Triplet Electrical Instrument Co.

National Labor Relations Board - Board Decisions

Dec 13, 1940

28 N.L.R.B. 572 (N.L.R.B. 1940)

In the Matter of THE TRIPLETT ELECTRICAL INSTRUMENT COMPANY,
THE DILLER MANUFACTURING COMPANY, DOING BUSINESS UNDER THE
FIRM NAME AND STYLE OF - READRITE METER WORKS and UNITED
ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, LOCAL No.
714
Case No., C-1689.-Decided December 13, 19.40
Jurisdiction : electrical instrument manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion
Eviction of union organizer from respondent's public reception office, wit-
nessed by employees and accompanied by advice to "get out of town," violative
of Section 8 (1).
Discrimination: discharge for union activities
Remedial Orders : reinstatement and back pay.
'Mr. Max W. Johnstone, for the Board.
Wheeler, Bentley cf' Cory, by Mr. H. 0. Bentley, Mr. C. H. Neville,
and Mr. C. H. Cory, of Lima, Ohio, for the respondents.
Mr. Edwin Beal, of Mansfield, Ohio, for the Union.
Mr. Milton E. Harris, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon, charges duly filed by United Electrical, Radio & Machine
Workers of America, Local No. 714, herein called the Union, the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Eighth Region (Cleveland, Ohio), issued
its complaint,, dated May 25, 1940, against The Triplett Electrical
Instrument Company, herein called the Triplett Company, and The
Diller Manufacturing Company, doing business under the firm name
and style of Readrite Meter Works, herein called the Diller Company,
alleging that the Triplett Company and the Diller Company, herein
collectively called the respondents. at their plants in Bluffton, Ohio,
'At the opening of the hearing, the name of the Union was amended without objection
to read as above set forth. In the complaint as issued , the Union was identified as United
Electrical and Radio Workers of America, Local No. 714.
28 N. L. R. B., No. 85.
572
THE TRIPLETT ELECTRICAL INSTRUMENT COMPANY 573
had engaged in and were 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. The complaint, accompanied by a notice of
hearing thereon, was duly served on the Triplett Company, on the
Diller Company, and on the Union.
With respect to the unfair labor practices, the complaint alleged
in substance that the respondents at their Bluffton plants (1) during
the'moiiths of November and December 1939, and thereafter, inter-
fered with, restrained, and coerced their employees by various acts,
including specifically a forcible ejection of Edwin Beal, a representa-
tive of the Union, from the respondents' public reception office on or
about November 27, 1939, accompanied by threats that he had better
get out of town; and (2) discharged Harley Kohler on or about
December 26, 1939, and at all times thereafter refused to reinstate
him, to discourage membership in and activity on behalf of the
Union.
On May 28, 1940, the respondents duly filed their answer, in effect
admitting the Board's jurisdiction but specifically denying the al-
leged unfair labor practices.2
Pursuant to notice ,3 a hearing was held in Lima, Ohio, on June 17
and 18, 1940, before Earl S. Bellman, the Trial Examiner duly
designated by the Board. The Board and the respondents were rep-'
resented by counsel and the Union by a representative. All parties
participated in the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. At the close of the Board's case, a
motion by counsel for the Board to amend the pleadings to conform
to the proof was granted without objection.' The respondents moved
to dismiss the complaint for failure of proof at the close of the
Board's case, again at the close of the respondents' case, and again
at the close of the hearing. Ruling was reserved on these motions.
During the course of the hearing, the Trial Examiner made various
rulings on other motions and on objections to the admission of evi-
dence. The Board has reviewed these rulings and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
On September 30, 1940, the Trial Examiner filed his Intermediate
Report, copies of which were duly served on the Triplett Company,
on the Diller Company, and on the Union. In the Intermediate
8 The Trial Examiner stated at the hearing that, inasmuch as none of the parties
objected , a letter received by the Regional Director from the Triplett Company on May
28, 1940, denying the allegations of unfair labor practices in the complaint , would be
considered as an answer to the complaint:
8The Triplett Company having requested a postponement , of the hearing, the Regional
Director issued and served on the parties an order postponing the hearing until June'17,
1940.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Report he (1) denied the respondents' motions to dismiss the com-
plaint, (2) found that the, respondents had engaged in the unfair
labor practices alleged, and (3) recommended that they cease and
desist therefrom and take certain affirmative action.
