Reeves Rubber, Inc.

National Labor Relations Board - Board Decisions

Feb 3, 1945

60 N.L.R.B. 366 (N.L.R.B. 1945)

In the Matter of REEVES RUBBER, INC. and UNITED RUBBER WORKERS OY
AMERICA (C. 1. 0.)
Case No. 01-C-2378.-Decided February 3,191,5
DECISION
AND
ORDER
On September 16, 1944, the Trial Examiner issued his Intermediate-
Report in the above-entitled proceeding, finding that the respondent
had engaged in and and was engaging in certain unfair labor practices.
and recommending that it cease and desist therefrom and take certain-
affirmative action, as set out in the Intermediate Report attached
thereto. Thereafter, the respondent filed exceptions to the Inter-
mediate Report and a brief in support of the exceptions. No request
for oral argument before the Board at Washington, D. C., was made-
by any of the parties. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the respondent's exceptions and brief, and the entire,
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Reeves Rubber, Inc., its offi-
cers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Rubber Workers, affil-
iated with the Congress of Industrial Organizations, or in any other
labor organization of its employees, by discharging or refusing to
reinstate any of its employees, or in any other manner discriminating
in regard to their hire or tenure of employment or any term or con-
dition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
60 N. L. R. B., No. 75.
366
REEVES -RUBBER, INC. 367"
labor organizations, to join or assist United Rubber Workers, affiliated
with the Congress of Industrial Organizations, or any other labor-
organization, to bargain collectively through representatives of their
own choosing and to engage in concerted activities for the purposes,
of collective bargaining or other mutual aid or protection, as guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer Jacob Horn immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority and other rights and privileges;
(b) Make whole Jacob Horn for any loss of pay he may have suffered
by reason of the respondent's discrimination against him by payment
to him of a sum of money equal to that which he normally would have
earned as wages from the date of his discharge to the date of the
respondent's offer of reinstatement, less his net earnings, during such
period;
(c) Post immediately in conspicuous places at its plant in San
Clemente, California, and maintain for a period of at least sixty (60)^
consecutive days from the date of posting, notices to its employees
stating: (1) that the respondent will not engage in the conduct from,
which it is ordered to cease and desist in paragraphs 1 (a) and (b) of
this Order; (2) that the respondent will take the affirmative action set
forth in paragraphs 2 (a) and (b) of this Order; and (3) that the
respondent's employees are free to become or remain members of
United Rubber Workers, affiliated with the Congress of Industrial Or-
ganizations, and that the respondent will not discriminate against any
employees because of membership, activity in that or in any other labor
organization ;
(d) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what-
steps the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent discriminated in regard to the hire and tenure of
employment of Margaret LaDuke within the meaning of Section 8 (3).
of the Act be, and it hereby is, dismissed.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Afr George H. O'Brien, for the Board.
Wright d Alilliken, and Herschel B. Green, of Los Angeles , Calif., for the re-
spondent.
Mr. Harng W . Clifford, of Los Angeles , Calif., for the Union.
-368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF TFIE CASE
Upon an annendecl charge filed by United Rubber Workers of America,
affiliated with the C. I 0, herein called the Union, the National Labor Relations
Board, herein called the Board, by its Regional Director for the Twenty-first
Region (Los Angeles, California), issued its complaint, dated May 25, 1944,
against Reeves Rubber, Inc., herein called the respondent, alleging that the re-
spondent had engaged in and was engaging in unfair labor practices affecting
-commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
-Copies of the complaint and the amended charge, accompanied by notice of hearing,
were duly served upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged in substance
that: (1) the respondent from on or about January 14, 1944, to the date of the
complaint interrogated its employees as to their union membership and activities,
threatened to sell the plant if the Union organized the employees and warned
that union organization would entail lay-offs and plant shut-downs, urged its
employees to relinquish their membership in the Union, suggested to its em-
ployees that they form a company union, and characterized unions in opprobrious
and derogatory terms, (2) the respondent discharge Jacob Horn on or about
-February 2, 1944, and has since refused to reinstate him because lie joined and
assisted the Union, (3) the respondent transferred Margaret LaDuke to a less
desirable position on or about February 3, 1944; thereby forcing her to resign,
and has since failed and refused to reinstate her because she joined and assisted
the Union, and (4) the respondent by the foregoing acts interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act. The respondent's answer filed June 15, 1944, denied the
-commission of any unfair labor practices and denied that the Board had juris-
diction. The respondent additionally averred in the nature of affirmative de-
fenses that: (1) the employment of Horn was terminated for good cause wholly
unrelated to his Union membership and activities; and (2) the respondent
-transferred LaDuke from the day shift to the swing shift in order to increase
-production and efficiency and that she thereupon left the respondent's employ
of her own volition and without the consent of the respondent The respondent
further avers that, at all times since February 3, it has been ready, able, and
willing to reemploy LaDuke at the same compensation she was receiving when
she left the respondent's employ.
Pursuant to notice, a hearing was held on June 15, 16, 17, and 19, 1944, in
San Clemente, California, before William J. Isaacson, the undersigned Trial
:Examiner duly designated by the Chief Trial Examiner. The Board and the
-respondent, represented by counsel, and the Union, by a representative, par-
ticipated in the hearing Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues, was afforded
,all parties. At the opening of the hearing the Board's counsel moved to amend
the pleadings to read "Reeves Rubber, Inc.," wherever the name of the respond-
ent appeared as "Reeves Rubber Company." The motion was granted without
objection. At the close of the hearing counsel for the Board moved to conform
the pleadings to the - proof with respect to formal matters There being no
objection, the motion was granted At the close of the hearing the respondent
-moved to dismiss the Board's complaint in its entirety and the various parts
thereof This motion is herewith granted with respect to the Board's allega-
tion that the respondent transferred LaDuke to a less desirable position thereby
forcing her to resign and since that time has refused and failed to reinstate her
-because she joined and assisted the Union. The remainder of the motion is
REEVES RUBBER, INC. 369
herewith denied-for the reasons set forth in Section III hereof . At the close of
the 'hearing counsel for the Board and the respondent argued orally on the
record before the undersigned . None of the parties filed briefs although afforded
an opportunity to do so.
Upon the entire record in - the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a California corporation, incorporated April 16, 1943, as a
successor to Ray R. Reeves Rubber Company, a limited partnership. It has
its office and place of business at San Clemente, California, where it is engaged
in the manufacture of synthetic rubber products used exclusively in the manu-
facture of military aircraft. During the period from April 16, 1943, the date
of its incorporation, up to and including December 31, 1943, it purchased raw
materials valued at approximately $31,000, about 50 percent of which was
shipped to it from points outside the State of California. During the same
period, the respondent sold products valued at approximately $171,000, all of
which was shipped to Consolidated Vultee Aircraft Corporation, North American
Aircraft Company, Rohr Aircraft Company, Goodyear Rubbber Company, and
Goodrich Rubber Company, for use in airplanes manufactured for the United
States Army Air Forces. During the first week of February 1944, the
respondent employed 77 persons in its plant.'
II THE ORGANIZATION INVOLVED
United Rubber Workers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization admitting to membership employees of
the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
On January 15, 1944, employee Jacob Horn' went to Los Angeles to secure the
aid ofthe-Union's officials in an attempt to organize the respondent's employees.
The night before, Horn, in a conversation with Snow, the respondent's secretary,
had disclosed his intention to confer with the union officials. According to
Horn, Snow began the conversation by inquiring about the "attitude" of the
employees. Horn replied that the employees' morale was "very poor" and, in
order to remedy the situation, he planned to go to Los Angeles the next day
and enlist the Union's support in organizing the respondent's employees Re-
joining that he was against unions which he had found to be composed of
"racketeers," Snow suggested that the employee form a "little club" of their
own instead. He shrugged his shoulders when Horn asked whether he was
1 These facts are predicated upon stipulations entered into between counsel for the Board
and the respondent at the hearing, the undisputed testimony of Ray R Reeves, the
respondent's president and a letter from Larry D. Snow, the respondent's secretary to
the Board's Regional Office in Los Angeles, dated March 17, 1944 Although the respondent
in its answer denied that the Board had jurisdiction over its operations, Secretary Snow
admitted in the-above letter that the respondent is "covered by the Interstate Commerce
Laws as the greater majority of materials . . . produce [d] originate [d] outside the State
of-California and all of [its] material is sold to the U. S Government indirectly through
the aircraft companies."
