incident
that caused his discharge O'Brien allegedly asked Lang "if it had anything to do
with the Union, and I think he said something like no or partly or something.
I don't remember now . . O'Brien had previously operated the forklift truck
for 2 or 3 hours during a 2- or 3-day period.
I see little support for the position of the General Counsel in the foregoing.
Indeed, the General Counsel concedes that there is some substance to Respondent's
contention that O'Brien was discharged for cause, but stresses other factors. And
while Skinner did assign other reasons, including the distribution of union literature
during working time, as heretofore set forth, Skinner did claim that the main reason
was the forklift truck incident. The preponderance of the evidence is, and I so find,
that O'Brien was discharged on January 14 because of the forklift incident and,
but for the incident, would not have been discharged on that occasion. Accord
ingly, the record will not support a finding that he was discharged on January 14
because of his union activities.
O'Brien was reinstated on January 26 and again terminated on January 29, under
circumstances described below, which the General Counsel contends warrant a find-
ing of discrimination on the later date. Soon after O'Brien's first discharge, the
Union concluded that he and another employee, Norris, whose case was not liti-
gated and was dismissed herein, as set forth above, had been discharged because
of their union activities. On the morning of January 22, according to the testimony
of International Representative Austin Smith of the Union, circulars which were
intended for distribution among the employees of Respondent were prepared
Therein, the employees were urged to organize for better conditions and to protect
themselves against discrimination such as that allegedly practiced against O'Brien
and Norris. The circular also stated that unfair labor practices charges were being
filed in the cases of O'Brien and Norris.6 The employees were invited to attend a
meeting that evening, Thursday, January 22, in the banquet room of a hotel in
Caldwell.
There is a conflict, one of a number, in the case between Skinner and Smith as to
whether they lunched that day or the next at which time they discussed the cases of
O'Brien and Norris Smith, a meticulous witness, testified that he lunched with
Skinner on Thursday and requested that the two men be reinstated Smith deemed
Skinner's response to be equivocal, promptly telephoned his office, and ordered that
the circulars be distributed at the plant that day. They were distributed that after-
noon to the employees as they left at the close of the shift.
According to Skinner, the luncheon took place on the following day, Friday, and,
in response to Smith's request to reinstate the two men, he stated that O'Brien
already had been reinstated. Although I am disposed to and do credit Smith's
version that the talk took place on Thursday, I deem the date to be of no particular
significance herein.? Presumably it is the General Counsel's purpose to show that
reinstatement resulted from the Union's request, thereby establishing O'Brien's
connection with union activity. It is equally logical, however, to deduce therefrom
that this also reflected Skinner's lack of animosity toward the Union.
As found, O'Briend attended the union meeting on the night of Thursday, January
22, at the scheduled location and encountered Skinner in the adjacent bar. In a
resulting conversation, according to O'Brien, Skinner offered him his former job.
O'Brien declined, stating that he was not experienced in the operation of a forklift
truck and that he would return if he were placed as a welder, work with which he
was familiar . Skinner replied that O 'Brien 's application had not disclosed this
experience and immediately offered him a job as a welder. While the General
9 The original charge filed on March 9 , 1959, did not list O'Brien His name was
added in an amended charge filed in June subsequent to various other charges.
° Skinner admittedly told the two men on the night of the union meeting that he was
reinstating them, but not because of the Un 'ion's "insistence ." The union meeting took
place on Thursday evening and this supports Smith's testimony that the -Union's request
for their reinstatement preceded the offer of reinstatement.
KIT MANUFACTURING COMPANY 435
Counsel stresses the fact that the application did show that O'Brien had been a
welder in a prior job, this information is on the back of the application and O'Brien
listed himself on the face thereof as a repairman . Furthermore , there is no evidence
that Skinner ever read this application and it would seem that Skinner's statement,
if made, was a gratuitous one.
As found, Skinner did instruct O'Brien and Norris on the evening of January 22
to refrain from engaging in union activities in the plant , and the record warrants
the finding that the statement was directed to O'Brien 's working time only and was
so construed by him . Be that as it may, there is no evidence that O'Brien there-
after engaged in any further union activities in the plant where he worked but an-
other 4 hours on January 26, as described below.