Thereafter, the Triplett Company duly filed its exceptions to the
Intermediate Report.' The Board has considered the exceptions and,
in so far as they are inconsistent with the findings, conclusions, and
order hereinafter set forth, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
The Triplett Electrical Instrument Company was incorporated
under the laws of the State of Ohio in 1932. The Diller Manufac-
turing Company, doing business under the firm name and style of
Readrite Meter Works, was incorporated under the laws of the State
of -Ohio in 1909.5 The respondents operate and control under joint
management two plants in Bluffton, Ohio, known as the Triplett
plant and the Readrite plant. R. L. Triplett serves as president
of the respondents and as general manager of both plants.6 The
respondents have their principal offices at Bluffton, and together em-
ploy about 250 persons.-
The respondents are engaged jointly in the production, manu-
facture, sale , and distribution of electrical measuring instruments.
The raw materials used in the manufacture of finished products con-
sist, for the most part, of pressed steel and bakelite, approximately
50 per cent of such raw materials being received from outside the
State of Ohio. The annual value of the respondents' manufactured
products is in excess of $300,000, approximately 75 per cent of
such finished products being sold and shipped outside the State of
Ohio. It was stipulated by the respondents that they are engaged'
in interstate commerce within the meaning of the Act.7
'The Board received a letter from the Triplett Company on October 24 , 1940, in which
it excepted to the Trial Examiner's findings of unfair labor practices The Board there-
after advised the Triplett Company to serve a copy of its letter on the Union and to
submit four additional copies thereof to the Board if it desired to have the letter consid-
ered as its Exceptions to the Intermediate Report . The Triplett Company thereafter
submitted four additional copies of its letter to the Board and stated that copies thereof
had also been mailed to the Union.
In the letter of the Triplett Company received by the Board on October 24, 1940, as
hereinbefore set forth, it was stated that "The Diller Mfg. Company . . . dissolved and
went out of business in June, 1940 "
Triplett testified that the respondents were "his companies."
' The record discloses that the respondents are operated as a joint enterprise , and not
as competitors . Moreover , the respondents are represented in this proceeding by the same
attorneys , and entered into a stipulation concerning the amount of their combined raw
materials and finished products which were transported in interstate -commerce
THE TRIPLETT ELECTRICAL INSTRUMENT COMPANY 575
II. THE ORGANIZATION INVOLVED
United Electrical, Radio & Machine Workers of America, Local
No. 714, is a labor organization, admitting to membership employees
of the respondents employed, at the Bluffton plants. It is affiliated
with the Congress of Industrial Organizations.
III. THE UNFAIR LABOR PRACTICES
A. Background
On March 7, 1938, after a hearing on a complaint theretofore
issued by the Board alleging that the respondents, at their Bluffton
plants, had engaged in and were engaging in certain unfair labor
practices affecting commerce, within the meaning of Section 8 (1),
(2), (3), and (5) and Section 2 (6) and (7) of the Act, the Board
duly issued a Decision and Order 8 finding that the respondents had
engaged in the alleged unfair labor practices,9 and ordering the
respondents (1) to cease and desist from engaging in such practices;
(2) to disestablish the Committee of 17 and The Bluffton Electrical
Association, Inc. as collective bargaining representatives; (3) to re-
instate four named employees with back pay; (4) to offer back pay to
all employees who had been locked out and subsequently reinstated 10
and to an employee who had been suspended for several weeks; (5)
to bargain collectively with the Union ".upon request; and (6) to post
notices stating that the respondents would cease and desist as afore-
said and would disestablish the Committee and the Association.
Thereafter, in November and December 1938, the respondents, the
Union, and an attorney- for the Board entered into a stipulation
providing for a consent decree modifying and enforcing the Board's
order of March 7, 1938,12 in settlement of the aforesaid case, and
agreeing to reinstate 14 named employees with back pay, in settle-
ment of another case-designated in the Board's files as Case No.
C-855, involving the same parties and plants.13
Pursuant to the stipulation and proposed consent decree, the
respondents in January 1939 posted notices in their plants stating
s 5 N L R B. 835.
The Board dismissed the allegations of the complaint with respect to the respondents'
domination of the T R Club, upon a finding that it was not a labor organization, and with
respect to their discrimination against certain employees
iO The respondents employed approximately 300 persons at the time of the lock-out.