R Horn's discharge is hereinafter discussed at pp. 375-382, infra.
628563-45-vol. 60-25
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suggesting the formation of a "company union " Horn continued that the United
Rubber Workers was the oily bona fide union in the rubber industry Snow
cautioned that he would be compelled to combat the Union, because of his position
as an official of the respondent. According to Horn, Snow at the conclusion of
their conversation, suggested that Horn again meet-with him the following day
and that, in accordance with this suggestion, he made a special trip to the plant the
next morning' and met with Snow in his office. Snow again depicted union leaders
as "racketeers" whose sole interest was the extraction of union dues Horn
informed Snow that he nevertheless adhered to his original intention to confer
with the Union officials that day. Snow, admitting that he had had a con-
versation with Horn on January 14, testified, "When he mentioned unionizing
the'plant I asked him what he had in mind. And he said that the company
needed a union, and that he was dissatisfied with his job and that he was either
going to quit or form a union." Thereupon, Snow admittedly advised Horn,
"Well, Jake, if you are dissatisfied why don't you go see Doe [President Reeves]."
He denied, however, making the other statements attributed to him by Horn-
Snow also denied talking with Horn concerning unions on January 15, de-
claring that he had attempted to arrange an appointment for Horn with Presi-
dent Reeves that day, but without success since Reeves was already in conference
when Horn came into the respondent's offices Upon his observation of the
demeanor of Horn and Snow upon A he witness stand, and in view of Snow's
virtual admission that upon learning of Horn's plan to organize. the employees
he sought to arrange a meeting between Reeves and Horn in order that Reeves
might dissuade Horn-from continuing with his project, the undersigned finds
that the above conversation took place substantially as related by Horn The
undersigned finds, however, that Snow did not suggest that Horn meet with
Snow on Saturday but recommended that Horn confer with President Reeves
before proceeding to discuss organizational tactics with the Union's officials.
The undersigned further finds that Snow, failing to arrange a meeting between
President Reeves and Horn that clay, utilized the occasion to repeat the
statements attributed to him by Horn
The next day, Sunday, January 16, upon his return from Los Angeles, Horn
was informed by employee John Horn, Sr., his father, that President Reeves
desired to speak with him at the plant that day. Accordingly, Horn went to
the plant that morning and met with President Reeves and Andrew Stiller, the
respondent's day shift foreman and assistant to Plant Superintendent Charles
Arens' According to Horn's testimony, which the undersigned credits,-Horn,
upon arriving at the plant, gave both Stiller and Reeves circulars which he had
obtained at the Union's headquarters the previous day Stiller, declaring that
he already knew of Horn 's mission to Los Angeles "about unions," commented
that Horn, as a result of his union experiences at Pacific Hard Rubber Company,
where Stiller and Horn had previously worked, should know better than attempt
to unionize the respondent's employees He explained, however, that the reason
Horn had been summoned to the plant was to inform him that he was "being
groomed for a better job" Frorn thereupon vowed that he had not "contacted
any of the fellows"concerning the Union, but that he had merely forewarned
the management before taking action. Reeves bluntly inquired whether Horn
3Ilorn 's hours of employment were from 4 o'clock in the afternoon until 12 midnight
Sunday through Friday.
S The undersigned rejects Reeves ' testimony that he was not responsible , for , Horn's
appearance at the plant that day Significantly , Secretary Snow admittedly' - attempted
the previous day to arrange a meeting to afford Reeves an opportunity to eliminate the
cause of Horn ' s dissatisfaction ,-which dissatisfaction presumably inspired his attempt to
unionize the plant.
REEVES RUBBER, INC. 371
intended to proceed with his plan, threatening that "if the Union came in he
intended to sell to Kirkhill," a- rubber manufacturer located in California.
Reeves explained that he had come to San Clemente "to get away from unions."
"far enough away that the union wouldn't bother him," because of his troubles
with racketeer-controlled unions in Boston, Massachusetts. He warned that in
the event the plant was successfully organized it "would be run by Negroes from
Los Angeles and Mexicans from San Juan Capistrano"' At this juncture,
Reeves, declared that he wished to pattern his plant after the Hershey plant
in Hershey, Pennsylvania, promised that "If the employees-wanted they could
set up a grievance committee of their own and he would be glad to interview
anybody in his office at any time." Neal Frazer, the respondent's electrical con-
sultant joined their conversation and interposed, "Why [don't] the fellows give the
Doe [Reeves] a chance to pay for his machinery, and forget about organizing for
awhile and give him a chance to think the thing over" Horn agreed not to
"sign anybody up" until he had given Reeves an opportunity to improve condi-
tions in the plant. The testimony of Stiller and Reeves with respect to the
foregoing conversation, although differing from Horn 's version in some respects,
is corroborative thereof in several material particulars. Thus, Stiller testified
that President Reeves warned that "lie couldn't afford to put up with any strikes
or fight the unions" and that "he would sell the place" rather than do so Stiller
denied that he participated in the discussion as well as the remainder of Horn's
testimony concerning Reeves' role therein Reeves also admitted that during
the aforesaid conversation lie had threatened to sell the plant in the event of
difficulties with the Union. Moreover, in contrast to Stiller's testimony, he
admitted that Frazer had made the statement attributed to him by Horn and
that Horn had pledged, "Well, Doe, I can see your position. I won't sign the
fellows up I will come to you personally before I go into any union activity."
Reeves, admittedly accepting this pledge, replied, "OK " Reeves furthermore
admitted, "I have told all the employees at any time they want to come to my
office, the office is open to them ; and they can have whatever committees they wish.
We will welconie any ideas of that type." (Emphasis supplied.) Reeves, while
denying that he had made any reference to Negroes or Mexicans, admittedly
warned Horn "it you [hire] through the hiring hall you [have] to take whom-
ever they [send] to you." Reeves denied the remainder of Horn's recital of their
conversation. Upon the undersigned's observation of the demeanor of Stiller and
Reeves, coupled with his examination of their testimony, noting especially the
anti-union character of the statements admittedly made by Reeves, the fact
that Reeves' and Stiller's testimony varied not only from Horn's account of the
above discussion but from that of each other, and noting further that the state-
ments attributed to them are similar to undenied statements made by them
and other members of the respondent's management to other employees (see pp.
6-8), the undersigned rejects their conflicting versions of the above conversation,
insofar as they differ from Horn's recital.
Horn testified that, in accordance with Snow's prior request that he advise
Snow of the outcome of the above conversation he stopped in Snow's office after
talking with Reeves and Stiller, and informed Snow of his conditional promise
to suspend organizational activities for an indefinite period.e
6 San Juan Capistrano is one of several villages within the vicinity of the plant.
0 Snow denied that he had had any conversation with Horn between Saturday, January
15, and'February I., In view of Horn's explicit account of what he said to Snow, coupled
with tlip'reference admittedly made by Snow on February 1 to Horn's prior assurance' given
to him and Reeves that Horn would suspend organizational activities ( p. 375, infra), the
undersigned finds that this conversation occurred as narrated by Horn.
I
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to his promise given President Reeves on January 16, Horn, for about
2 weeks thereafter refrained from all organizational activities. On Sunday,
January 30, however, Horn, feeling that "conditions in the factory had gone
from bad to worse" began an intensive solicitation campaign among the em-
ployees. That afternoon he canvassed 19 employees at their homes in San
Clemente and San Juan Capistrano, securing applications for union membership
from all of them. That same evening, at Horn's request, Margaret LaDuke, a
dayshift forelady in the buffing and trimming department, signed a union applica-
tion card. She and Horn then visited the homes of 6 female employees, securing
applications for membership from all but one of them, Evelyn Higginson, a
secretary to the respondent's officials. The next few days, during the employees'
rest and lunch periods, LaDuke continued her activities on behalf of the Union,
advising the employees to join the union which Horn was currently organizing.