Skinner was scheduled to depart that weekend for a business trip to California
and advised Plant Foreman Brown that O'Brien would return to work as a welder.
O'Brien did report for work on Monday morning , January 26 , and was assigned to
Foreman Pearl Lewis of the welding shop. O'Brien testified that Lewis gave him
a copy of the plant rules with rule 20 circled; apparently no comment was made by
either man. O'Brien testified that he was ill when he reported for work that morn-
ing and at noon, 4 hours later, was too ill to continue . He asked Foreman Lewis
if he could see the company physician and was referred to Plant Foreman Brown.
The latter approved and O'Brien visited a company physician who gave him "nerve
capsules" to quiet him down and commented that he might have the flu. Because
of lack of funds , he did not adopt the physician 's suggestion that he proceed to a
Veterans Hospital at Boise
To the contrary , O'Brien proceeded to his residence and went to bed where he
remained for 4 days . He claimed that he called the plant on Tuesday morning and
again on Wednesday and notified "them" that he would not be in; the record does
not disclose whom he contacted on these occasions . He further testified that he
called in on Thursday and was put through to Skinner who had just returned from
California . The latter promptly told O'Brien that he was sorry; that Respondent
could not "use you any more"; and that Foreman Lewis as well as the other fore-
men did not want him. O 'Brien further testified that "I believe it was on Thursday"
that he spoke with Skinner.
This poses several conflicts which do not permit of precise resolution . As noted,
Foreman Lewis was not available to testify . Plant Foreman Brown flatly con-
tradicted the testimony of O'Brien that he gave notice of his departure on Monday,
January 22 , claiming that O'Brien said nothing to him about his illness and depar-
ture. He further claimed that Foreman Lewis had reported to him that evening
that O'Brien gave him, Lewis , no notice of his departure.8
Brown was then confronted with ' Respondent 's Exhibit No. 3, an official record
of Respondent , consisting of a change of status report on O'Brien admittedly filled
out by Foreman Lewis and dated January 29, wherein the latter wrote "upon being
reinstated this man assigned to my department as a Welder . At 12:50 p.m., he
stated he was unable to continue because he didn't feel well and left ." [ Emphasis
supplied.)
Obviously, as the General Counsel points out , if this report is credited , it places
Foreman Lewis in the position of contradicting Brown 's testimony on a basic aspect
of the case . The report continues on, however , to state "since he has not been in
touch I consider it to be a voluntary termination ." Thus, if the report is credited and
a finding is made that O'Brien did give notice to Lewis on Monday, a cogent argu-
ment is presented , contrary to the position of the General Counsel, for a further
finding that O'Brien did not contact Respondent again, or at least that no contact
was made with his immediate foreman . This further supports the testimony of
Skinner that he did not return until Saturday and therefore held no conversation
with O'Brien on the previous Thursday.
Still another disparity presents itself, shifting the ,tide momentarily in favor of the
General Counsel, in that Skinner signed a statement for an investigator of the
General Counsel wherein he deposed that he returned from California on a Thurs-
day; despite this, he thereafter maintained in his testimony that he had not written
the statement , a reference to the transcription by the investigator , and that he did
not return until the following Saturday . And this, of course, is not inconsistent
with Respondent's change of status report which in effect is a statement that O'Brien
never contacted Respondent after Monday.
8 His testimony was received only as evidence of what Lewis reported to Brown and
not as evidence of what O'Brien stated to Lewis.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
As noted, the case of O'Brien is marked by many conflicts of testimony but the
following factors are readily apparent.
(1) O'Brien's union activities were not outstanding prior to his original termina-
tion on January 14, 1959.
(2) No particular sustenance can be given to the position of the General Counsel
from the fact that the Union interceded for him after his first discharge and that he
was thereafter reinstated. The testimony involving the intercession by the Union is
equally capable of supporting an inference that Respondent was not motivated by
antiunion considerations.
(3) O'Brien did not thereafter engage in any union activities, at least not prior to
.his subsequent termination on January 29.
