The Kelly-Springfield Tire Co.

National Labor Relations Board - Board Decisions

Mar 31, 1938

6 N.L.R.B. 325 (N.L.R.B. 1938)

In the Matter of THE KELLY-SPRINGFIELD TIRE COMPANY and UNITED
RUBBER WORKERS OF AMERICA, LOCAL No. 26 AND JAMES M. REED AND
MINNIE RANK
Case No. C-315.-Decided March 31, 1938
Rubber Industry-Interference, Restraint, or Coercion: threatening discharge
for union activity-Discrimination as to Tenure of Employment : furloughing and
discharging employees for union activity ; failure or refusal to recall to work,
or offer employment to, active union members furloughed by trustees in reorgani-
zation proceedings of predecessor corporation , at time when production arose and
positions became available, and employing men junior in service or without,prior
service to fill same ; finding that successor corporation, under circumstances,
assumed position of predecessor towards said furloughed employees-Discremina-
tion as to Hire and Condition of Employment: union employees furloughed by
trustees in reorganization proceedings , and not recalled by successor corporation
when positions became available because of rise in production-Strike Settlement
Relating to Unfair Labor Practices: no bar to order where not performed by
company or made during pendency of proceedings-Regular and Substantially
Equivalent Employment: in absence of strong evidence showing, desire of em-
ployee for reinstatement controlling-Company-Dominated Union: stipulation to
disestablish as representative-Reinstatement Ordered: employees discrimina-
torily furloughed or discharged, to former positions ; employees furloughed by
predecessor, to positions formerly held with predecessor and in which successor
failed or refused to employ them ; employee whose work changed during pro-
ceedings before Board, to position the same or substantially equivalent to that
formerly held-Back Pay: awarded.
Mr. Jacob Blum and Mr. Reeves R. Hilton, for the Board.
Mr. William C. Walsh, of Cumberland, Md., for the respondent.
Mr. Estel C. Kelley, of Cumberland, Md., and Mr. Anthony Wayne
Smith, of Washington, D. C., for the Union.
Mr. Stanley J. Morris, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by United Rubber Workers of America,
Local No. 26, herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the Fifth
Region (Baltimore, Maryland) issued a complaint, dated August 11,
325
326 NATIONAL LABOR RELATIONS BOARD
1936, against The Kelly-Springfield Tire Company, a Maryland cor-
poration, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1), (2), and (3) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint, accompanied by notice
of hearing, were duly served on the respondent and the Union.
The complaint charged in substance that the respondent dominated
the formation of a labor organization of its employees, known as The
Kelly-Springfield Employees Protective Association, Inc., herein
called the Association, interfered with the administration of its af-
fairs, and contributed financial and other support to it; that the re-
spondent discriminated in regard to the hire and tenure of employ-
ment of 36 persons, named in the complaint, to discourage member-
ship in the Union; and that by these and other acts and conduct, inter-
fered with, restrained, and coerced its employees in the exercise of
their right to self-organization and to engage in concerted activities
for their mutual aid and protection. On August 5, 1937, the respond-
ent filed its answer traversing the complaint and making certain alle-
gations by way of affirmative defense.
Pursuant to an amended notice, a hearing on the complaint was
held in Cumberland, Maryland, on August 12, 13, 14, and 17, 1937,
before W. P. Webb, the Trial Examiner duly designated by the Board.
The respondent and the Union appeared and were represented by
counsel. Full opportunity to be heard, to examine and cross-examine
witnesses, and to produce evidence bearing upon the issues, was af-
forded all parties. At the commencement of the hearing, counsel for
the Board, with the consent of the Regional Director for the Fifth
Region, moved to dismiss the charges of the complaint with respect
to 30 of the 36 persons therein alleged to have been discriminated
against by the respondent, on the ground that such persons had ob-
tained either satisfactory reemployment with the respondent or regu-
lar and substantially equivalent employment elsewhere.' The Trial
Examiner granted the motion, and his ruling is here affirmed. Evi-
dence was then adduced upon the issues relating to the alleged dis-
crimination against the six remaining persons : Bernard Heishman,
Edward Kyle, John Davies, Albert Starkey, Charles Eline, and James
Reed. A stipulation, more particularly described hereinafter, entered
into on behalf of the respondent and the Board, was taken by the
' The persons with respect to whom the charges thus were dismissed are : J Al. Albright,
Dave Allender, Paul Amtower, H L Bohn, W IT. Chapman, Leonard Davies, John Dick,
Andrew Elsentiout, J R Fatkius Edward Fuzenbaker, 0 B Garland, Cecil Giavson,
James Holsinger, Albert Jones, Elbert Jones, Elsworth Lewis, George F Long, Jesse
Merull, Roy Mullen, Blair Pitchey, Minnie Rank, Bernard F Reed, Elsie Shines, Charles
Shriver, J. T Stallings, Robert Starkey, George Thorpe, Robert Warnick, John Williams,
Thomas Wilson
DECISIONS AND ORDERS 327
Trial Examiner in lieu of evidence on the issues concerning the Asso-
ciation. During the course of the hearing the Trial Examiner made
various rulings on the admission and exclusion of evidence, to some of
which rulings exceptions were made. He also granted motions pre-
sented -at the close of the hearing by counsel for the Board and the
respondent that the pleadings be conformed to the proof. The
Board has reviewed these rulings of the Trial Examiner and finds
that no prejudicial errors have been committed. The rulings are
hereby affirmed.
On November 24, 1937, the Trial Examiner filed an Intermediate
Report, copies of which were duly served on all parties, finding
that the respondent had committed unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (3) and Sec-
tion 2 (6) and (7) of the Act, and recommending that the respond-
ent cease and desist therefrom and offer the six above-named
persons full reinstatement as employees. Exceptions to the Inter-
mediate Report were thereafter filed with the Board by the re-
spondent, and a brief in support thereof submitted. On January
28, 1938, oral argument on the exceptions and record was had be-
fore the Board in Washington, D. C., by the respondent and the
Union. On that occasion counsel for the respondent orally moved
for leave to file as part of the record an affidavit by one Albert
Carlson, and copies of an amended plan of reorganization and order
directing distribution, of record in the District Court of the United
States for the District of Maryland in certain proceedings entitled
"In the Matter of The Kelly-Springfield Tire Company, Debtor,
Cause No. 8139." The motion is granted. Since the oral argument,
counsel for the respondent and the Board have agreed in writing
that a copy of a certain letter dated February 2, 1938, signed by
the respondent's employment manager and addressed to its counsel
may be filed in these proceedings. It is so ordered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is engaged in the manufacture, sale and distribu-
tion of automobile tires, tubes, rubber accessories, and specialties.
It owns and operates a manufacturing plant in Cumberland, Mary-
land, and maintains branches or warehouses in principal cities of
the country. It is a subsidiary of the Goodyear Tire and Rubber
Company of Akron, Ohio, a leading producer of tires in the United
States, which directly or through affiliates operates factories in sev-
eral of the States, Canada, Great Britain, Australia, Argentina, and
80618-38-von. vi-22
328 NATIONAL LABOR RELATIONS BOARD
Java. Substantially all of the raw materials which the respondent
uses at the Cumberland plant are brought into Maryland either from
other States or from outside the territorial limits of the United
States, and, in turn, 90 to 95 per cent of the finished product there
manufactured is shipped out of Maryland to branches, dealers, and
distributors located throughout the country. The respondent em-
ploys approximately 1,400 production employees in Cumberland,
and its monthly pay roll is around $180,000. In April 1937, at the
beginning of the annual peak season, it produced 100,000 tires.
H. THE UNION
United Rubber Workers of America, Local No. 26, is a labor organ-
ization drawing its membership from production employees at the
Cumberland plant. It is affiliated with the Committee for Industrial
Organization.2
III. THE UNFAIR LABOR PRACTICES
A. Interference with,, and domination and support of, The Kelly-
Springfield Employees Protective Association, Inc.
At the hearing, counsel for the respondent, without admitting the
allegations of the complaint, agreed and consented in behalf of the
respondent to the entry of an order by the Board directing the re-
spondent to cease and desist from recognizing the Association as a
representative or agent of its employees, or of any unit of its em-
ployees, for the purpose of collective bargaining, and to disestablish
the Association as such representative or agent. It appears that the
Association is defunct and has been so for some time. It was there-
fore within the discretion of the Trial Examiner to rule, as he did,
that no evidence need be taken with respect to the allegations of the
complaint concerning the Association.