On Wednesday, February 2, 3 days after the aforesaid solicitation activities
began, the respondent took vigorous counter-measures to halt solicitation activities
and defeat the-Union. Early that afternoon Horn was peremptorily discharged
under circumstances hereinafter fully discussed at pp. 375-382, inifra. Horn's dis-
charge signalized the commencement of the respondent's anti-union drive. At
about 4 o'clock that same afternoon President Reeves assembled the female em-
ployees from the day and swing shifts and exhibited to them a defective fuel cell
fitting. He announced that the millman responsible for this fitting had already
been. discovered and discharged. He also advised that appropriate government
officials had been informed of what had occurred in order to determine whether
there had been "sabotage". At 8 o'clock that sane evening Oliver Robertson,
foreman of the buffiisg and trimming department, assembled the swingshift
women employees in the plant during their lunch period. According to the
undisputed testimony of Alice Gibson and Dora Miller, which the undersigned
credits, Robertson, after alluding to the defective fuel cell fitting which had
previously been exhibited to theirs by Reeves, observed that Horn had been spend-
ing considerable time soliciting in behalf of the Union and that several of the
girls had been asked to join. He warned that he knew from his own personal
experience that unions were a "graft" and a "racket" from which the employees
could derive no benefit. Moreover, he predicted that not only would the.em-
ployees not receive a wage increase if organized, but, on the contrary, the Union
would cause them considerable trouble He illustrated by warning that Presi-
dent Reeves would sell the plant in the event of successful union' organization.
Robertson not only failed to deny the statements attributed to him by employees
Gibson and Miller, but he admitted admonishing the employees that if the plant
were unionized the respondent would be required by the Union to import union
laborers from Los Angeles to make necessary machine repairs, thereby entailing
a shut-down of the machinery and a consequent loss of work to the employees.
He further admitted warning them that the respondent would have no choice
in the selection of employees for hire but would be compelled to hire whomever
the union hiring hall sent.
That same evening, after Foreman Robertson's address, Mrs Robertson, the
nightshift forelady, called the employees together again and led them into Presi-
dent Reeves' office where they met with Reeves, Stiller, and the respondent's vice
president, Mr. Corley.' According to employees Miller and Gibson, Mrs. Robert-
' The evidence is in conflict as to the precise date this meeting and Mr Robertson's
previously described address took place. There is credible testimony that both of the
aforesaid meetings occurred on February 2, the date of Horn's discharge. There is also
some vague and equivocal testimony to the effect that it occurred 2 or 3 clays later. It is
clear, however, from the subjects under discussion and the statements made at both of these
REEVES RUBBER, INC. 373
son, without discussing the matter with the employees present, advised Reeves
that the girls liked Horn very much and consequently "were willing to give up the
Union" in consideration of his reemployment. Reeves replied that Horn's dis-
charge was unrelated to his union activities, but„in any event, Horn was still
retained upon the pay roll. He thereupon proceeded to recount his difficulties
with unions in the east, as a result of which, he declared, he -had come to San
Clemente He added that he desired to pattern his plant after "Hershey" and
make of his employees a "happy family". Reeves replied by repeating the warn-
ings previously made to Horn that the Union would require the hiring of Mexicans
and Negroes, and union repairmen from Los Angeles threatened to sell the plant.
He recommended that they "have a committee to get together and come to [him]"
concerning grievances. At this juncture the management officials retired to the
adjoining office and the Union members, in compliance with Mrs. Robertson's
request, signified their membership by raising their hands One of the women
inquired whether the employees who had joined the Union and paid an initiation
fee could secure a refund of their initiation fees. Thereupon, Mrs. Robertson
recalled the management officials and propounded the same question to them.
Stiller admittedly responded that since Horn's father still retained the Union's
funds they might secure refunds from him. Reeves, however, advised the as-
sembled employees that the management was not permitted to advise them con-
cerning unions.'
That sauce day, President Reeves, according to Joseph Mercado, a leadman
.upon the swing shift whose undisputed testimony the undersigned credits, called
Mercado into his office and, showing him a defective fuel celi fitting, declared
that Horn was guilty of such work. Reeves then inquired, "What is this I hear
about the union[" Mercado disclosed that he was a member of the Union, as
were all of the swing shift employees. Reiterating the evils which would befall
the respondent and the employees in the event of unionization, Reeves again
threatened to sell the plant to Kirkhill. Reeves did not testify with respect to
the foregoing conversation.
The next morning, February 3, a meeting of the pressmen on the day shift
was held in President Reeves' office' Kenneth Michael, a maintenance employee,
testified without contradiction that he was advised of the meeting by Otis Rod-
man and one Rohn, the head of the maintenance department. After the meeting
meetings , as well as the persons in attendance at both meetings that they took place on
February 2 It is unnecessary to detail the evidence upon which the undersigned relies in
making this finding It suffices to point out that at the time of Mrs. Robertson ' s meeting
with President Reeves which undeniably occurred after Mr. Robertson ' s meeting, Horn,
as the above-testimony establishes , v.as still on the respondent ' s pay roll at the time of
the meeting. It is undisputed than February 3, Horn was given his certificate of avail-
ability for employment by Preside t Reeves and removed from the respondent 's pay roll
Moreover , the only forelady in attendance at both meetings of the sing shift employees
was Mrs . Robertson , forelady of the swing shift The evidence is undisputed that February-
2 was the last night that she acted as, forelady upon the swing shift
8 Stiller ' s testimony concerning the above described meeting differs somewhat from that
of Mrs Gibson and Mrs Miller . The undersigned finds that his account is not only in
conflict with their testimony and with other portions of the record , but is self-contradictory
as well Reeves did not deny that the above meeting took place as testified by Mrs Gibson
and Mrs. Miller. Mrs Robertson , although present at the hearing , was not called upon
by the respondent to testify . Accordingly , the undersigned credits the testimony of Mrs.
Gibson and Mrs. Miller with respect to the meeting
6 Vera Hanson , erstwhile forelady of the night shift of the trimming and buffing depart-
ment , testified that she saw the pressmen assemble in the management ' s offices on February
3. Michael , however, vaguely testified that it took place some 2 or 3 weeks after Horn's
discharge The undersigned rejects his ambiguous testimony in this connection and finds.
as Hanson testified , that the meeting took place on February 3
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was called to order by employee Charlie Alterman. Rodman pointed out that it
was improper for officials of the managements to be present whereupon Corley,
Reeves and Rohn temporarily left the room Alterman, announcing that it was
for the employees to decide whether or not they desired a union, distributed a
slip of paper to each of them upon which they were to write "yes" if in favor
of the Union and "no" if opposed. Before the vote was taken he pointed out
that although he had been a union member between 30 and 40 years it had not
done him a "particle of good." Upon examination of the collected ballots,
Alterman announced that all of those present had voted "no." The management
officials thereupon returned to the meeting and Reeves asked Stiller and Snow
to speak. Stiller pointed out that the current wage rates- at the respondent's
plant were higher than those at Pacific Hard Rubber Company, a unionized
plant,'° whereupon Secretary Snow announced that President Reeves had made
an application for a wage increase covering all of the respondent's employees.
The meeting thereupon adjourned.
The respondent did not, as is already established, limit its anti-union activ-
ities and conduct to the afore-described group meetings. Reeves and Stiller
interrogated the employees individually concerning union activities and mem-
bership and attempted to persuade them to relinquish their membership. Thus,
about 2 or 3 days after Horn was discharged President Reeves called leadnian
Mercado aside and asked him whether he knew of any employee upon the swing
shift who was not a Union member. Upon Mercado's reply in the negative
Reeves signified his concern, commenting "This thing has got me worried."
Reeves did not deny that this conversation occurred as testified by Mercado In
the same fashion Stiller admittedly inquired of employee Constancio Romero,
whether he had signed an application card Upon Romero's affirmative reply,
Stiller thereupon advised him that, since he had not taken an oath, he was
nevertheless not a member.