^' The Union's name at that time was United Electrical and Radio Workers of America,
Local No. 714. -
iS The consent decree, which omitted certain parts of the Board's order, was subse-
quently entered by the Circuit Court of Appeals for the Sixth Circuit on February 16,
1939
I- In Case No. C-855, a hearing had been held and an Intermediate Report had baaM
filed and served, but the Boaid had not issued a Decision and Order.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they would- cease and desist from in any manner discouraging
membership in the Union; from in any manner encouraging member-
ship in, or dominating or interfering with the administration of, or
contributing support to, the Committee of 17, or The Bluffton Elec-
trical Association, Inc., or any other labor organization; and from in
any other manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed in Section 7 of the Act. The
notices further stated that the respondents would withdraw recog-
nition from and completely disestablish the Committee of 17 and
The Bluffton Electrical Association, Inc. as collective bargaining
representatives of any of the employees.
On or about January 12, 1939,,when nine of the employees were
reinstated, pursuant' to the stipulation and proposed consent decree,
each was interviewed individually by Arden, R. Baker, the respond-
ents' personnel manager. Baker informed them that their return
to work would cause a lot of friction in the plant,14 and stated that
he hoped they would do everything possible to quiet things down.
The employees gave assurances that they would do their part toward
restoring harmony, and requested that they be met halfway in at-
tempting to avoid friction. Baker also told the employees that
business was going to get worse and that they must expect the plant
to operate on short time. Thereafter, the Union addressed a letter to
President Triplett, dated ' January 12, 1939, setting forth the sub-
stance of the discussions had with Baker, calling attention to Baker's
discouraging remarks, and offering full cooperation and friendliness 15
So far as the record discloses, the respondents did not reply to this
letter.
On April 6, 1939, Harley G. Kohler, one of the nine reinstated
employees, went to George H. Klay, machine superintendent of the
Triplett plant, and asked to be transferred to some other kind of
work where he might get more time than the 4 days a week he had
been receiving. Kohler testified that Klay replied that he would have
to stay on the job where he was or quit, and that Klay added, "If you
people had not lied the way you did in the other hearing, why, things
14 These nine employees were all members of the Union.
11 This letter stated, among other things :
We were somewhat disappointed at the consistently discouiaging tone taken by
Mr. Baker when he spoke to us. We were sure he 'did not intend the atmosphere
which surrounds us at work in the factory and which is to prevade the factory is
to become discouraging and oppressive because of the reinstatement of union mem-
bers we would urge that you watch this element in the situation, since so far as we
can see , it is the only thing that might influence employees who ai e at present not
union members to cause the friction on the plant, which Mr. Baker said he feared.
In conclusion may we assure you as officially representing the Triplett organiza-
tions, that it is the earnest desire of the members of our union that the most friendly
relationship be established and maintained between the union members and your
companies we will exert every effort possible to work in harmony , with a spirit
of cooperation and friendliness, between employer and employee, . . .
,THE TRIPLETT ELECTRICAL INSTRUMENT COMPANY, 577
would be different." 16 Immediately after this conversation, Kohler
wrote down upon a slip of paper the substance" of Klay's statement.
Kohler's memorandum is dated April 6, and reads as follows :
George said this God damn Tieing has got to be stopped, and
he was going to see that it was. He also said he was going to
make a check on everything I did from now on.
When Superintendent Klay was called to the stand by the respond-
ents, he did not testify concerning the foregoing incident. Hence,
Kohler's testimony is uncontradicted. While Kohler's memorandum
of April 6 does not indicate what "lieing" Klay was referring to,
it is clear from, Kohler's uncontradicted testimony at the hearing
that Klay, as the Trial Examiner found, was referring to the testi-
mony of union witnesses at former Board hearings involving the
respondents. The above conversation of Superintendent Klay with
Kohler clearly shows the hostility of the respondents toward the
Union.
In view of the history of the respondents' labor relations, as' above
set forth, it is evident that the attitude of the respondents toward the
Union was hostile. The specific unfair labor practices alleged in
the complaint and discussed hereinbelow, namely, the ejection of
Beal on November 27, 1939, and the discharge of Kohler on December
26, 1939, must be evaluated in the light of the attitude of the respond-
ents and the background above set forth.