(4) While Foreman Lewis' statement refutes the testimony of Brown as to
O'Brien's giving notice of his departure on January 26, and here as well as below in
discussing the discharges of Jordon, I do not credit Brown's testimony, neverthe-
less, Lewis' affidavit proceeds to support testimony that neither Skinner nor other
management representatives thereafter heard from O'Brien.
(5) In sum then, this record will not support a finding that the original discharge
on January 14 was discriminatory and, although not entirely free from doubt, a
preponderance of the evidence impels the same finding as to the January 29 termi-
nation . It is accordingly recommended that the case of O'Brien be dismissed.
D. The discharge of Elsworth Jordon 9
Jordon was hired by Respondent as a maintenance man on or about February 1,
1959, following a chance meeting at the Stringbusters Lounge immediately follow-
ing his attendance at a meeting of the Union. Jordon had recently left the employ
of another concern in an allied field of manufacture which the Union apparently
was attempting to organize and he was a member of the Union at the time. As set
forth above, the meetings of the Union were held in a room adjacent to the String-
busters Lounge or in a similar facility at a local hotel.
The rate of pay was agreed upon, Jordon was promised a raise of 30 cents per
hour in 3 weeks, and he was directed to report to work on the following morning.
On so doing, as heretofore found, Skinner told Jordon that he did not want him to
attend any union meetings, that he would be "blackballed" if he did so, and that it
would help if Jordon spoke against unionization. Jordon promised to have nothing
to do with meetings of the Union while he worked for Respondent. Jordon ad-
hered to his pledge until approximately mid-March; a change of heart resulted from
the fact that he requested the promised pay raise from Skinner and the latter either
rejected the request or put him off.
Prior thereto, on or about March 1, 1959, Skinner, as Jordon testified, accused
him of attending union meetings contrary to his promise. Jordon, who in fact had
not attended any union meetings since his pledge, denied the accusation He changed
his mind on March 17 when he resumed attendance of union meetings and he at-
tended meetings on March 24 and 31.
Skinner was present in the adjacent bar on the night of the March 17 meeting and,
according to Jordon, conversed with him after the meeting. The record amply
demonstrates that Skinner was fully familiar with the fact that a union meeting was
being carried on at the time although his presence in the bar may well have been
primarily social in nature.
Also relied upon herein by the General Counsel is the fact that Jordon signed a
statement for a Board investigator on or about March 11, relating to the activity of
the Union at his prior place of employment. On March 12, he informed Skinner
of this act, although he did not recall whether Skinner questioned him about it or
whether he volunteered the information.
Jordon did not recall seeing Skinner in the area at the March 24 meeting, but did
observe him on March 31, although no conversation apparently took place. The last
day that Jordon actually worked for Respondent was Tuesday, March 31, according to
Respondent's records, and he was thereafter terminated under the following
circumstances.
On the morning of April 1, as Jordon uncontrovertedly testified, and I so find,
Jordon telephoned the plant and spoke with his immediate superior, Foreman Lang,
who customarily directed his work. He complained of a foot infection, obtained
permission from Lang to be absent, and the latter stated that he would notify Skinner
of Jordon's'absence. Skinner conceded that Jordon's superior, presumably Lang,
O In the complaint his name appears as Ellsworth Jordon.
SIT MANUFACTURING COMPANY 437
had so notified him on April 1. Jordon's testimony was that on coming to work for
Respondent, Skinner had instructed him to "call in" in case of absences and did not
specify whom to call. I find that Jordon complied with the appropriate instruction
both on this occasion as well as on the following day, described below. While Re-
spondent attempted to claim that Jordon had in effect terminated himself, the record,
as will appear below, warrants a finding that Jordon was discharged by Respondent
on April 2; indeed Skinner so conceded in an affidavit submitted to a Board
investigator.
On the morning of April 2, Jordon's feet were still troubling him. He telephoned
the plant, as he testified; was connected with the office girl; and notified her that he
would be absent that day as well. She agreed to notify his superior. Unlike the
previous day which Jordon had devoted to soaking his feet in a manner previously
prescribed by his physician, Jordon did visit a local physician that morning.io
At approximately 1:30 p.m., while treating his feet at home, Jordon read the local
paper and noticed an advertisement by a local employment agency for a maintenance
man; he immediately realized, in view of the smallness of the community, that this
was manifestly his job. This advertisement was in an afternoon paper which hits
the streets at approximately 2 p.m. The advertisement also appeared in the April 1
issue of the paper, as well as the April 2 issue, and Jordon believed that on this
occasion he noticed it in the April 1 issue. It is actually immaterial herein which
day's issue Jordon was reading because he promptly repaired to the plant and arrived
at 2:30 p.m.