Stiller went beyond interrogation of the employees in his attempt to induce
them to abandon the union. Sometime during the month of February Stiller
approached Leadman Mercado and asked him to persuade the employees to
withdraw from the Union Mercado replied that he was unable to do so since
"everybody was a hundred percent". Stiller nevertheless urged Mercado "to
talk to the fellows and try to talk them out of it . . . form a club of some
kind, instead of a union, because unions [are] no good; they [will] just get you
into a lot of trouble " Stiller, while denying that he had asked Mercado to
persuade the employees to abandon the Union admitted "there was some
conversation about . . . a club, starting out a club," and "I did tell him some-
thing-that if it was started it probably would help build up the morale of the
people." Stiller, in concluding his testimony n1th respect to this conversation,
declared "I have been asked so many questions by various employees I can't
recall-just what he asked me or just what I answered him " The undersigned
rejects Stiller's vague and evasive denial that the conversation occurred as
narrated by Mercado and credits Mercado's straight-forward account.
Emulating the respondent's leading officials, Forelady Robertson advised Vera
Hanson during the first part of February that the union would do them no good,
warning that they would- he working "by the side of Negroes". She further
added that "if the plant broke down [they] would be thrown out of work and
have to wait until a union man would be called to repair it." About the middle
of February, after Mrs. Hanson became a forelady of the swing shift in the
buffing and trimming department, Mrs. Robertson instructed her to ascertain
10 The undersigned does not credit Stiller's denial that he was present at the above
described meeting.
REEVES RUBBER, INC. 375
which of the female employees were joining the Union. Moreover, Mrs. Robert-
son, thereafter several times directed Mrs. Hanson to isolate the female em-
ployees from one another during their rest periods and lunch hours in order to
prevent union discussions . In particular , she advised Hanson not to let employee
Dora Miller work in the pressroom alongside of the male employees since she
was known to have engaged in union discussions with them ." In similar fashion,
President Reeves and Superintendent Arens summoned Leadman Mercado to
Reeves' office and instructed him to keep Mrs. Gibson on the job since she was
"going around and signing other girls." There is no evidence in the record that
the respondent had ever promulgated a rule prohibiting the employees from
conversing with one another, either while at work or during the rest periods.
The undersigned finds that the respondent by the foregoing statements and
conduct of its officials and supervisory employees 12 interfered with, restrained,
and coerced the employees in the exercise of the rights guaranteed them in
Section 7 of the Act."
B The discharge of Jacob Horn
On February 2, 1914, at the inception of the Union's organizational campaign
and in the midst of the anti-union activities hereinabove described (pp. 3-8,
supra), the respondent summarily discharged Jacob Morn.
On November 22, 1943, Horn, at the urging of Foreman Stiller, accepted a
position with the respondent.'} From that date until his discharge, he was
continuously employed as a millman upon the swing shift under the supervision
of Foreman Stiller His principal duties were to mill, compound, and tube
synthetic rubber stock for use in the presses and moulds in the manufacture of
airplane parts
Horn, as the above summary of facts uncontrovertibly establishes was the
foremost union advocate among the respondent's employees. Not only was he
solely responsible for inducing the Union to organize, but, on January 30, 3 days
before his discharge, Horn, with some assistance from Margaret LaDuke, con-
ducted a successful Union solicitation campaign among a large number of the
respondent's employees
Nor were Horn's solicitation activities, as the respondent contended at the
hearing, unknown to the respondent at the time of the discharge. At about 5
o'clock on the evening of February 1, shortly after the swing shift had begun,
"As previously noted Mis Robertson was not called upon by the respondent to testify
and this testimony concerning her statements and activities stands undenied in the record.
12 The respondent is plainly - answerable for the activities of its officials and supervisory
employees , all of whom had general powers of supervision and obviously had supervisory
status upon which may be predicated employer liability. International Association of
Machinists v. N. L R. B , 311 U S 72, 79-50 , H. J. Heinz Co v N L R. B , 311 U S 514,
520-521; N L R B v. Schaefer-'Hitchcock Co, 313 F (2d) 1004, 1007 (C C A 9)
"The undersigned finds further evidence of independent violations of the rights guar-
anteed the employees in Section 7 of the Act in the circumstances surrounding Horn's
discharge and LaDuke's transfer (pp 375-385, infra)
There is additional testimony in the record by Board witnesses of other anti -union state-
ments made by the respondent 's employees , which , if credited , would be violative of the Act.
The undersigned, however, noting especially the vague character of the testimony of the
Board witnesses in question , and their inability to testify with any degree of particularity
as to when the asserted conversations took place , rejects their testimony and credits the
denials of the supervisory employees who assertedly made the anti-union statements
"One of the inducements offered Horn by the respondent was a promise to pay $100
toward his transportation expenses from the State of Washington , w;here he was temporaiily
residing , to San Clemente The respondent mailed Horn $ 50 at the time he accepted the
respondent 's offer of employment and promised to pay Horn the balance after lie had been
employed for a period of 6 months
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Secretary. Snow approached Horn and engaged him in conversation 15 According
to Horn, Snow inquired why Horn had breached his promise to Snow "in regard
to the union," pointing out, "'you gave-me your word you wouldn' t organize
until you saw me " (See p. 371, supra .) Horn, denying that he had given Snow
such a pledge, explained that since conditions of employment within the plant
had continued to deteriorate he had begun to organize the preceding Sunday.
Snow, professing an inability to comprehend why Horn desired to bring a union
into the plant "to tell Doe [President] Reeves how to run his business ," inquired
concerning the employees' basic grievance. Horn replied that he could not pre-
sume to represent all of the employees since each employee had his particular
grievance, but, that as soon as the Union was organized the employees would
establish a grievance committee to bargain on their behalf. Thereupon, Snow
predicted as he had in his previous conversations with Horn (see p. 371, supra)
that unionization would result in the hiring of Negroes and a loss of work in
the event of repairs to plant machinery by union laborers. Snow, admitting,
that he had begun the aforesaid conversation, testified however, that Horn
volunteered the information that he had begun to organize. He admittedly re-
plied "Jake, I thought you told Doc you would talk to him about it, and you
told me you would talk to Doe before you made any steps." -Moreover, he testified,
that in answer to Horn's inquiry as to whether he had anything against
unions, he replied that he had nothing "against unions in particular" but that
there were a few things which puzzled him, whereupon, he inquired why Union
officials' salaries were not publicized and Union income was not taxed. The
undersigned, crediting Horn's version of this conversation, finds that Snow raised
the subject of Horn's union activities.
It is plain from the foregoing conversation that the respondent's officials, as
early as Tuesday, February 1, knew of Horn's extensive solicitation activities
in behalf of the Union. But aside from this affirmative and direct testimony
concerning the respondent's knowledge of Horn's Union activities the entire
congeries of events surrounding Horn's solicitation activities decisively refutes
the respondent's claim that it had no knowledge thereof at the time of his
discharge. It is undisputed that the management was forewarned of the domi-
nant role which Horn ultimately played in the Union's solicitation campaign.
This fact coupled with the extensiveness of Horn's solicitation activities among
the respondent's small and compact staff of 77 employees including the attempted
solicitation of an office employee, the ensuing discussion among the employees at
the plant emphasizing Horn's prominent role, the respondent's interrogation of
employees concerning the union membership and activities of their fellow employ-
ees, and President Reeves' admission that he knew the identity of some union
members,16 lead the undersigned to conclude that the respondent knew of Horn's
solicitation activities at the time of his discharge.
The testimony of the respondent' s witnesses , President Reeves and Foreman
Stiller, concerning the events of February 2 leading up to and including Horn's
15 Snow testified that the conversation took place about 9 o ' clock that night. Mercado,
corroborating Horn ' s testimony , testified that Horn and Snow spoke together for about 45
minutes at about 5 o ' clock that evening The undersigned finds that the conversation
took place at the time testified by Horn and Mercado
11 Reeves admitted that he knew the identity of certain of his employees who had joined
the Union . Upon examination as to the source of his information Reeves vaguely replied
"well , different persons told me they were. They seemed to mention around the shop that
certain people are union members and certain people are not union members" Moreover,
Airs Hanson testified without contradiction that Reeves informed her that "he knew the
names of most everybody that had joined the Union ", pointing out , by way of illustiatlon,
that he knew that one , Mrs Ziegler , was a union member.
