United Fireworks Mfg. Co., Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1957

118 N.L.R.B. 883 (N.L.R.B. 1957)

UNITED FIREWORKS MFG. CO., INC. 883
United Fireworks Mfg. Co., Inc. and United Steelworkers of
America, AFL-CIO. Case Na. 9-CA-974. July 30, 1957
DECISION AND ORDER
On December 20, 1956, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner did not find as unfair labor practices
other conduct alleged in the complaint to be unlawful. Thereafter, the
Respondent and the General Counsel filed exceptions to the
Intermediate Report, together with supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Murdock, Rodgers, and Bean].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed, except as hereinafter discussed. The
Board has considered the Intermediate Report, the exceptions and
briefs, and the entire record in the case, and hereby adopts the find-
ings,' conclusions, and recommendations of the Trial Examiner, except
as modified herein.
1. We agree with the Trial Examiner that Respondent violated
Section 8 (a) (1) of the Act by interrogating its employees concerning
the Union, by threatening the employees with economic reprisals if
they joined or selected the Union as their representative, by requesting
an employee to engage in surveillance to ascertain the names of those
promoting the Union, by engaging in surveillance of a union meeting,
and by preventing union representatives from distributing literature
to the employees outside the gates to Respondent's plant property.
Although Respondent in its exceptions attacks a number of the Trial
Examiner's credibility findings, it has failed to advance adequate
reasons for overturning such findings, which we accordingly accept 2
Respondent in its exceptions also makes a number of other contentions
which we find are lacking in substance. Thus, Respondent asserts that
the interrogation of employee Balonier by Foreman Vance and
President Walter Beachler, as to whether he had received an applica-
tion for membership in the Union, was excused because Vance was
I In the sections of the Intermediate Report entitled "Background" and "Interference,
restraint and coercion," the Trial Examiner inaccurately described certain events as hav-
ing occurred in 1956. Later in the Intermediate Report, the Trial Examiner correctly
stated that these events took place in 1955. We correct the 1956 dates in the Inter-
mediate Report to read 1955.
2 Standard Dry Wall Products , 91 NLRB 544.
118 NLRB No. 110.
S84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
joking, and because Beachier was merely attempting to learn whether
or not the application cards had been distributed during working time.
That the advent of the Union was hardly considered to be a joke by
Vance and Respondent's other supervisors is clear from their wide-
spread and apparently successful attempts to prevent the Union from
becoming the employees' representative. Vance admitted that he
had "probably asked a lot of" employees whether they had obtained
application cards. Moreover, he did not content himself with making
inquiry regarding Balonier's receipt of a card, but also asked whether
he had it with him. It is evident that Balonier did not regard the
interrogation as a joke since he told Vance that he did not have the
card with him, and later told Walter Beachler that the card was at
home, although in fact he had signed and mailed the card to the Union
the day before. Beachier's request that Balonier bring the card to
him, together with his threat to Balonier, ultimately carried out, that
employees who joined the Union would be discharged, and his other
unlawful conduct shown by the record, all refute the claim that
Beachier was solely concerned with union solicitation during working
hours.
Similarly, we reject Respondent's contention that Walter Beach-
ler's interrogation of Balonier, Foreman Cairo's interrogation of
employee Elizabeth Owens, Donald Beachler's threat to employees
Byrd, Crafts, Marks and Gates, and Foreman Young's threat to em-
ployee Raney Webb, were isolated remarks and hence not unlawful.
The mere statement of Respondent's contention constitutes its own
refutation. We find that these remarks constituted an integral part
of Respondent's campaign to prevent unionization of its plant. We
further find that there is no merit to Respondent's claim that in warn-
ing Elizabeth Owens that for employees to sign application cards was
"just like cutting their own throats, because Mr. Beachler could open
the place twice a year and still carry his business on." Foreman
Vance was merely stating his personal opinion and accordingly en-
gaged in no unlawful conduct. There can be no question that such a
threat of reprisal on the part of a representative of management was
coercive in nature. Moreover, there is nothing to indicate that Vance
was speaking for himself and not for management. We accordingly
hold Respondent responsible for such threat.