B. The ejection of Beal on November ^07, 1939
During approximately a year preceding November 27, 1939, the
Union made no attempt to organize the respondents' employees. On
the morning of November 27k, 1939, however, the Union's inactivity
terminated. On that morning organizational efforts were initiated
by the distribution of a letter-size mimeographed handbill addressed
to "Triplett-Readrite Workers." The leaflet emphasized the impor-
tance of raises in pay to workers, the success of the Union in getting
such raises at another plant, and the necessity for joining the Union
in order to get such raises to meet mounting living costs. The leaf-
lets were passed out to employees of the Triplett and Readrite plants
as they were going into work on the morning of November 27, by
Edwin Beal, an international representative of the Union, assisted
by three members of another local of the Union from Lima, Ohio.
Shortly before 8 o'clock, after most of the leaflets had been passed
out, Beal entered the respondents' public lobby at the Triplett plant
16 Klay referred to the hearing on which the Board's Decision and Order of March 7,
1938, was based. Kohler was one of the employees «bo had testified at this hearing.
578 DECISIONS , OF NATIONAL LABOR RELATIONS BOARD
with some of the leaflets in his hand. -Beal testified , in part, that he
went into the public lobby to give the three remaining copies of the
leaflet to the respondents for their information and their files, as he
had done in "every other plant"; that he found no girl at the infor-
mation booth and no one in the lobby; that he looked around and
was about to go when Superintendent May rushed out of an adjoining
private office, and began pushing him out of the front door, saying,
"You get out of here." Beal further testified that he did not remem-
ber the exact language May used, but that it was very brusque; that
he offered no resistance ; that he was pushed , through the doorway
while he was trying to explain that he wanted to leave the leaflets
with the management for its, files, but that he was drowned out with
the shout, "Get out of here." He also testified that, as a last word
to him, after he was outside on the sidewalk and Klay was standing
in the office door, May said, "You had better get out of town .", Upon
cross-examination, Beal denied that he had made any attempt to go
into the inner office where the clerical employees work, or that May
had told him that he could not go in there., Beal did not claim that
he suffered any physical injury during the ejection.
Two of the three men who 'helped Beal distribute leaflets were
called by the Board to testify. One testified that, after, Beal was
evicted , he saw Beal in the middle of the sidewalk with May in the
door "waving his arms and gesticulating "; that it appeared Klay
was saying something, but that he (the witness) was too far away to
hear. The other testified that just before they were ready to return
to Lima, Beal said he wanted to take a -couple of leaflets into the
management; that Beal started in with a couple of the leaflets, but
was pushed out by May as soon as he got inside ; and that after the
eviction he (the witness) heard Klay and Beal carrying on a conver-
sation but was "too far away to get any of the conversation."
May testified that he first learned of the distribution of the hand-
bills when some of the employees came in with them , and he "sur-
mised that probably the Union was outside passing them out"; that
he then walked into the general office, adjoining the public lobby,
and stood there and watched out of a window for awhile; that he
noticed Beal outside coming toward the door of the lobby, and
watched him until he heard the door open; and that he then walked
from the window in the general office to the door between the lobby
and the general office. According to May, Beal glanced at the infor-
mation window , did not stop there, but walked by it and approached
May, holding out some leaflets . May testified that he did not "re-
member what I said to him first, but after he said he wanted to pass
the papers . . . I told him to get out ." May testified further that
Beal made no attempt to go, so he took him by the arm and led him
THE TRIPLETT ELECTRICAL INSTRUMENT COMPANY 579
toward the door, telling Beal that he could distribute, the leaflets on
the street but not in the building. During his testimony Klay in-
sisted that he understood from Beal's statement that Beal wanted
to pass out the leaflets to employees in the general office. Klay denied
that any conversation took place at the door after he had taken Beal
out, or that he made any statement to Beal to the effect that Beal
had better get out of town.
Josephine Klay, a daughter of Superintendent, Klay and an em-
ployee in the respondents' general office, testified, among other things,
when called by the respondents, that members of the general public
who called at the respondents' office are ordinarily not treated as Beal
was treated on November 27. After Miss Klay had become confused
during cross-examination, the Trial Examiner asked her to state in
sequence all the conversation which, she had heard between her father
and Beal. Thereupon Miss Klay testified that the first thing she had
heard was her father's statement, "Out, brother"; that Beal then said,
"I would like to hand out these pamphlets"; and that the foregoing
was all she heard either Beal or her father say. A second general
office employee called by'the respondents testified in part that Klay
walked out into the public lobby and there said to Beal, "Out, brother" ;
and that the two men were in the middle of the public lobby with
relation to the outside door and the general office door when Klay said,
"Out, brother," to Beal.