REEVES RUBBER, INC. 377
discharge is in sharp conflict. Thus, President Reeves testified that upon arriv-
ing at the plant at about 11 or 11:30 that morning he discovered that certain
fuel cell fittings had failed to cure," although they had been in the presses the
required length of time. Reeves directed the pressman immediately to inform
Stiller thereof. Upon learning that Stiller was absent from the plant because
of flu's he went to Riley's restaurant which is located upon the main thorough-
fare in San Clemente, where he had breakfast. He further testified that upon
returning to the plant and seeing Stiller for the first time that day, he informed
him of the undercured fuel cell fittings, and that, in the middle of the afternoon
.Stiller advised that he had discharged Horn and that Horn had threatened to
make the esppndent "pay through the nose" for his discharge. He denied that
he had had any conversation with Stiller concerning Horn prior to the discharge
declaring, "Mr. Horn and Mr. Stiller were very good friends at first, and I just
didn't want to get into it." He subsdquently shifted his testimony stating, "It
seems to me that Stiller did state that he bet Horn had left sulphur out of the
batch, that was about all."
Stiller's testimony concerning the events of that day is not only in direct
conflict with President Reeves' version hereinabove set forth but is self-contra-
dictory as well. On direct examination Stiller testified that at about 12:30 on
the afternoon of Wednesday, February 2, he arose from his sick bed and went
to Riley's restaurant where he met Robertson and Reeves, and that- Reeves
informed him of the defective fuel cell fittings although he made no reference
to Horn. He further testified that upon leaving Riley's he went to the plant for
about an hour, whereupon, as a result of an investigation which he conducted,
he proceeded to Horn's house and discharged him.
Horn, who testified prior to Reeves and Stiller, stated that while driving
through the main thoroughfare of San Clemente at about 12:30 or 1 o'clock that
afternoon he waved to Robeitson, Reeves, and Stiller who were standing
together opposite Riley's restaurant. He further testified that about 5 or 10
minutes later Stiller came to his house and discharged him.
Upon the undersigned's observation of Stiller 1° and Reeves, and his examina-
tion of their testimony hereinabove summarized, noting especially the marked
disparity between their testimony as well as the various self-contradictions
contained in each of their accounts, the undersigned is compelled to reject their
testimony as incredible and finds that the sequence of events that day was as
Horn testified. The undersigned therefore finds that Reeves and Stiller decided
to discharge Horn at Riley's and that immediately thereafter Stiller proceeded
to Horn's house to carry out this decision.
This finding is further borne out by the continuously shifting and conflicting
character of Stiller's testimony concerning his activities during the hour which
assertedly elapsed between his return to the plant and his discharge of Horn.
Stiller first testified that upon returning to the plant he discovered that the
"kidney coupling" moulds had been shut down since the day shift of the previous
day because of a lack of rubber stock 20 He claims that lie further discovered
that although several batches of stock had been milled, they had not been blended
and sheeted preparatory for use in the "kidney" moulds. In direct conflict to
31 "Cut ing" refers to the process whereby the rubber , after milling , is inserted in a
press or mould where it remains until it reached a desired degree of hardness and con-
sistency. "Undercured" rubber is scrapped.
11 Stiller was absent from the plant on account of flu from about 4 . 00 o'clock Monday
afternoon , January 31 , until early Wednesday afternoon, February 2
19 As has been established , Stiller was an unreliable and incredible witness
20 "Kidney coupling" Is the name given to a kidney shaped rubber coupling which the
respondent manufactures.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his previous testimony as to his conversation with Reeves at Riley's, Stiller
claimed that he did not notice the defective fuel cell fittings until President
Reeves called them to his attention. He testified that he thereupon placed some
of the defective stock in the "testing block" and that it failed to "cure". On
cross-examination, however, Stiller changed his testimony and declared that he
had not made any tests before discharging Horn.
Stiller continued that, since the defective fittings were made from so-called
"quarter round" stock, he then inquired of Lois Lashbrook, a stock cutter, which
shift had milled the stock in question, and that she replied that it had been milled
by the swing shift. He testified that Lashbrook was able to distinguish between
stock milled on the day and night shifts because the former was evenly piled,
whereas the latter was haphazardly, thrown upon the table" Stiller also testi-
fied that he interrogated the millman on the day shift, Gasaway, as to whether
he had milled any of the stock in question and that Gasaway had replied in the
negative Subsequently, however, Stiller testified "I have a faint recollection
he told me he did not run any of that stock." Gasaway, although presently
employed by the respondent, was not called upon by the respondent toy testify.
Stiller first testified that he determined to discharge Horn upon ascertaining
from his conversations with Lashbrook and Gasaway that Horn had milled
the defective stock. He then switched his testimony and declared that he con-
cluded that Horn had milled the defective stock by an examination of his time
cards for the preceding 2 days. Upon admitting that the time cards contained
no information as to whether Horn had milled "quarter round" "frill round" or
"flat" stock, lie further vacillated, declaring that upon examination of these cards
he noted that Horn had not run any coupling stock. In addition to betraying
the falsity of Stiller's assertions as to when he determined to discharge Horn
this statement itself is admittedly false. Stiller after testifying throughout the
hearing concerning the failure of the "kidney" moulds to operate as a result
of a shortage of stock, which he attributed to Horn, finally admitted that the
only mould which was not in productive operation on February 2 was the mould-
in which the defective stock had been run. This latter statement is corroborated
by Reeves.
Finally, contrary to Reeves' testimony, Stiller testified that upon determining
to discharge Horn he notified Reeves to this effect. After first testifying that
he could not recall whether Reeves made any reply to this announcement he testi-
fied that he departed from the plant so hurriedly- that Reeves had no opportunity
to reply.
According to Horn, upon Stiller's arrival at Horn's house, Horn inquired
whether Stiller's visit was prompted by his Union activities. Stiller, replying
"not necessarily," declared that he had heard nothing of Horn's organizational
activities since "he had been ill Monday and Tuesday, and he hadn't been in
the factory yet that day ,12 Stiller then asked Horn to detail what lie had
done in the plant the preceding day. After Horn had replied that he had worked
extremely hard milling and tubing sufficient Goodrich stock to keep the presses
running Stiller responded that he believed that Horn was responsible for leaving
21 Lashbrook, although testifying at length concerning the events of that day, made no
reference to such conversation She testified that Stiller merely instructed her not-to cut
any more of the stock in question since it was defective She further testified that when
asked by Reeves whether she knew who milled the stock she replied "[she] didn't know
who milled it " She testified, however, that although not advising Reeves to this effect, she
was of the opinion that the stock had been milled on the swing shift because of the manner
in which it had been piled -
22 The undersigned 's finding that Stiller discharged Florn immediately after conversing with
Reeves at Riley's restaurant is further borne out by the above testimony.
REEVES RUBBER, INC. 379
sulphur out of a batch of Goodrich stock. Moreover, he added, there had been
no kidney coupling stock on hand that morning. He concluded that since Horn's
work had been unsatisfactory and that Reeves was aware of his "fraternizing"
with women and drinking oh the job, Reeves had directed his discharge. Horn
replied that he knew that` his discharge was the result of his Union activities
and that he intended to file charges with the National Labor Relations Board to
that effect 2'
Thereupon, Stiller and Horn separately went to the plant. Stiller informed
Reeves of the substance of his conversation with Horn and notified Snow of the
discharge Upon Hor'n's arrival at the plant Snow, after some conversation with
Stiller and Reeves gave Horn a check for his wages through February 1.
Horn, after cashing the check at the bank, returned to the plant and paid Snow
the monthly rental for the house which he subleased from the respondent. Snow
had already begun to make out a receipt for the payment when Reeves, learning
of the transaction, shouted, "Don't take his money I want him out of there
I want him to move. I want that place for my employees " Reeves, however,
finally permitted Snow to accept the proffered money. Horn then asked Snow
for a certificate of availability for hire and a notice to quit the premises which
he occupied. Snow replied, "You heard what the Doc [Reeves] said. I have
nothing more to do with it. You will have to ask him." Accordingly, Horn made
the same request of Reeves. Reeves began to recite how good he had been to
Horn whereupon Horn interrupted that such recital was beside the point.