Also without merit is the assertion that, in closing the north gate
at the plant and directing all employee automobiles to exit through
the south gate on the evening of May 27, 1955, Respondent did not in-
-tend to interfere with the distribution of union literature by Union
Representatives Childers and Jeffries, but merely attempted "to pre-
vent a threatened, disorderly and violent occurrence." The Trial
Examiner found that Respondent's conduct was designed to prevent
the Union's representatives from distributing pamphlets to the em-
UNITED FIREWORKS MFG. CO., INC. 885
ployees. We agree with the Trial Examiner's evaluation of the
evidence. Even assuming that Respondent initially acted in good
faith in blocking the north gate because of an anonymous phone call
predicting trouble, the record does not reveal circumstances which
made it necessary for Respondent to direct its employees through the
south gate at a rapid speed, and without regard for the stop signs,
while Childers was attempting to distribute union literature. Cer-
tainly, Respondent's claim that it sought to prevent trouble is hardly .
consistent with the unprovoked conduct of the Beachlers in abusing
and threatening physical harm to Jeffries and Childers, and in pushing
the latter, while the two representatives were peacefully stationed on
the public road just outside Respondent's south gate.
2. The complaint alleges that John Balonier was discriminatorily
discharged on May 30, 1955. Respondent denied this allegation, as-
serting that Balonier, was discharged because of excessive absenteeism.
The Trial Examiner, although concluding that Balonier's discharge on
May 31, 1955, "is not without suspicion," found that "the General
Counsel failed to sustain the burden of proving that the Respondent
discriminatorily discharged Balonier." We disagree with that finding.
The evidence establishes, as the Trial Examiner found, that Bal-
onier had worked for Respondent for about 2 years prior to his
discharge. Beginning in February 1954 when his wife became para-
lyzed, it frequently became necessary for Balonier to take leave from
his job in order to care for his wife, sometimes as often as three times
a week. On many of such occasions, Balonier was required to return
home from work as a result of telephone calls which he received at the
plant. This situation was known to Respondent's officials who, ac-
cording to Donald Beachler's testimony, had frequently discussed
Balonier's absences and had warned him concerning the absences.
We have already adverted to the fact that on May 26, 1955, the day
after the Union's organizing campaign began, Balonier was questioned
by his supervisor, Vance, as to whether he had received a union
application card and whether he had it with him. Later that day,
Respondent's president, Walter Beachler, similarly interrogated Bal-
onier, who replied that the card was at home. Beachler thereupon
requested Balonier to "bring it in," adding that "he would find out
who had signed the union cards and sent them in, and they would be
gone." As already mentioned, Balonier had in fact signed and mailed
his card to the Union the preceding day, and was consequently unable
to comply with Beachler's request. Several days later, on May 31,
Respondent discharged Balonier, allegedly because of the frequent
absenteeism which it had theretofore been willing to tolerate for over
a year.
On the basis of the entire record, we are persuaded that Respondent
knew or suspected that Balonier had joined the Union and seized upon
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his absenteeism as a pretext for eliminating a union adherent. We
rest our conclusion, among other things, upon Vance's and Beachler's
repeated efforts to obtain Balonier's union application card from him,
upon Respondent's antiunion attitude, as evidenced by the numerous in-
stances of interrogation, threats, and other coercive conduct by Re-
spondent toward Balonier and other employees, which the Trial Ex-
aminer found and which are amply supported by the record, and
upon the fact that Balonier's long continued absenteeism became in-
tolerable to Respondent only with the advent of the Union's organiz-
ing campaign and Balonier's membership in the Union. In addition,
we note the credited testimony of employee Raney Webb that one of
Respondent's supervisors, Urban Young, had told him that "the old
man went down and found out everyone that sent in [union] cards.
He said it cost a lot of money to do it, but he found out anyway, and
they wasn't going to stay. And he said John Balonier and Charlie
Justice went on account of it, and the rest would, too." 3 We accord-
ingly find that Balonier's discharge violated Section 8 (a) (3) and (1)
of the Act.