He saw Skinner, showed him the advertisement, and asked if this meant that he
was discharged. Skinner replied in the affirmative, according to Jordon, and stated
that he had been taking off too much time and that he had been staying overtime
to do his work; Skinner promptly gave him his paychecks.
Skinner claimed that he told Jordon he had not written a termination notice for
him, but that he was looking for another maintenance man. Jordon persisted and
asked if this meant that he was discharged. Skinner finally admitted that if Jordon
stated it in that form, "that's the way it is." Skinner claimed that he had not decided
to terminate Jordon as of that moment and contended that he had him in mind for
another job at the plant. The fact is, however, that Skinner never mentioned this
other position to Jordon at any time and I find, therefore, that Skinner discharged
Jordon on this occasion.
Contentions and Conclusions
Initially, I believe that it is unnecessary to treat with the multiplicity of contentions
raised by Respondent herein in all their ramifications, because a partial consideration
of them will readily demonstrate their lack of substance and intrinsic contradictions
and serves rather to lend substantial support to the contentions of the General
Counsel herein.
(1) Respondent developed evidence to the effect that Jordon was reprimanded,
in a notice prepared by Skinner on March 30, 1959, for smoking and loitering in
the restroom; it is not clear whether the incident took place on March 30 or prior
thereto The simple answer to this is that Skinner admitted it played no part in the
decision to terminate Jordon.
(2) Skinner claimed that Jordon was lacking in all qualifications as a maintenance
man. However, according to Jordon, and I so find, Foreman Lang told him 3 weeks
after he was hired that he was progressing satisfactorily and, in addition, Skinner
told him to keep up his good work. Jordon was never warned about the possibility
of discharge and even Skinner testified only that he once told Jordon that he had
to learn his job "better."
(3) Respondent adduced testimony to the effect that Jordon was absent a great
deal whereas Jordon testified that he was absent only 2 half days during March with
both absences authorized by Respondent. While Respondent's own exhibit, Jordon's
change of status report prepared on April 13 subsequent to the date of his termina-
tion, states that Jordon's attendance was irregular, this very exhibit lists the hours
that Jordon worked during March as 41, 36.5, 37.3 and 42 hours per week. This in
my belief, and I so find, supports the testimony of Jordon. A further reference
in the exhibit to 16 hours presumably refers to the partial workweek which ended
the month and included the last 2 days that Jordon worked. Moreover, Jordon un-
controvertedly testified that he was never criticized for these two absences.
(4) While it would seem that Respondent was not dissatisfied with Jordon prior
to the end of March, Respondent adduced considerable testimony concerning an
10 Skinner testified that Jordon called in only on April 1 ; he later admitted that Jordon
might have called upon April 2, but did not speak with Skinner.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incident on March 21, which allegedly demonstrates that Jordon was insubordinate
and refused to cooperate because he did not finish a work assignment on that date.
It is Respondent's claim, as testified by Skinner and Foreman Brown, that Jordon
was called in on a Saturday morning to perform an urgent assignment, viz, relocat-
ing of certain pipes which were used as airlines; that Jordon actually worked about
2 or 3 hours; and that he then left with the project incomplete. It is claimed that
Brown was required to finish the project himself that afternoon so that the new
installation would be ready for use on Monday morning.
The testimony of Jordon is diametrically opposed to that of Respondent's two
witnesses, as is that of his former coworker James Taber. Both were in substantial
agreement that they worked on this airline installation that morning; that after it
was finished at approximately 10:30 or 11 a.m., Jordon told Brown that the project
was finished and further that he was not feeling well; and that Brown, noting that
the job was finished, authorized Jordon to leave for the day. Skinner's testimony
with respect to this incident varied considerably He originally testified that he did
not know whether Jordon received permission to leave, but later claimed that
permission was not obtained from Brown or himself. There are, however, several
further factors which demonstrate that the testimony of Taber and Jordon herein
is the more reliable.