B. Discrimination in regard to hire and tenure of employment and
condition of employment
1. Background of the discrimination
Prior to July 5, 1935, the Cumberland plant was owned by The
Kell r-Springfield Tire Company, a New Jersey corporation. In
2 The Union was first chartered some years ago as a federal labor union by the American
Federation of Labor, under the name Rubber Workers Union , No. 19007 About October
1935, an international of rubber workers was organized, known as the United Rubber
Workers of America, which was admitted to membership as an affiliated international by
the American Federation of Labor Thereupon , the Union was chartered as a local under
its present name by the United Rubber Workers of America and relinquished its direct
affiliation with the American Federation of Labor. In 1936, the United Rubber Workers
of America affiliated itself with the Committee for Industrial Organization
DECISIONS AND ORDERS ° 329
March 1935, proceedings were initiated in the United States District
Court for Maryland at Baltimore, Maryland, to reorganize the cor-
poration under the provisions of Section 77B of the National Bank-
ruptcy Act, 11 U. S. C. A. 207. Edmund S. Burke, former president
of the company, and Thomas B. Finan were appointed trustees of
the estate of the debtor.
On April 3, 1935, the trustees furloughed from 400 to 600 em-
ployees. The lay-off was with the understanding that the men would
be recalled to work when needed. At a meeting shortly thereafter
held with a committee of the employees, Finan, Soulen, the plant
manager, and Harry Nelson, the employment manager, gave assur-
ances that the furloughed employees would promptly be recalled in
their order when jobs became available.
Bernard Heishman, Edward Kyle, and John Davies were among
the men furloughed. Heishman worked in the calender room; Kyle
and Davies in the curing department. At the hearing, Kyle and
Davies claimed that they had been furloughed out of turn because
of Union affiliation and activity., Kyle testified that he was fur-
loughed despite his being the oldest employee in service at his kind of
work. Davies testified that three non-union men his junior in service
were retained in positions similar to his, and further testified that
the foremen in his department had jested about his membership in
the Union and had said that it would accomplish nothing. While
this testimony is uncontroverted, it relates to acts and events occurring
prior to the effective date of the Act, and, therefore, affords no basis
for any charge of unfair labor practice under the statute. The evi-
dence has materiality and bearing, however, as tending to explain later
conduct of the management of the respondent with respect to the two
men.,
On July 5, 1935, the District Court at Baltimore confirmed by
final order a plan of reorganization for The Kelly-Springfield Tire
Company, the New Jersey corporation. On July 22 the respondent
was organized under the laws of Maryland. Thereupon, pursuant to
the plan, the respondent transferred its entire stock to a wholly owned
subsidiary of the Goodyear Tire and Rubber Company, of Akron,
Ohio, and received certain cash and shares of Goodyear stock in
return. The cash and stock were delivered to the trustees for distribu-
tion among the creditors and stockholders of the debtor in discharge
of their claims, and title to the estate of the debtor, including the
Cumberland plant, was vested in the respondent. Burke and Finan,
the sole trustees, became and since have been two of the five directors
of the respondent, and Burke resumed and has since held his office as
3Jefery-Deti 3tt Insulator Co v National Labor Relations Board, 91 F . (2d) 134
,(C. C A, 4th), cert den . 301 U. S 731.
330 NATIONAL LABOR RELATIONS BOARD
president. The remaining three directors live in Akron, not Cumber-
land, and are concerned only with the finances of the respondent.
At the hearing, counsel for the respondent stated :
I want to acid that * * * the operation and management
of the Kelly Company is vested entirely in the local officers of
the Company here in Cumberland. The three members of the
Board who live out of Cumberland are financial men and are
concerned with the financing of the Company but not with the
operation of it: Mr. Burke and his associates here operate the
Company.
The supervisory personnel and supervision of the old company re-
mained the same. Various supervisory employees called to testify
by the respondent-Nelson, in charge of the labor department, Smith,
the division superintendent, Taylor, the foreman, and Yeager, the
supervisor-held their present positions prior to the reorganization.
In July and October 1935, a curtailment in production at the plant
occasioned some further furloughs reducing the number of employees
at work to 750. Albert Starkey, a bead builder in the bead room
was furloughed by the respondent in July.
2. Furlough of Eline
On January 17, 1936, Charles Eline, a worker at the stocking as-
sembly table in the bead room, was furloughed under the following
circumstances. He was one of the older employees and had worked
at the plant for 10 years. Eline had been very active in Union affairs.
He joined the Union in 1934 and had held office from time to time as
its vice president, treasurer, and member of the executive board: He
also was financial secretary and treasurer of the Central Labor Union,
an organization in Allegany County, Maryland. His principal activ-
ity arose in relation to his work as chairman of a grievance committee
which had been set up by the Union in his department to represent
the departmental employees in any grievances had with the manage-
ment. Eline testified that his duties as chairman of this committee
required that he be "very active * * * in trying to work for the
betterment of conditions in that department." About one week prior
to his furlough, Eline and the members of his committee were called
to the office of Delagrange, the production superintendent. In the
presence of Graham, their foreman, Delagrange said : "Eline, if you
don't quit your amateur detective work and snooping around and
gathering complaints you are going out the gate." Eline understood
that reference was being made to his Union activity as chairman of
the committee, and replied that he thought he had the right to rep-
resent employees the same as Delagrange, the management. A few
DECISIONS AND ORDERS 331
days, later, Graham called Eline, said that a man was going to, be
furloughed and added, "It is you." Eline protested that he consid-
ered the furlough unfair as there had been no complaints of his work,
and asked for the reason. Graham gave none, saying : "That is -all
there is to it." Eline was asked to break in another man for his job.
Shortly thereafter, during negotiations between the Union and the
respondent concerning the furlough, Nelson, the employment man-
ager, stated : "This detective business and snooping around has to
stun."
Throughout the succeeding period until October 1936, the respond-
ent failed or refused to reinstate Eline although repeated requests
for reemployment were made.
The evidence of the circumstances surrounding the furlough of
Eline stands uncontradicted and leaves little room for doubt that the
lay-off was the result of Eline's Union activity in conscientiously
representing the employees of his department in their complaints
against the respondent. It is evident that the respondent intended to
discourage the further handling of employee grievances through
Union committees. Eline's position as chairman, as well as his
importance in the Union generally, was well-known and his being
furloughed for such cause would carry the desired lesson. Dela-
grange, in warning Eline, made certain to do so in the presence of the
other members of the committee and their foreman. That the
respondent's attitude was expressed in colorful descriptive and epithet
made its purpose nonetheless clear. It proposed'to discourage the
committee procedure by discriminating against a Union member
engaged therein.4 The subsequent statement of Nelson affirmed this
intention.
It is common knowledge that the availability of means for adjust-
ing individual grievances through group representatives, and the
work carried on by such representatives, constitute an important
inducement to union affiliation. In late 1934 or early 1935, prior to
the reorganization, the Union had reached an understanding with the
management for the presentation of employee complaints through
Union grievance committees. In furloughing Eline on January 17,
because of his activity as chairman of such a committee, the respond-
ent struck at a vital Union activity, and by such discrimination as to
employment, discouraged membership in the Union within the mean-
ing of Section 8 (3) of the Act. The respondent's conduct likewise
interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed them by Section.7 of the Act.
4 As hereinafter shown, the respondent followed this policy by later discriminations as
to hire and tenure of employment.
332 NATIONAL LABOR RELATIONS BOARD
3. Respondent's failure to recall Heishman, Kyle, Davies, and
Starkey from furlough
From October 1935, until spring of 1936 , the number of employees
at work in the plant remained the ;same. In late March or early
April 1936, business increased, and during the course of the follow-
ing few months more than 900 men were added. In time, the total
number exceeded by 300 that prevailing before the furlough of
April 1935. Approximately 100 to 125 of the 900 were new men who
had never worked at the plant. The remainder comprised for the
most part persons who had been furloughed prior to the reorganiza-
tion. Nelson, the employment manager, testified that the respondent,
in considering at that time the reinstatement of workers to, and
their employment in, their former positions at the plant, recognized
the furloughs of the trustees. The evidence shows that 75 per cent
of the employees furloughed before the reorganization were returned
to the same, or practically the same, positions which they had held
at the time of their furlough, that approximately 15 per cent or more
were given different but equivalent positions, and that the remainder,
some 40 or 50 in number, accepted positions which were neither the
same nor equivalent.