3. At the hearing, Respondent contended that employee Elizabeth
Owens was laid off on September 19, 1955, for economic reasons-
specifically, as testified by Superintendent Robert Beachler, "due to
lack of materials." In considering the same contention with respect
to the layoffs of employees Marvin and Omeda Banks, Lottie Daniels,
Rose Gates, and Frances Martin, the Trial Examiner found that "Re-
spondent's economic defense is vague and contradictory" and rejected
the claim of lack of materials. Despite this conclusion, the Trial Ex-
aminer found that the General Counsel failed to sustain the burden of
proving that Respondent unlawfully discriminated against Owens be-
cause the record is "insufficient to justify a finding that Respondent
had . . . knowledge" of Owens' union activities. While we agree that
Respondent's economic defense should be rejected, we do not agree
that the record is insufficient to support a finding of Respondent's
knowledge, or at least suspicion, of such union activities.
Our disagreement with the Trial Examiner is not based upon a
rejection of his credibility determinations, but rather rests upon our
different evaluation of credited or admitted testimony. Thus, as
stated by the Trial Examiner, Superintendent Robert Beachler ad-
mitted that on the day after the Union began its organizing campaign,
Owens asked him what he "thought of the Union." Beachler ap-
parently believed that Owens' question indicated her interest in be-
coming a union member, for he replied that "it was her constitutional
right to do what she wanted," although it might become necessary to
8 Although Webb's testimony quoted above constitutes hearsay for purposes of establish-
ing the truth of such testimony, it is not subject to attack by Respondent , since no
objection thereto was raised at the hearing. American Rubber Products Corp. v.
N. L. If. B., 214 F. 2d 47, 52 (C. A. 7).
UNITED FIREWORKS MFG. CO., INC. 887
discontinue operations if the plant were unionized. Thereafter, dur-
ing a conversation on the day following the union meeting which had
been subjected to surveillance by Robert Beachler, he stated to Owens
that he had been told about the meeting. Owens' reply-that she did
not think he would "care what anyone does after their work," and that
if she "had known that he wanted to go to the meeting, joined, [she]
would seen [sic] he got a card and he could have gone-signed it and
gone"-clearly. demonstrated her interest in the Union and carried
the implication that she had joined the Union, as in fact she had.
Finally, on September 16, which we note was a Friday, Owens unsuc-
cessfully solicited 3 employees to join the Union, 1 of the solicitations
taking place in the plant during a rest period; and on the following
Monday, September 19, she was discharged.'
We believe that a preponderance of the evidence supports the view
that Owens' interest in the Union was known to or suspected by Re-
spondent. This conclusion is fortified by the fact that the record does
not support Respondent's claim that Owens was discharged because
of a lack of work brought about by a shortage of materials , and hence
the discharge remains unexplained. According to a summary pre-
pared from Respondent's books and stipulated by Respondent to be
correct, it was not until the day after the union meeting on September
8, 1955, that Respondent began to find it necessary to discharge em-
ployees for lack of work. In addition to this unusual timing of the
discharges, we note, in agreement with-the Trial Examiner, that the
record contains much contradictory and inconsistent testimony by
Respondent's officials. For example, Robert Beachler testified that
Marvin Banks was discharged as part of a "general layoff" in his
department, a layoff which, as found by the Trial Examiner, involved
only Banks. On cross-examination, Beachler gave the following
reasons for the general layoff : "At that time it was due to lack of
orders. However, at that time, no, it was due to materials. But we
would be mixing at that time preparatory to hiring again at a later
time." Donald Beachler testified that Banks' wife, Omeda, was not
recalled because she was too slow, but admitted on cross-examination
that it was not possible to gauge her individual production. He
further testified that he participated in the discussion leading to the
discharge of Daniels, Martin, and Gates because of lack of materials,
but later admitted that he "wasn't in on the conversation with Dad
and Ruth Wall at that time when they did discharge those three, if
they had a discussion at all," and that he "didn't know who or which
ones" were to be discharged. Upon being pressed for an explanation,
he stated that the three employees were selected for discharge because
* Owens' discharge apparently took place on the first working day after the solicitations,
since she received 2 paychecks at the time of discharge, 1 for the previous week and 1 for
September 19, which thus presumably began a new 40-hour week.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"theirs was the least amount of production per day, or they were the
newest girls there," or perhaps both reasons. The record shows,
however, that Martin achieved her production quota during the 2
weeks prior to her discharge, that Respondent did not adhere to a
seniority policy, and that in any event Daniels, Martin, and Gates,
contrary to Respondent's contention, were not the "newest girls there."