Reeves then inquired, "Didn't `Red' [Stiller] tell you why you were fired"? Horn
replied, "Yes, `Red' told me a lot of things I still don't actually know why I
was fired." Reeves then said that as soon as he made a chemical analysis of the
defective fuel cell fitting he would advise Horn as to whether he was discharged
and that, in the meantime, he remained upon the pay roll. The following day
Reeves gave Horn a certificate of availability for employment setting forth that
Horn's services had been terminated.
It was only after Stiller advised IIorn that he was discharged that the re-
spondent began to search for evidence to substantiate its position that the fuel
cell fittings were defective and that Horn was responsible for their milling. As
the undersigned has found (p 377, septa), after the discharge, Stiller admittedly
conducted a series of tests upon the fuel cell stock, in order to determine whether
it was in fact defective. The result of the tests varied, one curing, one partially
curing , and the third failing to cure Moreover, it was after the discharge that
Reeves asked Lashbrook whether she knew who had milled the stock in question
and that she had replied that she was unable to form an opinion . (Footnote 21,
supra).
Counsel for the respondent contended before the undersigned that Horn was
selected for discharge because of his poor workmanship, low volume of output,
drinking on the premises and reporting for work while intoxicated, and "frater-
nizing" with the girls. Counsel for the respondent concluded that Horn's failure
to include sulphur in the Goodrich stock on February 1, precipitated his dis-
charge.' An examination of each of the grounds assigned as a basis for Horn's
discharge discloses that the discharge was motivated by reasons wholly unrelated
- '-It would serve no useful purpose, in view of Stiller ' s established incredibleness as a
witness, to extend this lengthy discussion still further by setting forth Stiller ' s self-
contradictory account of the above conversation. It suffices to say that Stiller's testimony
is in this respect, also, unworthy of belief.
R' Significantly , the respondent 's counsel omitted any reference to Horn's asserted failure
to mill kidney coupling stock on February 1 as a reason for discharge As we have noted,
S1 iller had insisted throughout most of his testimony that the failure to mill kidney coupling
ats ock was on- of the principal grounds for the decision to discharge Horn
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the manner in which he performed his duties as a millman. Thus, the respond-
ent's contention that Horn came to work while drunk is based upon a single episode
which, on its face, demonstrates the implausibility of the respondent's contention
On Saturday, January 22, Horn, with the permission of Stiller, arranged to be
absent from the plant Sunday, working upon the day shift Saturday instead, in
order that he might attend a party at his home that Saturday night. About 10
o'clock that night Stiller came to Horn's house, which was .near the plant and, after
having several drinks asked Horn to come to the plant and mill sufficient Goodrich
stock to keep the presses in operation that night Stiller suggested that one Fer-
ren, who was in attendance at the party, could assist Horn in tubing the stock.
Thereupon Stiller, Horn and Ferren went to the plant and Horn, without punching
the time-clock, began to weigh stock preparatory to placing it upon the mill. In
the meantime, Stiller, after instructing Ferren concerning the details of the
operation, started the mill. At this point President Reeves, noting that Ferren
and Horn had apparently been drinking, ordered them to shut down the mill.
Stiller explained to Ferren that Reeves was "scared of compensation laws.", Ac-
cordingly, Horn and Ferren shut down the machinery and left the plant. That
the respondent did not consider this incident a matter of any consequence, let
alone a subject for disciplinary action, is not only plain from the above facts but
from the undenied fact that Horn was never reprimanded Equally devoid of
merit is the respondent's contention that Horn was selected for discharge because
of drinking on the premises. Horn admittedly had opened a bottle of beer at
the plant on two occasions, one while off duty. That the respondent did not
consider either of these incidents a matter for disciplinary action is established by
the undisputed fact that on both occasions Foreman Stiller shared the beer
with Horn
As for Horn's asserted "fraternizing" with women, the record is barren of
evidence to support this contention. Stiller admittedly never complained to
Horn because of such asserted activity. -
The respondent's contention that Horn was generally careless and incompetent
in the performance of his duties and that his volume of production was low is
based upon the testimony of Stiller and a comparison and analysis of Horn's
time cards with those of Gasaway, the millman upon the day shift. With respect
to Horn's rate of production, however, Stiller, after first testifying on direct
examination that he had called to Horn's attention the disparity between Horn's
and Gasaway's rate of production, completely reversed his testimony and stated,
"I don't recall about speaking to him on the amount of his production. No,
the quality was all I was interested in." In view of this admission by Stiller,
the supervisor who purportedly decided upon Horn's discharge, that Horn's rate
of production was not a factor which he considered, the respondent is foreclosed
from contending that the discharge was motivated thereby. By the same token,
it is irrelevant that a comparison of Horn's and Gasaway's time cards indicates,
as the respondent contends, that Gasaway was a more productive millman than
Horn.
With respect to Horn's asserted incompetence and carelessness Stiller stressed
the following incidents as demonstrative thereof. He testified that Horn (1)
frequently overloaded the mill thereby causing it to stall and, on one occasion,
such overloading resulted in breaking the mill's pinion gear ; (2) scorched stock ;
(3) failed to include sulphur in a "bumper pad"; (4) failed to cross-blend stock;
(5) failed to refine reclaimed rubber before milling; and (6) on New Year's Day,
Horn and Gasaway, while engaged in cleaning plant machinery absented them-
selves from the plant for about a half hour in order to bring back a small radio"
25 Stiller admitted that the plant was not in operation at the time , but that Horn and
Gasaway were engaged - in overtime work.
REEVES RUBBER, INC. 381
Under the circumstances of this case, it is unnecessary to determine whether
Horn was careless and incompetent in the particulars hereinabove alleged. It is
clear from the record that, not only were these asserted derelictions not cause for
disciplinary action or threat of discharge at the time they occurred but, on the
contrary, the respondent admittedly continued to consider Horn a competent
employee Thus, when but 3 weeks before Horn's discharge and before Horn had
engaged in any of the aforesaid union activities, Horn threatened to quit the
respondent's employ, the respondent's management officials admittedly persuaded
him to remain. About January 12, as a result of Stiller's accusing him of scorching
stock and breaking the mill's pinion gear, Horn angrily informed Stiller that if
his work were unsatisfactory he desired his "dismissal slip." Stiller made no
reply to this offer. The next day, Horn, still embittered over the charges levelled
at him by Stiller, met with Superintendent Arens and Stiller and advised Arens
that since he disliked working with defective machinery and was annoyed by
Stiller he was quitting the respondent's employ. Arens urged him to reconsider
his decision and remain, pointing out that Stiller was merely attempting to main-
tain production, and that they were all somewhat on "edge" because the equipment
was antiquated." Stiller admitted that he too urged Horn to remain, pointing
out that the plant would obtain new equipment and that Horn "had a good future
with the company," that he was "foi eman material" in fact." As a result of
their exhortations, Horn consented to remain in the respondent's employ. Arens
testified, in explanation of his strenuous attempts to induce Horn to remain,
"I was very anxious to keep Mr. Horn. His work up to that-I wouldn't say up
to that period, but in general, in most of the period, it had been very satisfactory.
I had worked with NIr Horn before I knew his possibilities " Stiller also dis-
closed that lie had told Arens on two occasions that Horn "is an awful good
worker, but lie is a little bit rugged on his machinery He is not used to smaller
mills ' There is no evidence in the record that any of Horn's asserted derelictions,
aside from the incident on the night of January 22, when Reeves refused to allow
Stiller and Ferren to operate the mill, occuri ed after his conversation with Arens.
On the contrary the incidents upon which Stiller relies most heavily as a basis for
the discharge all occurred prior to the aforesaid conversation and both Stiller
and Arens admitted that Arens was apprised of these incidents at the time i
It is clear from the above facts that Horn's discharge was discriminatory.