The Trial Examiner found that Beal was a highly credible witness
and that his explanation of the reason for entering the respondents'
lobby was a reasonable one. The testimony as to what took place
thereafter must be considered in the light of the respondents' suspicion
and hostility toward the Union, and the fact that the handbills passed
out that morning constituted the Union's first attempt in approxi-
mately a year to organize the respondents' employees. Moreover,
Beal's testimony that Klay was in the public lobby when he firstcon-
versed with Beal was corroborated by one of the respondents' own
witnesses. Klay admitted that he opened the conversation, but
claimed that he could not recall what he said first. Beal's testimony
that Klay's-statement was, "You get out of here," was substantially
corroborated by Josephine Klay and another general office employee
called by the respondent. We credit the testimony of Beal. It is
possible that Beal's attempted explanation during the commotion
which followed was misunderstood as a request to pass out leaflets to
the employees. From the testimony of all three witnesses called by
the Board, it is evident that Klay did make some parting remark to
Beal after evicting him. The statement attributed to Klay by Beal
after the eviction, that he had better get out of town, ,is in keeping
with Klay's hostility toward the Union, as he had previously expressed
413i97-42-vol 25--35
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it to Kohler when he said, "If you people had not lied the way you did
in the other hearing, why, things would be different."
When Beal's credible testimony concerning the circumstances sur-
rounding his eviction from the respondents' public lobby is, analyzed
in the light of the testimony of the other five witnesses and in relation
to the physical surroundings in which the incident occurred, it is clear
that Beal 's account on all material points is believable. The Trial
Examiner gave it full credence. Accordingly, we find that on Novem-
ber 27, 1939, when Edwin Beal was engaged in lawful and peaceful
activity, the respondents' superintendent, George Klay, within the
view of several of the respondents' employees, forcibly ejected Beal
from the respondents' public reception office and informed Beal that
he had better get out of town. We find further that such action was
not in accordance with the treatment ordinarily accorded to persons
entering the respondents' public lobby, and that it was motivated by
the respondents' hostility to the Union.
We find that, by the eviction of Edwin Beal on November 27, 1939,
as above set forth, the respondents interfered with, restrained, and
coerced their employees in the exercise of the rights guaranteed in
Section 7 of the Act.17
C. The discharge of Kohler on December 06, 1,939
'Harley, G. Kohler was one of the members of the Union who was
reinstated in January 1939, pursuant to the aforesaid stipulation.
Kohler also figured in-the incident of April 6, recounted above, -in
which Superintendent Klay referred to 'union members as having lied
at a former Board hearing, and stated that things would have been
different if they had not done so.
Shortly after the ejection of Beal by Superintendent Klay on No-
vember 27, the Union decided to secure a list of the respondents'
employees to facilitate its organizational campaign. Kohler was asked
by his sister, the recording secretary of the Union, to assist in ' com-
17 Cf. Matter of West Kentucky Coal Company and United Mine Workers of America,
District No 23, 10 N. L R. B. 88, where the Board specifically found that the company's
superintendent , by following , interfering with, and threatening union organizers , engaged
in interference, restraint , and coercion ; and ordered the company in part to cease and desist
from " following or trailing any person, or in , any other manner intimidating or interfer-
ing with the right of any person , in . consulting , conferring or advising with
talking to, meeting , or assisting" the company 's employees in regard- to their exercise of
the rights guaranteed in Section 7 of the Act . Cf., also, Matter of Mexia Teatile Mills
and Textile Workers Organizing Committee, 11 N L. R B 1167 , enf'd , Mexia Textile
Mills v. National Labor Relations Board, 110 F. (2d) 565 (C. C A 5), where the Board
specifically found that the company 's superintendent, in follouing a union organizes to
his hotel for the purpose of intimidating him, engaged in interference ,, restraint, and
coercion ; and Matter of The Van Ideistine Company and District #50 of the United
Mine Workers of America , 17 N. L . R B 771,' where the Board specifically found
that an instruction of the company 's superintendent to an ordinary employee to kick the
union organizer " in the pants" constituted interference , restraint , and coercion.
THE TRIPLETT ELECTRICAL INSTRUMENT COMPANY 581
pleting the list.18 During the noon hour on December 6, 1939, Kohler
went into the respondents', main plant and copied the names of the
employees from the time cards in the rack. He was observed by
Gideon Luginbuhl, the respondents' watchman, who continued to
watch him for about a half hour until Kohler finished copying the
names. At the time there was no rule prohibiting the copying of the
names, and Luginbuhl at no time told Kohler that it was improper
for him to do so. However, Luginbuhl asked Kohler why he was copy-
ing the names , and Kohler replied, "I am taking their names to send
them Christmas greetings." Luginbuhl then observed, "I know what
you are doing it for; that is to send out, your C. I. O. literature."