In addition, the uncontradicted testimony of employee Scott shows that
at the time of the discharge of the three employees (whose job was to
pack sparklers) because of an alleged lack of work, unpacked sparklers
in cartons "had piled up all along the walls" and it was necessary to
store them in another building. The foregoing are only some of the
many inconsistencies in the testimony of. Respondent's officials, de-
tailed in the Intermediate Report, which lead us to question Re-
spondent's assertion that Owens was discharged because materials
were in short supply at the time in question.
Moreover, as the Trial Examiner found, with ample support in the
record, Respondent was hiring new employees at the time that it was
experiencing an alleged shortage of materials. According to Re-
spondent's officials, the shortage was brought about by flood conditions
in New England which interrupted the operations of Ensign-Bickford
Company, one of Respondent's suppliers of materials. It appears
from a printed booklet published by the said Company 5 that its opera-
tions were severely affected by floods as early as August 20, 1955. Yet
from August 22 until September 8 (the day of the union meeting),
Respondent hired 11 new employees and recalled 7 former employees.
Although 17 employees left Respondent's employ during the same
period, this represented a net increase in Respondent's work force
rather than a decrease, as might have been expected when its source of
materials became precarious. Thereafter, Respondent did decrease its
work force; but since the decrease began immediately after the union
meeting, Respondent's claim of lack of materials as the cause is at
least open to serious question. Such claim becomes even more question-
able when considered in the light of Owens' uncontradicted testimony
that Robert Beachler had turned down her request for 2 or 3 days
of leave during the Labor Day weekend preceding her discharge be-
cause Respondent was "behind and had to swing in full production,
and [Owens] was one of his best workers," and as well as her testimony
that she "was as busy as previously" on her last day of work.
6 At the hearing, Respondent sought to introduce into evidence the said booklet, which
the Trial Examiner rejected on the ground that it constituted hearsay and that a proper -
foundation for its admission had not been laid. Respondent has excepted to this ruling.
In our opinion, rejection of the booklet was erroneous. Section 10 (b) of the Act re-
quires the Board to follow rules of evidence applicable in the district courts only "so far
as practicable." we have no reason to question the authenticity of the booklet or the
correctness of the statements therein. We accordingly reverse the Trial Examiner's
ruling and receive the booklet in evidence.
UNITED FIREWORKS MFG. CO., INC. 889
On the basis of the entire record, we find ourselves unable to accept
Respondent's explanation for Owens' discharge and its claim that it
was unaware of her union activities. Even if it were assumed that
a shortage of materials required a reduction in force, it is difficult to
understand why Respondent, particularly in.view of its high rate of
employee turnover, preferred to discharge an experienced employee
like Owens, who was admittedly a "good worker," rather than to
transfer her to the job of one of the numerous new employees hired
shortly before Owens' discharge.' The record shows that it is not
unusual for Respondent to transfer employees to other jobs in the
plant.' Owens herself had held two different jobs at the plant, and
Robert Beachler admittedly "placed her on another job" when he re-
employed Owens several months after her discharge. Finally, we
note that after Owens' discharge, Respondent hired five new em-
ployees before recalling Owens. We accordingly conclude that Re-
spondent's claim that Owens was discharged because of a lack of mate-
rials was a pretext, that Respondent knew or suspected that Owens
was a Union adherent, and that she was discharged for that reason, in
violation of Section 8 (a) (3) and (1) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent United Fireworks
Mfg. Co., Inc., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating its employees concerning their interest in or
adherence to the United Steelworkers of America, AFL-CIO, or
any other labor organization; or threatening its employees with eco-
nomic reprisals for such adherence; or engaging or requesting any
employee to engage in surveillance of any union activities of its em-
ployees; or preventing the distribution of union literature outside the
gates to Respondent's plant property.
(b) Discouraging membership in the United Steelworkers of
America, AFL-CIO, or any other labor organization of its employees,
by discriminating in regard to their hire, tenure, or any other term or
condition of employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed to them in Sec-
tion 7 of the Act, except to the extent that such rights may be affected
G The evidence shows, for example, that Respondent retained three general factory
workers, Lilia Mae Parker , Peggy Jo Campbell , and Margaret E. Ewry, who had been
respectively hired on August 25, 29, and 30, 1955.