The respondent failed or refused to recall to work, and offer em-
ployment to, 34 of the employees on furlough, the persons named in
the complaint issued by the Board. At that time, the Union had
only 318 members. Upon the charge of those persons that they were
being discriminated against in their hire or tenure of employment
or condition of employment because of Union affiliation and activity,
conversations were begun by representatives of the Union with the
respondent concerning each of the cases."
As already indicated, the allegations of discrimination with re-
spect to only 5 of these persons, namely, Heishman, Kyle, Davies,
Starkey, and Eline, are here presented," the charges with respect to
30 of the others having been dismissed by counsel for the Board on
the ground that they had obtained satisfactory employment with
the respondent or regular and substantially equivalent employment
elsewhere. Eline's case requires no further discussion; those of the
other four do.
6 John Geiss, then president of the Union, testified :
"Our major cases were employees who were bringing cases to us that claimed dis-
crimination . There had been lots of new men being hired in the plant, and put on jobs
where men had been furloughed with 8 to 10 years' seniority . They would bring cases
like that to us and we would take it up with the company, or a representative of the
company , and it seemed they had a blacklist, and every time we would bring a name up,
that name would go down on the blacklist."
6 The allegations of the complaint with respect to James Reed are considered separately
hereinafter
DECISIONS AND ORDERS 333
Heishman, Kyle, Davies, and Starkey had been active in the
Union for several years and their affiliation and Union activities
were well-known to the management. Starkey, together with Eline,
and one Amtower had constituted the Union grievance committee
in the bead room; Heishman, along with Reed and one Bantz, the
committee in the calender department. Arntower and Bantz are
among those with respect to whom the allegations of the complaint
were dismissed at the hearing because of their securing either rein-
statement or equivalent employment elsewhere. All of the four men
were old employees at the plant. Heishman had worked there 11
years; Kyle, 12 years; Davies, 12 years; and Starkey, 11 years.
Heishman and Starkey testified that there had been no complaints
about. their work. Kyle had been employed in the curing depart-
ment throughout his 12 years, and there is nothing to show that
Davies' work had not been competent.
In June 1936, Heishman learned that the respondent was employ-
ing, a second shift in the calender department. Fair, the second-
shift foreman, told Heishman in a chance meeting that his name
had been sent in for recall. Later in the month, when he was not
recalled, Heishman went to see Nelson about the matter. Nelson
said that he would speak with Taylor, the calender room foreman,
and ascertain what the difficulty was. The following day, Nelson told
Heishman that his job had been filled and that he "should have been
there." Heishman replied that the respondent, not he, knew when
the job was open, and also where to notify him. Heishman then
tried to secure an interview with H. W. (Hod) Smith, the general
superintendent, and upon being told that Smith was too busy, went
out to Smith's home one night to discuss the matter. Heishman
testified that Smith said : "Well, Irishman, I know what you have
come for. You want your job, don't you. Well you fellows when you
sat down in there on us that day thought you had us * * *. But
things have changed. Now I have got you * * *; and I am not
ready to take you back." The reference was to an occurrence in
December 1934, when the calender crew of ten had stopped work
because of a complaint about the spreading of work. The matter
had been taken up with the management at that time through Heish-
man's grievance committee and had been settled in a few hours.
Work was resumed the following day and nothing further about
the matter had been done by the management. Heishman pointed
out to Smith that he knew of one employee who had then been a
member of the crew, had been furloughed in April 1935, and since
had been recalled.
Smith was unable to attend the hearing but it was agreed that
had he been called, he would have denied the testimony of Heislunan
334 NATIONAL LABOR RELATIONS BOARD
as to the conversation had at Smith's home, and would have stated
that there had been "considerable conversation during the visit."
After the respondent failed to recall Kyle for work, Kyle made
no personal request for employment but left the matter to the con-
versations that were being had between the Union and the respondent
concerning the 34 cases . He felt that in view of his having been
furloughed out of turn because of his Union affiliation , it would
have been idle to have acted individually. During that period new
men were hired in the curing department and furloughed employees
of shorter service recalled and there employed . The precise date
when Kyle's position , was filled by another worker is not shown by the
respondent 's records although the time could not have been before
March 1936, when production first rose . On October 20, 1936, Nelson
told Kyle that his position had already been filled . Kyle further
testified that none in the plant since employed at his kind of work
had done that work longer than he had . It appears at the present
time that this work has changed in operation and is now being
performed along with other work by only one man on each shift.?
Davies had been employed in the curing department "curing air
bags. " At the time of his furlough , he was told by his foreman
that he would be notified and recalled when his job was open. On
June 30, 1936 , another worker who had been painting tires was
given Davies' job . Davies testified that he had made no request for
employment before then because he had been waiting to be notified
and recalled.
Sometime before June 1936, after learning that the respondent
was putting men to work in the pit and machine shops, Starkey
went to see Nelson about employment. He was told that no one
was being hired for the bead room where he had worked, but that
some soon would be, and that lie would be notified. Thereafter, on
two occasions Starkey learned that men younger in service than
he had been employed and , upon making inquiry of Nelson, was
merely told that none were being hired that day. The respondent
then recalled to work in the bead room all remaining furloughed
employees who had been employed, there but failed to recall the
members of the Union grievance committee of which Starkey was
one. New men were also hired in the bead room . Starkey again
vent to see Nelson and was told that "just a few girls " were being
hired. This occurred around June 1936 . Starkey asked , "Well, I
would like to know , Mr. Nelson , whether I have a job here or
whether I am going to get one here ?" Nelson replied, as testified
to by Starkey, "Well , it looks like you don't want to come back
here. You are running around on a committee hunting union mem-
There is such indication in the statement filed since the oral argument.
DECISIONS AND ORDERS 335
hers and interrupting our employees and intimidating and keeping
them out of bed." He also told Starkey that if Starkey would keep
his mouth shut, he would be reemployed. That was the last time
Starkey went to see Nelson.
Nelson, was a witness at the hearing. He denied that he had ever
in conversation with Starkey objected to the solicitation of union
memberships. However, he also testified that he may have told
Starkey not to interfere with the workmen at night by soliciting
memberships, although he, Nelson, did not so recall. He denied
that he had ever told Starkey that he could have his job if he kept
his mouth shut. However, he also testified that he had discussed
with Starkey "the things Starkey had complained about when he
was in the department," that at their last conversation, Starkey had
said that "he felt everything in the department was all right and
he had no complaint to make," that he, Nelson, then had said, "If
you feel that way about it and want to go back and accept condi-
tions as they are and have no complaint, I don't see any reason why
we can't put you back." Starkey testified that he had been active
on the grievance committee and had had to discuss complaints with
his foreman quite often.
It will serve no purpose to discuss at length the discrimination of
which the respondent was guilty in failing or refusing to return these
workers to their former positions because of their Union activity and
membership. The fact of discrimination is clear. At a time when
production at the plant had been restored, indeed expanded, and the
respondent had placed on its pay roll the hundreds of employees who
had been furloughed prior to the reorganization, giving 75 per cent of
such persons the same or practically the same positions which they
had held at the time of furlough, more than 15 per cent equivalent po-
sitions, and the remaining, other employment, Heishman, Kyle, and
Davies were denied their jobs. Although each of the three had
worked at the plant many years with due competency, when the jobs
which they had held and were awaiting again became open, other
persons younger in service or without prior service were given the
positions. Starkey was discriminated against when the respondent,
who had furloughed him, offered available work in the bead room to
younger men, and made his recall the subject of a condition unlawful
under the Act.
The respondent urges, however, that inasmuch as there was un-
certainty about seniority rules at the time of its recalling or employ-
ing, its failure to recall and employ Heishman, Kyle, Davies, and
Starkey was not discriminatory. We cannot agree that certainty of
seniority rules is a sine qua non of a finding of discriminatory failure
or refusal to employ. The presence or absence of such rules consti-
336 NATIONAL LABOR RELATIONS BOARD
tutes but one circumstance to be considered along with other facts
of the case.