(a) It is conceded that although Jordon worked the rest of the month of March,
consisting of the week of March 23 and 2 days on March 30 and 31, Respondent
never mentioned this alleged dereliction to him. Although Jordon's termination
notice which is in large measure couched in generalities such as refusing to cooperate
in the work and not being qualified to do the job, became specific and cited workweek
hours in support of the claim, treated above and rejected, that Jordon was excessively
absent during March, it was silent as to this episode.
(b) Jordon resided about 5 blocks from the plant, had a telephone, and yet was
not contacted on this day after his purported premature departure. If his presence
was so urgently required, surely a contact could readily have been made and yet
there is no evidence that any was attempted.
(c) The record uncontrovertedly discloses that Taber was instructed that Saturday
afternoon to build tables after, as Taber claimed, the airlines project was complete.
Taber claimed herein that he worked until noon on the tables and then left the
plant upon completing this assignment. This not only tends to demonstrate that no
afternoon work was performed, but significantly is readily refutable by Taber's
time record if his testimony were contrary to the fact; no such record was proffered
herein. Moreover, if the airlines project was urgent but incomplete, why then was
Taber permitted to work on the tables and not retained on the airlines. No answer
consistent with Respondent's claim herein presents itself.
(d) As appears below, Skinner claimed that he had not decided upon the termi-
nation of Jordon at the time he appeared at his office on April 2. This is hardly
compatible with the change of status report which purports to support a decision
to discharge Jordon because of the March 21 incident.
(e) Respondent was not reluctant to issue a correction notice on March 30
reflecting Jordon's smoking and loitering in the restroom. It would readily seem
that the March 21 incident, if it took place as Respondent claims, was as serious
if not more so, yet no correction notice was issued and Skinner did not even know
whether he spoke to Brown about reprimanding Jordon. Indeed, Skinner con-
ceded that it could well be that no one mentioned this purported major dereliction
to Jordon Even Brown, who was purportedly assigned to complete the task and
had allegedly been reprimanded by Skinner for not completing the airlines project
that morning, was unable to state whether he had ever mentioned the incident to
Jordon.
(5) A consideration of the circumstances of Jordon's discharge and the varia-
tions in the testimony raises the suspicion that the termination notice of April 5
was an ex post facto document prepared by Respondent in an effort to bolster its
position herein and was not a true reflection of Respondent's reason for terminat-
ing Jordon.
The document refers to Jordon as a trainee with Respondent from March 1
through April 13. The fact is that he started with Respondent well before March 1
and although the document may have been prepared on April 13 Jordon was not
an employee at that time. The document further refers to Jordon being off "3 days
straight" without notice to Respondent and Skinner testified in similar fashion.
But it is undisputed that Jordon worked on March 31 and it obviously follows that
he had been absent only 1i/2 days at the time he appeared in the office on the
afternoon of April 2. Moreover, as found, it is admitted that Jordon notified the
appropriate authorities on April 1 with respect to his absence and, as found, he
did likewise on April 2. Even here, Skinner, while claiming that Jordon did not
KIT MANUFACTURING COMPANY 439
have his permission to be absent , conceded that the permission of the plant fore-
man was sufficient and that he did not know whether Jordon had obtained it.
(6) Another inconsistency is the claim of Skinner that he realized within 1 or 2
weeks after Jordon was hired that he was not qualified as a maintenance man and
decided to discharge him. Yet, Skinner further claimed that as of April 2, many
weeks later, at the very moment Jordon entered his office with the advertisement
for his replacement , he had not decided to terminate the man. Indeed, he allegedly
had him under consideration for another post more suitable for him
(7) Skinner contended that he did not intend to discharge Jordon and had him
in mind for another post in the plant. But he did not offer him this or any other
post or even mention it, and I, therefore, do not credit his testimony in this respect.
(8) Skinner testified that he contacted the employment agency which ran the
advertisement a day or so before it appeared in the paper. He then testified
that he might have contacted them 2 or 3 days before. Still later, in an obvious
attempt to peg this to the Saturday incident of March 21, he testified that he either
contacted the agency on Monday, March 23, or decided to make the contact on
that date.