Kohler did not attempt to deny this observation.
Luginbuhl immediately reported the incident to Klay, who in turn
reported it to Triplett, the respondents' president, upon Triplett's
return from a business trip shortly thereafter. None of Kohler's
superiors ever questioned him concerning the incident, nor did they
reprimand or discipline him in any way.
According to Triplett, on December 26, 1939, he received a report
from the chief engineer concerning some missing plans. He there-
upon recalled the incident in which Kohler had copied names from
the time cards 3 weeks earlier, and determined to have Kohler called
in for questioning. Triplett questioned Kohler in the presence of
Klay, and inquired whether Kohler knew anything concerning the
missing plans. Kohler denied any knowledge of the plans. Triplett
then asked him whether he had ever taken any information from the
respondents' records. Kohler first replied in the negative, but, upon
being reminded that he had been seen copying names from the time
cards, admitted that he had done so. Triplett asked the reason for
his having done so' and what he intended to do with the informa-
tion. Kohler replied that he "didn't think that was any of his
[Triplett's] business ." Triplett testified that he thereupon became
incensed, and told Kohler that he was discharged,' saying, according
to Kohler, "Mr. Beal told you to do this, didn't he?" 19 Kohler then
admitted copying the names from the time cards at Beal's request,
whereupon Triplett repeated his statement that Kohler was "fired,"
and told him to go to the office and get his check. Kohler was not
thereafter reinstated by the respondents.
On December 27,, 1940, the day following Kohler's discharge, Per-
sonnel Manager Baker signed a report for the Ohio Unemployment
IS The meeting, of the Union at which it was definitely decided to get a mailing list
took place on the first Tuesday in December, which was December 5.
18 Both Triplett and Klay testified that, after Kohler had peen told that he was dis-
charged because of his reply, it was Kohler who first mentioned the name of Beal, stating
that he had copied the names at Beal's request . The Trial Examiner did not credit this
testimony , nor do we
'582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Compensation Commission certifying that Kohler was, discharged
"for taking Company records from the premises." At the hearing,
however, Triplett testified that he was not accusing Kohler of taking
any company records, but that he had discharged Kohler solely be-
cause of'Kohler's response when he attempted to "secure information"
as to Kohler's purpose in copying the names. The respondents did
not call Personnel Manager Baker to testify, nor did the respondents
offer any explanation for the contradictory reasons for Kohler's dis-
charge given by Baker on the report and by Triplett at the hearing.
It is clear that Kohler's remark, which the respondents assert was
the only reason for his discharge, was provoked-by Triplett's rhetori-
cal question designed.to make Kohler confess his union activity, and
was not, as the respondents argue, an insolent response to a perfectly
proper and/bona Fade request for information. As has been found
above, the respondents were hostile toward the Union. Shortly be-
fore Kohler's discharge, the Union had renewed its organizational
campaign among the respondents' employees, and, in connection
therewith, Beal had been evicted by Klay. While Kohler had been
seen copying names from the respondents' time cards almost 3 weeks
prior to his discharge, the respondents did not speak to him or dis-
cipline him for his action.
Although Kohler's reply to Triplett, to the effect that it was none
of Triplett's business why Kohler had copied the names, was im-
proper, we are satisfied that it was not the true cause of the dis-
charge. Manifestly, the respondents' deep-seated hostility toward the
Union was basically responsible, for- it caused Triplett to determine
to call Kohler in for questioning on December 26 and to ask a ques-
tion which, since he already knew the answer, can only be viewed
as another attempt to inquire into and discourage\union activity. In
our view, Kohler's improper remark merely caused the respondents'
smoldering anti-union hostility to flare up, and, except for this pent-
up hostility, would not have brought about his discharge. The fore-
going conclusion is confirmed by the fact that Triplett consummated
the discharge even after Kohler, by giving Triplett the information
requested, had in effect rescinded the "uncooperative" statement which
Triplett testified caused the discharge. Moreover, the reason assigned
by Baker the following day for Kohler's discharge was at variance
with the reason assigned by Triplett at the hearing, and clearly in-
dicates that Triplett's testimony attempted to justify the discharge
rather than to explain its cause. .