Heishman and Starkey were members of their respective depart-
mental grievance committees. The respondent, in failing to recall
these two men, was merely following a policy which a few months
earlier it had enforced with equal vigor against Eline. What we
have said above in that connection is relevant here and requires no
repetition. When Heishman, after gaining no satisfaction at the
plant in his quest for his job, finally went to Smith's home, he was met
with marked animosity by Smith towards the Union men. That
Smith, had he been called, would have denied Heishman's version and
have testified instead that "considerable conversation" had been had,
can be given little weight, for Smith's version is not known. Nor did
Starkey fare much better when he finally was able to secure an ex-
pression from Nelson about the possibility of his employment. While
Nelson denied that he had told Starkey that he, Starkey, could have
his job back if he kept his mouth shut, Nelson's other testimony to
the effect that he had offered Starkey a job provided he would be
willing to accept conditions and would have no complaints, was in
fact a confirmation of Starkey's testimony. To a worker on a griev-
ance committee, the implication in Nelson's offer was unmistakable.
Starkey's further testimony that Nelson had objected to the solicita-
tion of members invites belief despite Nelson's lack of recollection
thereof. Such objection constituted an unfair labor practice.
Kyle and Davies, for reasons heretofore mentioned, did not confer
personally with their superiors about being employed in their former
positions. After it became evident that they were not being recalled,
their 'cases were included among the 34 taken up by the Union repre-
sentatives in ' the conversations had with the respondent. Kyle and
Davies were strong Union members from the early days of the Union,
and testified to having engaged in soliciting memberships. The dis-
crimination practiced against them by the respondent must be inter-
preted as a further expression of a perpetuated unfriendly attitude
which the management entertained towards them because of their
Union sympathies, an attitude which first exhibited itself in a serious
way when the men were furloughed by the trustees. In this connec-
tion it should be noted that the management and supervisory person-
nel at the time of the recall and reemployment were the same as those
which had been in charge of affairs during and prior to the reor-
ganization, and Nelson testified affirmatively that in recalling the
furloughed employees, the foremen were consulted.
We find that the respondent by failing or refusing to recall and
employ Heishman, Kyle, Davies, and Starkey, under the circum-
stances above set forth, discriminated in regard to hire, tenure of
DECISIONS AND ORDERS 337
employment, and condition of employment, thereby discouraging
membership in a labor organization. °
The respondent earnestly contends that it cannot be held to have
committed an unfair labor practice in not recalling and employing
Heishman, Kyle, and Davies for the reason that they were never em-
ployees of the respondent. It argues that these men were furloughed
not by the respondent but by the trustees; that by no act done or
order entered in the reorganization' proceedings was any obligation
imposed upon it to reinstate employees furloughed by the trustees,
in the event production arose; that the "National Labor Relations
Act does not place any obligation on an employer to give employment
to men who have never worked for that employer"; and, hence, its
failure to employ cannot be construed as an unfair labor practice.
There can be no serious dispute that the Act is not intended to in-
terfere with the normal exercise of the right of the employer to
select its employees or to discharge them. However, if the employer
discriminates either as to hire or tenure of employment or condition
of employment because of organizational affiliation and activity,
thereby discouraging membership in a labor organization, he has
committed an unfair labor practice within the meaning of Section
8 (3) of the Act. It is not essential in all cases to a finding of
unfair labor practice under this section of the statute that the status
of an employee be held by the person against whom the' alleged dis-
crimination has been directed, for the provision thereof has express
application to a discrimination as to hire. And where the charge
of discrimination does relate to hire, the fact that an employee status
has not existed is wholly without probative bearing on the issue
whether an unlawful discrimination has occurred. Moreover, the
record shows, and we so find, that upon the completion of the reor-
ganization in July 1935, and thereafter, the respondent through its
officers and agents did intend to, and did, assume the position there-
tofore occupied by its predecessor corporation, in reorganization,
towards the employees who had been furloughed, and did undertake
thereby to reinstate such employees to, and employ them in, their
former positions when the same became available; that these em-
ployees so understood and acquiesced in the assumption of the em-
ployer relationship towards them by the respondent and in its con-
tinuation of their employee status. The fact that the respondent in
taking over the plant retained the management and supervisory
personnel of the predecessor, gave employment to all persons work-
ing at the plant, and failed to give any notice in the 9 months suc-
ceeding the reorganization that it was not assuming the recall, if
production arose, of the hundreds of employees who had been fur-
loughed during the reorganization proceedings and were awaiting
338 NATIONAL LABOR RELATIONS BOARD
such recall ; together with the further fact that the respondent did
recall those employees and when doing so did recognize their em-
ployee status ; and, further, that at the time of the strike settlement,
hereinafter mentioned, the respondent drew no distinction between
the employees whom it had furloughed and those furloughed by the
predecessor, confirms this finding.
4. The discharge of Reed
On June 1, 1936, James Reed, an employee at the plant, was dis-
charged by the respondent. He was called to the employment office
and told that he "no longer fitted into the picture." No reason was
assigned or explanation given. The Union and Reed assert that he
was discharged because of his Union activity and membership. The
respondent contends that it discharged him for "proper causes." A
discussion of the matter was had later in June 1936 at Akron, Ohio,
by Reed and officers of the United Rubber Workers of America,
with Shisser, the vice president of the Goodyear Tire and Rubber
Company. Although several hours were spent in reviewing the claim
of the Union officers that Reed, and the other employees named in
the complaint, had been discriminated against by the respondent,
Slusser was obdurate. He stated that lie "did not believe In the
Wagner Act or any other acts passed by the United States Govern-
ment; that they were going to operate those plants as they seen fit."
Reed was probably the most important man in the Union. He
was its first permanent president. When the Union and management
reached their understanding for the presentation of employee com-
plaints through the Union grievance committees, Reed became chair-
man both of the plant grievance committee and of his departmental
grievance committee in the calender room. In these positions he
proved very active in securing adjustments of complaints. He sat
with the management in negotiating at least one serious labor dispute.
In 1934, when 16 employees were discharged at the plant allegedly
for organizational activity, he was made chairman of the employee
committee appointed to handle the matter. This particular contro-
versy was settled by negotiation with the management after a charge
had been filed with the Regional Labor Board in Pittsburgh.
The evidence admitted on behalf of the respondent related to Reed's
alleged traits of personality, conduct, and competency in the period
commencing some 2 years preceding the discharge, and before the
reorganization. The respondent's principal witnesses in this branch
of the case, namely Yeager, the supervisor of the calender train,
Taylor, the foreman of the calender room, and Smith, the division
superintendent, all were in accord that prior to that time, the
respondent had no cause for complaint either about Reed or his work.
DECISIONS AND ORDERS 339
With respect to Reed's alleged behavior and conduct, Yeager testi-
fied that Reed was "insubordinate"; that lie acted "very important"
and "independent"; that Reed's attitude vfas not "very good" ; that
he "didn't take much interest in his work" ; that he was "one of the
worst men I have ever had work under me"; that when Reed would
be told that his feeding was causing too much "scrap" or waste, he
would say "Everything is all right and I don't care," and after cor-
recting himself, would revert to his own manner of feeding. Taylor,
the foreman, testified, that Reed was "antagonistic to his superiors"
although not so much so to Taylor ; that Reed said he had a hand
in running the department as well as the management; that he was
"boisterous and very important," "looked down on everybody else
around" and was the "leader of the whole gang"; that he disregarded
orders. Smith, the superintendent, testified that Reed "got very un-
ruly"; he "assumed an attitude that he was superior to his supervisors
and foremen"; he did things "which seemed to us to tantalize and
belittle his superiors"; was "constantly complaining"; "was the most
tantalizing, provoking individual I have ever come into contact
with"; that on January 8, 1935, when Smith discussed the matter
with Reed and told him not to return to work unless lie changed his
ways, Reed had said "I will be back"; that on March 19, 1935, when
Smith told a group of employees presenting a grievance that he,
Smith, thought the respondent was being fair, Reed had said, "It is
a damn lie." Christner, a fabric supervisor, testified that about a
year before the discharge, Reed put a piece of fabric on the witness'
shoulder after the witness had told Reed not to cut out a sample, and
that Reed thereafter put pieces of the fabric on the witness' shoulder
about 75 times. Turner, a non-union worker under Christner, testi-
fied that lie sa%v Reed place rubber on Christner's shoulders 10 or 12
times. Several of the respondent's witnesses testified that Reed cursed
the respondent and referred to its president and plant manager as
"sons of bitches."