Totally aside from the obvious impossibility of reconciling this with the decision
to terminate the man early in his employment, as well as the claim that there was
no decision to terminate him prior to his appearance at the plant on April 2, this
impels the conclusion that Respondent had decided to terminate Jordon prior to
his absences on April 1 and 2 The advertisement appeared in the April 1 issue of
the paper and arrangements for the advertisement were surely made at the very
latest on the morning of April 1, a date on which Jordon's absence was authorized.
Indeed, it would seem that where Respondent was operating through an employment
agency the contact of the agency was probably made prior to April 1
The foregoing is highlighted by the fact that the March 21 incident so strongly
relied upon herein by Respondent followed by only 4 days the occasion, on March
17, when Jordon disobeyed Respondent 's instructions at the time of his hiring to
refrain from union activities on penalty of punishment , proceeded to attend a union
meeting, and was observed on the scene by Skinner. In view of this together with
the lack of substance to Respondent 's contentions herein , I firmly believe , on a strong
preponderance of the evidence, that Jordon was discharged because of his union
activities. --
I find that by discharging Elsworth Jordon on April 2, 1959, Respondent has
discriminated with respect to the hire and tenure of employees within the meaning
of Section 8(a) (3) of the Act I further find that by the foregoing, Respondent has
interfered with, restrained, and coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act, within the meaning of Section 8 (a) (1) thereof.
However, I do not believe that there is substantial. evidence in support of the allega-
tion that Jordon's discharge was violative of Section 8(a) (4) of the Act and I shall
therefore recommend the dismissal of that allegation.
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 set forth in section I, above, have a close, intimate, and sub-
stantial 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 unfair labor practices, I shall 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 discriminated with respect to the hire and
tenure of employment of Elsworth Jordon. I shall therefore recommend that
Respondent offer him immediate and full reinstatement to his former or substan-
tially equivalent position without prejudice to seniority or other rights and privi-
leges See The Chase National Bank of the City of New York, San Juan, Puerto
Rico, Branch, 65 NLRB 827. I shall further recommend that Respondent make
him whole for any loss of pay suffered by reason of the discrimination against him.
Said loss-of pay, based upon earnings which he normally would have earned from
the date of the discrimination to the date of the offer of reinstatement , less net earn-
ings, shall be computed in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289 See N.L.R.B. v. Seven-Up Bottling Company of Miami,
Inc., 344 U.S. 344.
Because of Respondent 's demonstration of its willingness to resort to unlawful
methods to counteract an attempt by its employees to achieve self-organization
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through a labor organization of their own choosing , the inference is warranted
that the commission of other unfair labor practices may be anticipated . It will
therefore be recommended that Respondent be ordered to cease and desist from in
any manner interfering with , restraining, or coercing its employees in the exercise
of the rights guaranteed by the Act. However, nothing in the recommended order
is intended to require Respondent to rescind its insurance plan.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
'CONCLUSIONS OF LAW
1. United Steelworkers of America, AFL-CIO, and Blue Mountain District
Council, Lumber & Sawmill Workers, AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act.
2. Kit Manufacturing Company is an employer within the meaning of Section
2(2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Elsworth
Jordon , thereby discouraging membership in a labor organization , Respondent has
engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
4. By the foregoing , by threatening to shut down its plant in the event of union
organization , by threatening employees with reprisals for engaging in union activi-
ties, and by promising and instituting benefits for employees in return for rejecting
unionization , thereby interfering with, restraining , and coercing employees in the
exercise of the rights guaranteed by Section 7 of the Act , Respondent has engaged
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 com-
merce within the meaning of Section 2 (6) and (7) of the Act.
6. Respondent has not discriminated with respect to the hire and tenure of
employment of Larry O'Brien, Jr.
7. Respondent has not engaged in unfair labor practices within the meaning of
Section 8(a)(4) of the Act.
[Recommendations omitted from publication.]
Yale Upholstering Company , Inc. and Local 149, United Furni-
ture Workers of America , AFL-CIO. Case No. 1-CA-2676.
April 27, 1960
DECISION AND ORDER
On December 30, 1959, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
127 NLRB No. 65.