The timing of the discharge at the inception of Horn's solicitation activities, of .
which fact, as the undersigned found, the respondent was fully aware, consti-
tutes persuasive proof of discrimination. The respondent was attempting to rid
itself.of the Union; Horn's discharge was the first step of the respondent's
campaign to effectuate that end. The discriminatory character of Horn's dis-
charge is underscored by the implausibility of the reasons advanced by the
respondent as grounds for its action, particularly in view of the vague, indefinite,
conflicting and incredible character of the respondent's supporting testimony.
It is clear from Horn's conversation with Arens and Stiller; and Aren's testimony
in explanation thereof, that the incidents to which the discharge was belatedly
attributed were not motivating factors. With respect to the events of February
1 and 2. which events assertedly precipitated the discharge, the respondent's
supporting testimony is not only confused and contradictory, but, as the record
discloses, Horn was discharged without prior investigation or inquiry into these
events. In conclusion, the undersigned finds that none of the incidents upon
26 Shoitly after Horn's discharge the mill which he had been operating ,ias taken out
of operation.
21 Compare Stiller's statement to Horn on January 16 when Stiller informed him that
he was being groomed for promotion.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the respondent relies prompted the discharge, but served as pretexts to
cloak the respondent's real motive, the respondent's openly expressed and fully
implemented desire to defeat the Union.
Upon all of the foregoing facts, and upon the entire record, the undersigned
finds that Horn was discharged because of his membership and activities in
behalf of the Union.
C. The transfer of Margaret LaDuke
Mrs. LaDuke was first employed by the respondent in December 1941 as a
trimmer in the buffing and trimming department 28 For several months prior to
February 3, the date that she left the respondent's employ, she had been the
day shift forelady in that department with between 12 and 15 girls under her
supervision. She, in turn, was under the supervision of Foreman Oliver
Robertson.
As previously found (p 372, supra), LaDuke joined the Union on January 30
and from that date until she quit, 4 days later, actively urged her fellow employ-
ees to join the Union. That the management was aware of her union activities
is-established by the following undisputed account of her conversation with
Foreman Stiller. On the morning of February 3, shortly after the day shift
began, Stiller inquired of employee Lois Lashbrook whether she was a member of
the Union, to which she replied in the negative. He then commented that he
had heard that it meeting had been held at LaDuke's house for the purpose of
securing union memberships LaDuke, upon learning of this conversation from
Lashbrook, accosted Stiller and branded the foregoing statement as untrue.
Stiller replied that he had heard a statement to that effect in the plant the
preceding night.
Within 10 to 15 minutes after this conversation, Foreman Robertson sum-
moned LaDuke into his office and handed her a letter over his signature dated
February 3, stating that she and Nancy Robertson, who was currently the fore-
lady of the buffing and trimming department swing shift, were to exchange
positions effective as of the following day. Upon Leading the letter she pro-
tested, "You know I can't work on the swing shift. I have stock to take care of
at,home in the afternoon." 2° Robertson testified that be thereupon pointed out,
"This is only a temporary expedient We are trying to bring up the efficiency of
the day shift. It may take two weeks or three weeks. At the end of the time
you come back on your regular shift " LaDuke, according to Robertson, replied,
"No, I am the oldest employee here and I am entitled to this job If I can't have
this I will not work at all. I will quit." She thereupon went to the plant offices
and, informing Higginson that she was quitting, asked for her current wages.
Reeves thereupon came into the office and asked what was taking place. Hig-
ginson replied that LaDuke was quitting, to which LaDuke added, because
Robertson had transferred her. Reeves thereupon urged her to remain, pointing
out that the transfer would be of a "temporary" nature. LaDuke replied that
Robertson's letter made no reference to the temporary character of the transfer,
but that, in any event, she was quitting.3° Pursuant to her request, Reeves
thereupon signed a certificate of availability for employment, declaring that she
23 The buffing and trimming department's function is to remove with scissors and buffers
the rubber overflow which adheres to the inside and outside peumeters of the various rubber
pieces upon their removal from the presses
2° LaDuke referred to the livestock which she and her husband raised upori'their small
farm nearby the plant.
^-0 LnDuke admitted at the hearing that she was unwilling to accept even a temporary
transfer to the swing shift.
REEVES RUBBER, INC. 383
"could tear it up" if she desired. At this point LaDuke and he retired to his
Qffice where he outlined the manner in which her work was deficient. He pointed
out that the output of the day shift was inferior to that of the night shift,
specifically referring to, a shipment of kidney couplings which Consolidated-
Vultee had returned but a few days before because of scissor cuts. He concluded
that Mrs Robertson was being transferred to the day shift in order to increase
its efficiency After her conversation with Reeves, Robertson approached La-
Duke and asked her whether she had reconsidered her decision to quit LaDuke
rejoined that she had secured "her time and availability" and was through.
On March 11a 1944, after a charge had been filed with the Board in the instant
case, alleging, among other things, LaDuke's discriminatory transfer, Presi-
dent Reeves wrote LaDuke a letter offering her a position either on the day or
swing shifts under the supervision of either foreladies Robertson or Hanson at
the same compensation which she had previously received as a forelady. LaDuke,
by letter dated March 22, rejected the respondent's offer stating "I cannot come
back under the conditions which you impose, feeling due to my length of service
with you, this is a deliberate insult and knowing that you knew I would not
come back under the conditions which you have stipulated." Subsequently,
President Reeves by letter dated May 1, invited LaDuke to attend a dinner which
he and his wife were giving for the respondent's female employees as well as
some of the former employees. Bill LaDuke, LaDuke's husband, replied by post
card dated May 2. 1944.
Why don't you stop this baloney and, stop sending letters and invitations
to Peggy She is not working for you anymore and net,er will. I'll tell
you that much Throw that line of yours on to the help that don't know
you so well Jl
The respondent contended in its answer and during the hearing that it
selected LaDuke for transfer to the swing shift solely for the purpose of incrcas-
ing the day shift's efficiency and volume of production. This contention is
predicated primarily upon the testimony of Foreman Robertson who assertedly
finding LaDuke inadequate as a forelady, decided without consultation with
any other member of the management, to transfer her to the swing sh ft
Robertson estimated that for some time prior to February 3, Cunsolidated-
Vultee and Rohr Aircraft, the respondent's sole purchasers of kidney couplnres,
were rejecting as defective between 20 and 25 percent of the kidney couplings
shipped These rejections were because of negligently inflicted scissor cuts,
blisters and flow cracks which the respondent's inspectors had failed to detect"
He further testified that he traced the negligent inspection, and trimming to the
day shift since that shift primarily trimmed and inspected kidney couplings -As
a matter of fact, both LaDuke and Robertson testified that seNeral Lmcs during
the month of January he criticized LaDuke for lapses of her trimmers and
inspectors He complained, "You have just got to quit trying to do all the
work yourself and devote yourself to taking care of the department right,
because I don't figure, when I see you out here working with a buffer or with
a knife or scissors, I don't think you are doing the job you are here for "
In fact, as LaDuke admitted, only a few days before she quit, Robertson
31 At the hearing. Reeves testified that he had always been able and willing to rehire
LaDuke, and that lie was currently wilting to iehrre LaDuke on the day shift as head of
both the gauging and checking divisions with some 7 to 10 employees under her super-
vision at the same rate of compensation which she previousily received. -Counsel for
the'respondent reiterated this offer at the conclusion of the hearing
n Robertson testified that there were no records presently available regarding the
quantity and percentage of rejects.
384- . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complained to her that the trimmers under her supervision were responsible
for the faulty trimming. To substantiate his complaint he showed her 2
trimmers improperly trimming at that very time.