Reed denied that he had disregarded his foreman's instructions;
admitted that lie cursed the respondent but testified that other rubber
workers at the plant had done likewise; and denied that he had called
the president and plant manager "sons of bitches." Lewis, the head
calender operator, a Union member'and former officer, testified that lie
had worked with Reed for many years on the calender train ; that
Reed was not boisterous; that lie was agreeable and well-liked by the
men; that Reed was no more argumentative than anyone else.
Yeager, the supervisor, and Smith, the superintendent, in their
testimony for the respondent, gave the following instances of Reed's
complaint-making. Yeager testified that Reed had complained that
officials of the respondent were getting high salaries and the working-
340 NATIONAL LABOR RELATIONS BOARD
men not enough. Smith testified that Reed had complained in late
1935 about the method followed by the respondent in paying its work--
men, that is, of- paying them on their last day of work by checks
bearing the date of the succeeding day when the wages became due;
that Reed had said, "It is a hell of a company that will give a check
and then ask you to hold it until the next day to be cashed" ; that
Reed had complained of the procedure followed by the respondent in
spreading work; that on another occasion, the calender room com-
mittee, including Reed, had presented a grievance dealing with the,
earnings of the operators and had requested the respondent for their,
wage rates. Smith added that when the information was refused
Reed had said, "I will get it anyway." Both Yeager and Smith tes-
tified that at the time the N. R: A. was being enforced, Reed had
complained that Yeager was "chiseling."
Reed testified that it was his duty as chairman of the plant and
departmental committees to present the complaints of the respond-
ent's employees; that the grievances over the spreading of work and
Yeager's chiseling were regular employee grievances which arose dur-
ing the period ; that both were adjusted by the management and that
Yeager's chiseling had been ordered stopped. With respect to the
wage rates, he testified that the committee had requested the informa-
tion because of an employee complaint involving an alleged wage
disparity among the operators, and that Smith, in denying the request,
had said that the rates were none of Reed's "damn business."
Reed worked at the plant as a *feeder on the calender train and
relief operator. He had been employed at the plant for 15 years.
It was his task, as feeder, to feed the fabric into the machine and
then to follow it as it passed along through the three units of the
calender. After the rubber coatings were applied to the fabric, he
was required to cut out any rough edges which appeared, in order
to enable the fabric to pass readily through. He was furnished with
shears for that purpose.
The respondent's witnesses testified at length concerning Reed's
work. With few exceptions, this testimony was related to no spe-
cific dates though it referred in a general way to the two-year period
preceding the discharge. Yeager testified that the work was "care-
less"; Taylor, that it was "careless and sloppy"; Smith, that Reed
"just did enough to get by so we could not find justification to dis-
miss him." The three witnesses testified that Reed's work resulted
in an unnecessarily large amount of "splices"; and, together with
Christner and Bible, an employee, testified that Reed cut out more
stock than was required, or cut stock when or where there was no
occasion to do so. Yeager testified that Reed would not feed a flat
feed but would roll it tight; Taylor and Smith, that he fed too,
quickly. Taylor testified that in the week preceding the discharge
DECISIONS AND ORDERS 341
there occurred five "wrecks", which he deemed an unusual number
of such stoppages, and that in his opinion three were attributable
to Reed. The witnesses testified that splices, fast feeding, unneces-
sary cutting, and wrecks resulted in "scrap" or wasted material.
However, Taylor conceded that reduction in the amount of scrap
had been a problem of the respondent for years, and would, continue
to be "our big job." He further admitted that wrecks sometimes
were unavoidably caused by "wet splices," and Smith testified that
splices were sometimes the result of defective rubber.
Reed testified that his work required him to cut stock; that the
occurrence of scrap principally depended on the quality of the rub-
ber and that defective material would produce scrap. He further
testified that it was an important part of the business "to keep con-
stant touch to hold down scrap," that since he was "the last man that
handled [the material, he] * * * would have to take the brunt
for that [scrap]"; that Yeager blamed him for occurrences beyond
his control and that he, Reed, feeling aggrieved, had with the consent'
of the Union, written a letter to the respondent about it. Lewis, the
head operator on the calender, testified that Reed did his operation on
the machine very successfully; that he had no difficulty with the
machine or his work; that the department had no unusual amount of
scrap when Reed was there; that difficulties occur many times with
splices regardless of who is feeding; that Reed was as good a worker
as the man now doing his work, in fact was more experienced and
better; and that the witness would prefer Reed on the machine to the
present worker.
The respondent's witnesses testified to a miscellany of other acts of
Reed. Yeager testified that Reed went to other parts of the calender
room on five occasions and interrupted work; Buckle, another super-
visor, and Smith, that Reed smoked in violation of a company rule;
Buckle, that Reed "dominated" the employees and told them not to
do too much for the respondent; Smith, Taylor and, Bible, that Reed
gave "Facist" salutes ; and Taylor and Bible, that Reed had said that
the country needed a Hitler to straighten it out. _
Lewis testified that Reed did not dominate the men; was agreeable
to them; that the witness never saw Reed smoke nor interrupt his
duties to smoke nor to talk to other men in the department. Reed
testified that he was not quite sure what was meant by his giving a
"Facist" salute; that he never said the country needed a Hitler "or
I would not belong to a labor union if I did."
The discharge of Reed was authorized by Soulen, the plant man-
ager ; H. W. (Hod) Smith, the general superintendent, gave the
actual notice. Both Soulen and H. W. Smith have since terminated
their employment with the respondent, and neither testified at the
hearing. Taylor, the foreman, testified that he had no authority to
342 NATIONAL LABOR RELATION S BOARD
discharge; that he understood that the cause of Reed's discharge was
"principally defective workmanship"; that the respondent had not
discharged Reed before June 1, 1936, because it "did not want to
create any labor trouble." Smith, the division superintendent, testi-
fied that Reed had not been discharged earlier because he "just did
enough to get by so we could not find justification to dismiss him."
He further testified, at greater length, that "the reason, we put up
with all that we did put up with was because we realized the precarious
financial position of the company; we realized that if we had any
labor trouble that it would be harder for the company to be reor-
ganized or sold, as the case might be, and we did everything in our
power to get along with this particular- workman. * * * we
realized that anything we did would be *called discrimination"; that
the "last straw" occurred when Baker, a person identified as an
employee not in Reed's department but in another, told Smith some
4 or 5 days before the discharge, "You have no idea how much
trouble this man is making for this company throughout your entire
organization, and I don't see why the company could possibly put
up with such an individual." What "trouble" was meant does not
appear.
Reed, as heretofore stated, was given no reason for his discharge at
the time it occurred. He testified, however, that two incidents oc-
curring within the 6 weeks preceding thereto may have had a bear-
ing. Both involved employee complaints taken up by the grievance
committee with the management. The first was an objection to the
method used by the respondent in collecting community funds from
the employees. Reed testified that he, personally, had been com-
pelled to donate one per cent of his salary in a single year. The sec-
ond dealt with the matter of disparity in wages among operators,
hereinabove mentioned.
If the respondent discharged Reed on June 1, 1936, because of
his organizational activity and affiliation, it committed an unfair
labor practice whatever "proper causes" may then have existed for
terminating his employment. While proof of the presence of proper
causes at the time of discharge may have relevancy and circum-
stantial bearing in explaining what otherwise might appear as a
discriminatory discharge, such proof is not conclusive. The issue
is whether such causes in fact induced the discharge or whether they
are but a justification of it in retrospect. On the other hand, it
is equally true that a failure to show proper causes, indeed any cause,
for the discharge does not necessarily establish an unfair labor
practice.
Reed's importance to the Union cannot be gainsaid. The repre-
sentation of hundreds of employees in their complaints against the
DECISIONS AND ORDERS 343
management rested in the grievance committees which he headed.
That he took his duties seriously and discharged them successfully
are amply shown. We are not prone to give much weight to the
considerable use made by the respondent's witnesses of generalized
characterizations in testifying to Reed's behavior. An employee may
"act important" or be "tantalizing" or appear "dominating" in the
opinion of a supervisor one or two stations above the rank ; yet be
an agreeable, fearless leader to his fellow union workers.