Under all the circumstances prevailing in this case, we find that
the respondents discharged Harley G. Kohler on December 26,,1939,
and have since refused to reinstate him, becaused of his membership
in and his activity on behalf of the Union, and that the respondents,
by so doing, discriminated in regard to the hire and- tenure, of em-
THE .TRIPLETT ELECTRICAL INSTRUMENT COMPANY 583
ployment of Harley G. Kohler to discourage membership in the
Union ; and that the respondents thereby interfered with, restrained,
and coerced employees in the exercise of the rights guaranteed in
-Section 7 of the Act.2°
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III above,
occurring in connection with the operations of the respondents 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 connnerce
and the free flow of commerce.
THE REMEDY
Having found that the respondents have engaged in unfair labor
practices, we shall order them to cease and desist therefrom and to
take certain affirmative action hereinbelow described, which we find
necessary to effectuate the policies of the Act.
Having found that the respondents, by discharging Kohler and
thereafter refusing to reemploy him, discriminated in regard to his
hire and tenure of employment, we shall order them to offer Kohler
immediate and full reinstatement to his former or a substantially
equivalent position, without prejudice. to his seniority and 'other
rights and privileges, and to make Kohler whole for any loss of pay
he suffered by reason of the discrimination against him, by payment
to him of a sum of money equal to that which he normally would
have earned as wages from December 26, 1939, to the date of the offer
of reinstatement,' less his net earnings,21 if any, during said period.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
20 At no time did the respondents make an issue of 'whether Kohler was employed by
the Triplett Company or the Diller Company just prior to his discharge On the contrary,
Kohler testified that he was then employed by the Triplett Company, and the report signed
by Baker on the day after Kohler's discharge stated that the employei 's name was the
Triplett Company.
21 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 respondents , which would not 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 Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N L R . B 440. Monies received
for work performed upon Federal , State , county , municipal , or other work -relief projects
shall be considered as earnings . See Republic Steel Corporation v. National Labor Rela-
tions Board, decided by United States Supreme Court, November 12, 1940.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. United Electrical, Radio & Machine Workers of America, Local
No. 714, affiliated with the Congress of Industrial Organizations, is
a labor organization, within the meaning-of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment
of Harley G. Kohler, thereby discouraging membership in United
Electrical, Radio & Machine Workers of America, Local No. 714, the
respondents have engaged in and are engaging in unfair labor prac-
tices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act, the respond-
€nts have engaged in and are 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 Relations
Act, the National Labor Relations Board hereby orders that the re-
spondents, The Triplett Electrical Instrument Company, and The
Diller Manufacturing Company, doing business under the firm name
and style of Readrite Meter Works, Bluffton, Ohio, and their officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Electrical, Radio & Ma-
chine Workers of America, Local No. 714, affiliated with the Congress
of Industrial Organizations, or any other labor organization of their
employees, by discharging or refusing to reinstate any of their employ-
ees or in any other manner discriminating in regard to the hire or
tenure of their employment or any term or condition of their employ-
ment ;
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, or to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, as guaranteed in Section 7 of the National Labor Relations Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Harley G. Kohler immediate and full reinstatement to
his former or a substantially equivalent position,.without prejudice to
his seniority and other rights and privileges;
THE TRIPLETT ELECTRICAL INSTRUMENT COMPANY 585
(b) Make whole Harley G. Kohler for any loss of pay he suffered, by
reason of the respondents' discrimination in regard to his hire and
tenure of employment by payment to him of a sum of money equal
to that which he would normally have earned as wages from December
26, 1939, the date of the discrimination against him, to the date of the
offer of reinstatement, less his net earnings,22 if any, during said
period ;
(c) Post immediately in conspicuous places in each department of the
respondents' plants, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to their employees
stating (1) that the respondents will not engage in the conduct from
which they are ordered to cease and desist in paragraphs 1 (a) and (b)
of this Order; (2) that the respondents will take the affirmative action
set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the
respondents' employees are free to become or remain members of United
Electrical, Radio & Machine Workers of America, Local No. 714, and
i hat the respondents will not discriminate against any employee because
of membership or activity in that organization ;
(d) Notify the Regional Director for the Eighth Region in writing
within ten (10) days from the date of this Order, what steps the
respondents have taken to comply herewith.
CHAIRMAN HARRY A. MILLIs took no part in the consideration of the
above Decision and Order.
22 See footnote 21, supra.