In addition, he several times complained to LaDuke in December and January
about miscounts in the number of articles shipped, which task was solely under
her supervision. Illustrative thereof was his discovery about the end of
December of a single shipment of some 1100 to 1200 pieces which reflected
a gross miscount of several hundred pieces At the same time Vice-President
Corley informed him that the aircraft companies were extremely-critical of the
respondent's errors in shipping and inspection Robertson testified that as a
consequence of these miscounts and inefficiencies in trimming and inspection he
began to consider transferring LaDuke. The necessity for such a change, he
claimed, became increasingly apparent with the continued expansion of the
respondent's personnel and volume of production ". He pointed out that as a
result of the respondent's continuing expansion of operations and enlargement
of personnel the department was reorganized Whereas formerly the buffing
and trimming department was under a single supervisory head, LaDuke, the
department is now divided up into subdivisions, many of which constitute new
operations Each is under the direction of a "lead girl". In addition to these
"lead girls" one King Faurot assists Mr Robertson in supervising the work
of the day shift." The swing shift numbering about 20 employees is under the
supervision of a "lead girl" Robertson also stressed the changeover from
kidney couplings to fuel cell fittings as the respondent's principal item of
production as an additional reason for LaDuke's transfer, claiming that Mrs
Robertson, as contrasted with LaDuke, had familiarized herself with the buffing
and trimming of fuel cells prior to LaDuke's transfer.
The circumstances surrounding Lalhike's transfer, noting among other things,
the respondent's established anti-unionism, especially the discriminatoiy dis-
charge of Horn, and the timing of the transfer concurrently with her Union
activities, give rise to some suspicion regarding the respondent's motive in select-
ing her for transfer. The undersigned, however, is not convinced that LaDuke's
selection for transfer flowed from the respondent's anti-unionism. On the con-
trary, the suspicions conjured up by the above circumstances are dissipated by the
following facts. It is clear from the record that good cause existed for the trans-
fer; LaDuke was admittedly the subject of criticism because of her failure prop-
erly to discharge her supervisory functions. Moreover, her inadequacies as a
supervisor became increasingly apparent and the subject of more frequent coin-
plaint with the respondent's continuing expansion of production and personnel.
That the reason for the transfer was LaDuke's inadequacy'as a supervisor,
i ather than, as the Board's counsel asserts, an attempt to provoke her quitting, is
further established by the sincere although ineffectual attempts of both Reeves
and Robertson to induce LaDuke to reconsider her precipitate decision to quit
and to remain in the respondent's employ. That, as the Board's counsel con-
tended, the respondent was fully aware of the inconvenience which would result
to LaDuke as a result of the transfer is, under the hereinabove circumstances,
without significance. Obviously, an employer may in the interest of more efficient
operation and increased' production order changes which will entail inconven-
as Whereas LaDuke had supervised some 13 employees trimming and buffing products
valued at about $20 ,000, the respondent , at the time of the hearing, employed some 50
employees ' on the day shift producing products valued at $167,000 ' Moreover, in contrast
to the 5 or 6 parts in operation when LaDuke left the respondent 's employ , the respondent
now had in production between 50 and 60 different parts
14 Mrs Robertson , who preceded Faurot, left the respondent' s employ about the middle
of March -
REEVES RUBBER, INC. 385;
iences to its employees Knowledge on the part of an employer of-resultant in-
convenience to an employee as a result of a proposed change becomes. significant-
only if it can be coupled with a showing that the employer was motivated ini
effectuating the change for the purpose of provoking a union adherent to leave-
his employ. The undersigned is unable to draw such an inference from the,
above facts
In conclusion, the undersigned finds that the respondent directed the transfer-
of LaDuke solely for legitimate economic considerations. Accordingly, the under-
signed dismisses the Board's complaint insofar as it alleges that LaDuke was,
discriminatorily transferred and thereby forced to resign.
IV. THE EFFECT OF TILE"UNF_ III L APOR PRACTICES UPON, COMMERCE
It is found that the activities of the respondent set forth in Section III above;
occurring in connection with the 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 of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in certain unfair-
labor practices it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
Since it has also been found that the respondent discriminated in regard to
the hire and tenure of employment of Jacob Horn, it will be recommended that-
the respondent reinstate Horn to his former or substantially equivalent position„
without prejudice to'his seniority or other rights and privileges. It will be.
further recommended that the respondent make whole Horn for any loss of pay
lie may have suffered by reason of such discrimination, by payment to him of
a sum of money equal to the amount lie normally would have earned as wages
from the date of the discharge against him to the date of the respondent's:
offer of reinstatement, less his net earnings 36 during such period.
Upon the foregoing findings of fact and upon the entire record in the case,
the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Rubber Workeis of America, (C. I. 0 ), is a labor organizations
within the meaning of Section 2 (5) of the Act. -
2 By discriminating in regard to the hire and tenure of employment of
Jacob Hoin and thereby discouraging membeiship in the United Rubber Work-
ers (C I. 0 ), the respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining and coercing its employees in the exercise,
of the rights guaranteed in Section '7 of the Act, the respondent has engaged.
in and is engaging in unfair labor practices within the meaning of Section 8 (1).
of the Act
35 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would pot have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and' Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N L R. B 440 Monies received for
work performed upon Federal, State, comity, municipal, or other work-relief projects shall
be considered as earnings . See Republic Steel Coiporation v, N. L it, B., 311 U. S. 7.
628563-45-vol 60-26
I
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the-Act.
5. The respondent has not engaged in unfair labor practices within the
-Weaning of Section 8 (3) of the Act by transferring Margaret LaDuke to a
less desirable position, thereby forcing her to resign and failing and refusing
to reinstate her because she joined and assisted the Union.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and -
upon the entire record in the case, the undersigned recommends that the
respondent, Reeves Rubber, Inc, its officers, agents, successors, and assigns,
-shall :
1. Cease and desist from : -
(a) Discouraging membership in United Rubber Workers (C. I 0 ), or in
.any other labor organization of its employees, by discharging'or refusing to
reinstate any of its employees, or in any other manner discriminating in regard
to their hire and tenure of employment or any term or condition of employment ;
-(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization, to form labor organi-
zations, to join or assist the United Rubber Workers, (C 1 0 ), 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 as guaranteed in Section 7 -of
the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Offer- Jacob Horn immediate and full reinstatement to his former or -
substantially equivalent position, without prejudice to his seniority or other
rights and privileges ;
(b) Make whole Jacob Horn for any loss of pay he may have suffered by
reason of the respondent's discrimination in regard to his hire and tenure, by
payment to him of a sum of money equal to that which he normally would have
,earned as wages from the date of his discharge to the date of the respondent's
offer of reinstatement, less his net earnings," during such period ;
(c) Post immediately in -conspicuous places at its plant in San Clemente,
,California,- and maintain for a period of at least sixty (60) consecutive days
from the date of posting, notices to its employees stating* (1) that the re-
spondent will not engage in the conduct from which it is recommended that it
cease and desist in paragraphs 1 (a) and (b) of these recommendations; (2)
that the respondent will take the affirmative action set forth in paragraphs
2 (a) and (b) of the recommendations; and (3) that the respondent's employees
:are free to become or remain members of the United Rubber Workers, (C I. 0.),
and that the respondent will not discriminate against any employee because
,of his membership or activity on behalf of that or any other labor organization;
(d) Notify the Regional Director for the Twenty-first Region in writing
within ten (10) days from the receipt of this Intermediate Report what steps
I the respondent has taken to comply herewith
It is further recommended that the complaint be dismissed insofar as it
alleges that the respondent discriminated in regard to the hire and tenure of
employment of Margaret LaDuke within the meaning of Section 8 (3).
90 See footnote 35, supra.
REEVES RUBBER, INC. 387
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
-As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 20, 1943, any
party or counsel for the Board may within fifteen (15) days from the date of
the entry of the order transferring the case to the Board, pursuant to Section 32
of Article II of said Rules and Regulations, file with the Board, Rochambeau
Building, Washington, D. C, an original and four copies of a statement in
writing setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding (including rulings upon all motions or
-objections) as lie relies upon, together with the original and four copies of a
brief in support thereof Immediately upon the filing of such statement or
exceptions and/or brief, the party or counsel for the Board filing the same
shall serve a copy thereof upon each of the parties and shall file a copy with
the Regional Director. As further provided in said Section 33, should any
party desire permission to argue orally before the Board, request therefor must
be made in writing to the Board within ten (10) days from the date of the
,order transferring the case to the Board.
WILLIAM J. ISAACSON,
Trial Examiner.
Dated September 16, 1944.