Nor are we satisfied that Reed's assumption of Union responsibility
thereafter reflected itself in poor workmanship. The record does
not establish the contention of the respondent that Reed, after per-
forming competently in his department for 10 years, became an in-
efficient worker. Reed's position on the calender train placed him in
the midst of the continuing struggle waged by the respondent and
its supervisors against unavoidable scrap. Reed, very evidently
felt the problem keenly for he was led to invent a device to reduce
the waste. We believe that Lewis, the chief operator on the machine,
was accurate in his observation that there was no unusual amount
of scrap when Reed was there, and it is significant that Lewis ex-
pressed a preference at the hearing to having Reed now do the feed-
ing rather than the employee presently performing the work.
There is little ground for believing that the respondent, after fur-
loughing Eline, refusing to employ Heishman, and bargaining with
Starkey about his recall, within the 6 months preceding Reed's dis-
charge, because of their grievance committee work, was ready to
accord Reed immunity. Reed's testimony that in the 6 weeks pre-
ceding his discharge the management had taken a hostile stand to-
wards the two grievance committee complaints, has much bearing
upon the issue. The failure of the respondent to tell Reed at the
time of his discharge of any of the many causes here assigned and
the attitude of Slusser when the matter was discussed at Akron
support the conclusion reached. And there is consistency to be
found in the fact that the respondent's witnesses objected to the
complaints made by Reed heretofore set forth. The explanations
given by Taylor and particularly by Smith for the failure of the
respondent to discharge Reed sometime prior to June 1, 1936, are
not very persuasive. Smith's testimony that "the reason we put up
with all we did put up with was because * * * we realized that
if we had any labor trouble it would be harder for the company to
be reorganized or sold, as the case might be," hardly supports a
discharge which occurred one year after the reorganization and
sale had taken place. We observe that the amended plan for reor-
ganization providing for a sale of the plant to the Goodyear interests
was issued in June 1935, whereas Reed's discharge occurred in June
1936. Nor could the fears allegedly entertained by the respondent
80618-38-vor,, vi-23
344 NATIONAL LABOR RELATIONS BOARD
of labor trouble have been very real. In the three months prior to
June 1, 1936 , it refused employment to 34 furloughed employees,
including grievance committee members , although Union interces-
sion was inevitable.
We sustain the finding of the Trial Examiner that the respondent
in discharging Reed, committed an unfair labor practice within the
meaning of Section 8 ( 1) and ( 3)- of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the business of the respondent de-
scribed 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 com-
merce and the free flow of commerce.
V. THE STRIKE SETTLEMENT AND THE RESPONDENT 'S OFFER OF EMPLOY-
MENT TO HEISIIMAN , KYLE, DAVIES , STARKEY AND ELINE
1. The strike and settlement agreement
On July 15, 1936, the Union filed its charge in these proceedings,
and on August 11, 1936, the complaint issued. On August 18, the
respondent instituted a suit in the United States District Court for
the District of Columbia to enjoin the hearing on the complaint
for the alleged reason that the National Labor Relations Act was
unconstitutional . On the same day, as a consequence thereof, the
hearing on the complaint was adjourned indefinitely.- On August
22, the Union called a strike at the plant, and a few days later the
plant closed. The causes for the strike were the same various griev-
ances alleged in the complaint. Reed testified that the institution of
the suit precipitated the strike.
On September 1 representatives of the respondent and the Union
reached a strike settlement. A memorandum of its terms, prepared
at the time of the settlement but -unsigned by the parties, and there-
after confirmed by the employees at an open meeting, provided,
in part :
(1) The company [respondent] has agreed to reemploy with-
out discrimination certain employees who have heretofore been
classified as "furloughed."
It is clear that in referring to "certain employees who have here-
tofore been classified as `furloughed ," no distinction was intended
to be drawn between persons employed at the plant prior to the re-
organization and those working subsequently. The representatives
DECISIONS AND ORDERS 345
of the respondent made no such differentiation during the negotia-
tions. Also, whether such reference included all of the persons
:lamed in the complaint, apart from Reed and one Rank, or only
a portion of them, need not be determined, for the respondent ac-
tually offered employment to all such persons, under the settlement
agreement.
The representatives who negotiated the settlement testified at the
hearing concerning the agreement reached. In certain respects their
testimony conflicted. Burke, one of the respondent's representatives
and its president, testified that no agreement was had with respect
to whether the furloughed employees who were to be employed were
to be reinstated to the positions which they had held at the time of
their furlough, nor with respect to whether if such reinstatement
proved infeasible they were to be given positions paying an equiva-
lent wage. On the other hand, Senator Kimble, one of the Union
representatives, a State senator, formerly director in Maryland for
the Committee for Industrial Organization, testified that the re-
spondent had agreed "to return all the employees back to their
original positions, or to positions that would compensate them the
same amount of pay"; that during the negotiations, Burke, himself,
after explaining that the respondent "could not agree to reinstate
every employee back in his original position, if it had been filled
by another employee, because it might interfere with production,
and so forth," had stated that "the company guaranteed very ex-
plicitly that they [furloughed employees] would receive the same
compensation." Burke testified that the respondent undeistood that`
"if it was at all possible we [the respondent] would try to give
them work and compensation as near their former 'rate as possible."
We find that it was the understanding and agreement that each
of the furloughed employees was to be reemployed without discrim-
ination, that is, that each was to be employed in his or her former
position, or if that were impracticable, to be given substantially
equivalent employment. Prior to and at the time of the settlement,
it had been the complaint of the employees, and the principal cause=
of the strike, that they had not been offered, or had been refused,
employment when hundreds of others in like position had.8 The
language of the settlement agreement, in providing that the fur-
loughed employees were to be reemployed without discrimination,
must be interpreted in the light of surrounding circumstances if, in-
deed, these words have not already acquired so certain a meaning in
the field of industrial relations as to admit of no such proof in aid
8 As pointed out, of a total of 800 employees furloughed before the reorganization and
recalled by the respondent , "approximately 75 per cent * * * got the sane or
practically the same positions , * * * 15 per cent or more were given different but
equivalent positions , and the remainder accepted positions " otherwise
346 NATIONAL LABOR RELATIONS BOARD
of their interpretation. The furloughed employees were to be em-
ployed without any less favor because of their Union activity and
membership than had been shown those in similar position whom the
respondent already had recalled.
The respondent contends that it was agreed at the settlement nego-
tiations that Reed was not to bd reemployed by it. There is no evi-
dence in the record supporting such contention. The Union repre-
sentatives testified that they had understood that Reed's case would
be the subject of further negotiations with the respondent within 90
days after the settlement was approved. The respondent's representa-
tives denied that any such understanding had been given. We find
that no agreement was entered into at the time of the settlement for
the reemployment of Reed or for any other disposition of his claim
to reinstatement. It is immaterial what understanding, if any, was
had concerning future negotiations, and none in fact ever occurred.
2. Respondent's offer of employment in October 1936, to Heishman,
Kyle, Davies, Starkey, and Eline, and the arrangement with Heish,=
man in February 1937
In October 1936, Nelson notified Heishman, Kyle, Davies, Starkey,
and Eline that they could return to work. Heishman, who at the
time of his furlough had worked in the calender room as a millman
and part-time operator at a wage rate of 92 cents an hour, was offered
a job in the "black mill" at 40 cents an hour. The black mill was a
,separate building where lamp black and rubber were mixed, and
the work there was very dirty. Kyle, who had been employed in
the curing department curing tires at a wage rate of 621/2 cents an
hour, was offered a job on the sewing machine at 35 cents an hour.
Davies, who had been employed in the same department curing air
bags at a wage rate of about 4 dollars a day, was offered a position in
the millroom at 35 cents an hour. Starkey, who had been employed
as a beader in the bead room at a wage rate of 51 cents an hour, was
offered a job as a tire builder at 35 cents an hour. Eline, who had
worked at the stocking assembly room in the bead room at a wage
rate of 45 cents an hour, was offered a job in the accessory department
at 35 cents an hour. All of the men remonstrated because of the
low rate of, and their unfamiliarity with, the work tendered, and
requested reinstatement to their former positions. We find that the
respondent clearly did not offer these men employment substantially
equivalent in wage or kind to that which they had had at the time
of their respective furloughs.
Heishman refused to accept the job after Nelson told him that he
could not be transferred to the calender department should a vacancy
there occur. Nelson denied telling Heishman that he could not be
DECISIONS AND ORDERS 347
transferred. However, Heishman was corroborated by an employee
who happened to overhear Nelson's statement. Some time later he
was offered employment in the millroom, which likewise was not
substantially equivalent to his former position and which he refused.
Kyle said he would take the new job only under protest, and refused
it when Nelson would not assent. Starkey likewise said he would
accept under protest, signed an employment card, but then notified
the respondent the following day that he had decided not to take
the position. Starkey has had employment since August 1936 as a
dye carrier with the Celanese Corporation in Cumberland, where he
has been earning 25 dollars a week. Eline accepted the position in
the accessory department because he was told there was no vacancy
in the bead room.
Davies, under economic duress, decided to accept the job offered.
He submitted to a routine physical examination by the respondent's
doctor, and it appeared that he had a small right hernia. Nelson
indicated that in that circumstance there could be no employment.
Davies, who had had no knowledge theretofore, of his condition went
to see his own physician, Dr. Van Omer, who told him that he had
,no hernia. He thereafter was examined by Drs. Hyman and Gracie
who found a slight right hernia, and Dr. Van Omer upon a re-
examination, concurred. Dr. Hyman, a specialist in hernia cases,
reported :
In view of the fact that Mr. Davies has done quite heavy work
for a long period of time, without even knowing that he had
this slight change, I feel that it is likely that he may go on
working for many years without further trouble.
At the time of the examination made by Dr. Hyman, Davies had
been employed as a stone mason doing much heavier work than would
be required in the position in which he had been employed at the
time of his furlough.
We already have found that the settlement agreement required the
respondent to employ the furloughed employees in their former posi-
tions or offer them employment substantially equivalent thereto. We
also have found that the respondent in thereafter offering the five
men employment did not offer work which was equivalent. Accord-
ingly, in view of the respondent's failure to perform substantially
its undertaking in this respect, we find that the agreement constituted
no bar to an order directing the respondent not only to cease and
desist but to offer employment and reinstatement as hereinafter pro-
vided. Moreover, we have held that where no member or representa-
tive of the Board has participated in an agreement involving in
whole or in part the compromise and settlement of charges of unfair
labor practices pending before the Board, the Board is not concluded
348 NATIONAL LABOR RELATIONS BOARD
by such an agreement from determining, in its own discretion,
whether under the circumstances of the case it is necessary in order
to effectuate the purposes and policy of the Act, to refuse to withhold
action on account of such agreement.-9
With respect to Davies, the respondent, in the brief which it sub-
mitted, assumed the position that the Board was without authority
to order an offer of employment and reinstatement to him for the rea-
son that under Section 36 of the Workmen's Compensation Law of
Maryland, it appeared that "while ordinarily compensation cannot
be claimed for a pre-existing hernia, nevertheless, if, as the result of
an accidental injury, such hernia becomes so strangulated that an
immediate operation is necessary, compensation can be claimed for it,
and * * * if such operation results in death, the employer would
be responsible for the Five Thousand Dollars ($5,000.00) paid in
death cases, and would, in any event, be liable for the cost of the opera-
tion and the compensation payable for the time lost." (Annotated
Code of Maryland, Article 101, sec. 36.) At the oral argument counsel
for the respondent was interrogated as to whether or not it was true
that the respondent had insured all of its compensation risks, includ-
ing such risk as might be involved in Davies' case, in the manner re-
quired by the State compensation law. An officer of the respondent
who attended the hearing, replied, at the request of the respondent's
counsel, that the respondent does carry and has carried such insura°nce,
that what risk may exist in Davies' condition was covered by such
insurance, that his condition would have no effect upon the amount of
premium paid by the respondent for such insurance save that in the
event a compensation payment actually had to be made in the future
to Davies or his beneficiaries, such compensation payment might affect
the amount of premiums thereafter payable inasmuch as such pre-
miums are ordinarily determined upon an experience basis.
We see little need for following the respondent in its contention
that the beneficent provisions of the State compensation law have
intervened between Davies and what redress may be accorded him
under the Act. We have found that the respondent discriminated
against him when on June 30, 1936, it failed to recall him from fur-
lough and gave his job to another employee. There is no showing,
if material, that at that time Davies had a hernia. The facts upon'
which to base an order directing an offer of employment and reinstate-
ment had then accrued; and Davies, in the absence of any supervening
and controlling event requiring otherwise, may be restored to the posi-
tion to which he would be entitled. We find no occasion for 'staying
the remedy in the existence, per se, of Davies' hernia, for it will afford
e Matter of Ingram Manufacturing Company and Textile Workers organizing Committee,
Cases Nos . C-335 and R-234, decided March 11, 1938 , 5 N. L. R B. 908
DECISIONS AND ORDERS 349
no impediment to his successfully performing his work. Nor do we
find any ground in Davies ' assent, under economic duress , to an offer
of a job not substantially equivalent and in violation of the settlement
agreement . Nor can we perceive any compelling reason in the possi-
bility that at some time in the future Davies may suffer an accident in
the course of his employment which may produce a strangulation of
the hernia which may result in a compensable risk under the State law
which may occasion an increase in premium rate on an experience
basis. An injury to any of the respondent 's employees in an accident
arising out of and in the course of employment may induce a similar
series of events.
We further hold that the matter of reinstating Starkey and Eline
has not become moot by virtue of their present employment. Each of
these men stated at the hearing that despite such employment he
wished to be reinstated to the position which he had held at the time of
his furlough. The fact that an employee may be receiving somewhat
more compensation at other employment, whether from the same or
another eniiployer, does not necessarily show that he is enjoying sub-
stantially equivalent employment . There is an infinite variety of
reasons which may duly move an employee in such a case to seek his
old job and past surroundings, and in the absence of strong evidence
to the contrary, the employee's own wish is entitled to great weight in
determining whether he has actually acquired such equivalent. We
find that Starkey and Eline have not been shown to have acquired
substantially equivalent employment, and, irrespective thereof, that
their reinstatement is necessary in order to effectuate the policies of
the Act.
Nor has the matter of hiring Heishman become moot because of
an arrangement considered by him and Burke in February 1937.
Heishma a testified that Burke told him at that time : "We will give
you thin opportunity at the first opening in the plant, regardless of
where it is, if you will accept with the understanding that you will be
the first, mean to be transferred back to, your department." Heishman
testified that lie acquiesced but has never been notified of a vacancy
in the plant or his department. Burke, on the other hand, testified
that he had merely said to Heishman that "if there was a future
opening in the department, the work of which he was capable of
doing, we would communicate with him," and that since there had
been no such opening in that department, Heishman had not been
called. A reading of Burke's testimony convinces us that he con-
sidered the promise, to which he testified , not a contractual under-
taking but a gratuitous concession, and the fact that the respondent's
answer alleges no agreement executed in February , confirms such
view. . The respondent 's brief, filed on January 17, 1938, indicates
350 NATIONAL LABOR RELATIONS BOARD
that Heishman had still not been called to work at that time. It is
apparent that the minds of the parties never met, or if such under-
standing was reached in February , its performance has long since
been abandoned . If either case be true , Heishman's employment
cannot be held moot. In sum, we do not find sufficient evidence in
the record to support an existing agreement determinative of Heish-
man's hire.
VI. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices , we shall order it to cease and desist from further
engaging in such practices . Moreover , we shall order the respondent
to take certain affirmative action which we deem necessary to effectu-
ate the policies of the Act.
In view of the agreement and consent of the respondent entered of
record we shall order the respondent to withdraw all recognition
from The Kelly-Springfield Employees Protective Association, Inc.,
as the representative of any of its employees for the purposes of
collective bargaining, and to disestablish it as such representative.
We have found that the respondent has discriminated in regard
to the hire , tenure of employment , and condition of employment,
of Bernard Heishman, Edward Kyle, and John Davies, and to the
hire and tenure of employment of Albert Starkey, Charles Eline,
and James Reed. We, therefore , shall order that the respondent
offer employment and reinstatement to Bernard Heishman and John
Davies in and to the positions held by them on April 3 , 1935, at
the time of their furlough , and offer full 'reinstatement to Albert
Starkey to the position held by him in July 1935 at the time of his
furlough ; to Charles Eline, to the position held by him on January
17, 1936, at the time of his furlough ; and to James Reed, to the
position held by him on June 1, 1936 , at the time of his discharge.
If necessary , the respondent shall displace employees occupying such
positions , in accordance with seniority rules or other procedures now
in force. Counsel for the respondent stated at the oral argument
that since the issuance of the complaint the respondent and Union
have established seniority rules based upon service at the plant.
Inasmuch as it appears that the type of position held by Edward
Kyle at the time of his furlough is now being performed by but
one man on each shift, who also is given additional work to perform,
we shall order the respondent to offer employment and reinstate-
ment to Edward Kyle in and to a position the same as or substan-
tially equivalent to that held by him at the plant at the time of his
furlough on April 3, 1935.
We further shall order the respondent to make whole Heishman,
Kyle, Davies , Starkey, Eline, and Reed for any loss of pay they
DECISIONS AND ORDERS 351
may have suffered by reason of the discrimination of the respondent
against them in regard to their hire or tenure of employment or
condition of employment. Inasmuch as we have found that the re-
spondent discriminated against Charles Eline by furloughing him on
January 17, 1936, we shall order that the respondent pay him a sum
equal to that which he normally would have earned as wages during
the period from that date until the date of the offer of reinstatement;
and since the respondent discriminated against James Reed by dis-
charging him on June 1, 1936, we shall order that the respondent
pay him a sum equal to that which he normally would have earned
as wages during the period from that date until the date of the offer
of reinstatement.
With respect to Heishman, Kyle, Davies, and Starkey, we shall
award similar sums commencing with the time that the respondent
discriminated against them by failing or refusing to employ them in,
or reinstate them to, the positions which they respectively had been
employed at the plant at the time of their furloughs. In instances
where the precise date when a position was filled does not appear,
we shall fix such date from the time when it affirmatively appears that
the available position already had been filled. Accordingly, we shall
order that the respondent pay Charles Heishman a sum equal to that
which he normally would have earned as wages during the period
from July 1, 1936, until the date of the offer of employment and
reinstatement; that it pay Edward Kyle a sum equal to that which he
normally would have earned as wages during the period from October
20, 1936, until the date of the offer of employment and reinstatement;
that it pay John Davies a sum equal to that which he normally would
have earned as wages during the period from June 30, 1936, until
the date of the offer of employment and reinstatement; and that it
pay Albert Starkey a sum equal to that which he normally would have
earned as wages during the period from July 1, 1936, until the date
of the offer of reinstatement. An allowance shall be made in each
case for the period from August 22, 1936 to September 1, 1936, when
the plant was closed as a result of the strike; and, further, for amounts
earned during the period for which compensation shall be awarded.
The respondent states that in view of its consent and agreement to
the disestablishment of the Association as a collective bargaining
agency of its employees, it should not be required to post notices
'thereof in conspicuous places at its plant. We have indicated that
the Association is now defunct and the respondent has recognized
the Union as the sole representative of its employees for collective
bargaining and other purposes. Accordingly, the posting of such
notices is unnecessary.
We shall order further affirmative action in manner hereinafter
set forth.
352 NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, and upon the entire record
in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Rubber Workers of America, Local No. 26, and The
Kelly-Springfield Employees Protective Association, Inc., are labor
organizations, within the meaning of Section' 2 (5) of the Act.
2. The respondent, by discriminating in regard to the hire and ten-
ure of employment and condition of employment of Bernard Heish-
man, Edward Kyle, and John Davies, and by discriminating in
regard to the hire and tenure of employment of Albert Starkey,
Charles Eline, and James Reed, and thereby discouraging member-
ship in the Union, has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (3) of the Act.
3. The respondent, by interfering with, restraining and coercing its
employees in the exercise of rights guaranteed in Section 7 of the
Act, has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, The Kelly-Springfield Tire Company, and its officers,
agents, successors and assigns shall:
1. Cease and desist :
(a) From discouraging membership in the Union or any other
labor organization of its employees by discriminating in regard to
hire or tenure of employment or any term or condition of employ-
ment, whether in regard to furloughing or discharging employees
or otherwise, because of membership in or activity in behalf of the
Union or any other labor organization of its employees, including
participation in departmental and plant grievance committee work
in behalf of the Union or such labor organization;
(b) From in any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-organization,
to form, join, or assist labor organizations, or to engage in concerted
activities for their mutual aid or protection, as guaranteed in Section
7 of the Act. °
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from The Kelly-Springfield Em-
ployees Protective Association, Inc., as the representative of any of
DECISIONS AND ORDERS 353
its employees for the purpose of dealing with it in respect to griev-
ances, labor disputes, wages, rates of pay, hours of employment, find
other conditions of employment, and completely disestablish said
organization as such representative;
(b) Offer employment and full reinstatement to Bernard Heish-
man to the position in which he was employed on April 3, 1935, in
the calender room, without prejudice to his seniority rights and other
rights and privileges; and make said Bernard Heishman whole for
any loss he may have suffered by reason of the discrimination of the
respondent in failing or refusing to employ him in such position on
July 1, 1936, by paying to him a sum equal to that which he normally
would have earned as wages during the period from July 1, 1936,
until the date of the offer of employment and reinstatement, less the
amount, if any, which he may have earned during said period;
(c) Offer employment and full reinstatement to Edward Kyle to
a position the same or substantially equivalent to that in which he
was employed on April 3, 1935, in the curing department, without
prejudice to his seniority rights and other rights and privileges; and
make said Kyle whole for any loss he may have suffered by reason
of the discrimination of the respondent in failing or refusing to
employ him on July 15, 1936, by paying to him a sum equal to that
which he normally would have earned as wages, in the position which
he may accept hereunder, during the period from October 20, 1936,
until the date of the offer of employment and reinstatement, less the
amount, if any, which he may have earned during said period;
(d) Offer employment and full reinstatement to John Davies to
the position in which he was employed on April 3, 1935, in the
curing department, without prejudice to his seniority rights and
other rights and privileges ; and make said Davies whole for any
loss he may have suffered by reason of the discrimination of the
respondent in failing or refusing to employ him in such position on
June 30, 1936, by paying to him a sum equal to that which he nor-
mally would have earned as wages during the period from June 30,
1936, until the date of the offer of employment and reinstatement,
less the amount, if any, which he may have earned during said
period ;
(e) Offer full reinstatement to Albert Starkey to the position in
which he was employed in July 1935 in the bead room, without
prejudice to his seniority rights and other rights and privileges; and
make said Starkey whole for any loss he may have suffered by reason
of the discrimination of the respondent in failing or refusing to
reinstate him to such position on July 1, 1936, by paying to him a
sum eqia-al to that which he normally would have earned as wages
during the period from July 1, 1936, until the date of the offer of
354 NATIONAL LABOR RELATIONS BOARD
reinstatement, less the amount, if any, which he may have earned
duffing said period ;
(f) Offer full reinstatement to Charles Eline to the position in
which he was employed on January 17, 1936, in the bead room,
without prejudice to his seniority rights and other rights and priv-
ileges; and make said E1ine whole for any loss he may have suffered
by reason of the discrimination of the respondent in furloughing him
on said January 17, 1936, by paying to him a sum equal to that which
he normally would have earned as wages during the period from
January 17, 1936, until the date of the offer of reinstatement, less
the amount, if any, which he may have earned during said period;
(g) Offer full reinstatement to James Reed to the position in
which he was employed on June l,'1936, in the calender room, without
prejudice to his seniority rights and other rights and privileges ; and
make said Reed whole for any loss he may have suffered by reason
of the discrimination of the respondent in discharging him on said
June 1, 1936, by paying to him a sum equal to that which he nor-
mally would have earned as wages during the period from January
17, 1936, until the date of the offer of reinstatement, less the amount,
if any, which he may have earned during said period;
(h) Post immediately notices to its employees in conspicuous places
within and without its Cumberland plant stating that it will cease
and desist in the manner set forth in 1 (a) and (b), and that it
will take the affirmative action set forth in 2 -(b), (c), (d), (e), (f),
and (g), of this order;
(i•) Maintain the afore-mentioned notices for a period of at least
thirty (30) days from the date of posting;
(j) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this order what steps it has
taken to comply herewith.