7 For example, the record shows, as the Trial Examiner found, that Rhoda and Raney
Webb worked at several different jobs.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by an agreement requiring membership in a labor organization as a:
condition of employment, as authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action which the Board finds,
will effectuate the policies of the Act :
(a) Offer to John Balonier, Omeda Banks, Rhoda Webb, Raney
Webb, and Elizabeth Owens immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to any
seniority or other rights and privileges previously enjoyed.'
(b) Make whole the employees named in paragraph 2 (a) and
Marvin Banks and Lottie Daniels for any loss of pay they may have-
suffered, by reason of the discrimination against them, in the manner
provided in the section of the Intermediate Report entitled "The
Remedy," the loss of pay to be computed on a quarterly basis in ac-
cordance with the formula adopted by the Board in F. W. Woolworth,.
90 NLRB 289.9
(c) Upon request, make available to the National Labor Relations
Board, or its agents , for examination or copying, all payroll records,
social-security payment records, timecards, personnel records and re-
ports, and all other records necessary for determination of the amount
of back pay due and the right of reinstatement under the terms of the
Board's Order.
(d) Post at its plant in Dayton, Ohio, the notice attached hereto.
marked "Appendix A." 10 Copies of such notice, to be furnished by
the Regional Director for the Ninth Region, shall, after being duly
signed by Respondent's authorized representative, be posted by the-
Respondent immediately upon receipt thereof and maintained by it
for a period of sixty (60) days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily posted..
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the -Ninth Region, in writing,.
within ten (10) days from the date of this Order what steps the Re-
spondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be dismissed insofar as;
it alleges the unlawful discharge of Rose Gates and Frances Martin.
8 We do not order the reinstatement of Marvin Banks and Lottie Daniels , who were
recalled by Respondent, but failed to respond.
'In accordance with our usual practice , the period from the date of the Intermediate
Report to the date of this Decision and Order will be excluded in computing the amount
of back pay due John Balonier and Elizabeth Owens , since the Trial Examiner did not
recommend reinstatement or an award of back pay as to them. .
io In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be submitted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order.
UNITED FIREWORKS MFG. CO., INC.
APPENDIX A
NOTICE TO ALL EMPLOYEES
891
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist United Steelworkers
of Americo, AFL-CIO, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed.
John Balonier Raney Webb
Omeda Banks Elizabeth Owens
Rhoda Webb
WE WILL make whole the above employees and also those named
below for any loss of pay suffered as a result of the discrimination.
Marvin Banks Lottie Daniels
All our employees are free to become or remain members of the
above-named Union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in, or activity on behalf of, any such labor organization.
UNITED FIREWORKS MFG. Co., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed by United Steelworkers of America , AFL-CIO , herein
called the Union , the General Counsel of the National Labor Relations Board, by
the Regional Director for the Ninth Region ( Cincinnati , Ohio), issued a complaint
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dated June 13, 1956, against United Fireworks Mfg. Co., Inc., herein called the
Respondent, alleging that the Respondent had engaged in unfair labor practices within
the meaning of Section 2 (6) (7) and Section 8 (a) (1) and (3) of the National
Labor Relations Act, as amended, herein called the Act.
The Respondent filed an answer on about June 26, 1956, in which it admitted
the jurisdictional allegations of the complaint, but denied the commission of any
unfair labor practices.
Pursuant to notice, a hearing was held at Dayton, Ohio, before the Trial Examiner,
starting on July 31, 1956, and ending on August 6, 1956. At the conclusion of the
General Counsel's case, the Respondent moved to dismiss the complaint. Ruling
was reserved. The Respondent renewed its motion to dismiss at the conclusion of
the whole case. Ruling again was reserved. The motion to dismiss is disposed of as
hereinafter indicated. The General Counsel moved to conform the complaint to the
proof as to minor variances, not as to substance. The motion was granted over
the Respondent's objection. After the close of the hearing, the General Counsel
filed with the Trial Examiner a motion to correct the record. The Respondent filed
objections to certain of the proposed corrections. The motion was granted in part.
The General Counsel's motion, the Respondent's objections and the order thereon
have been received in evidence as Trial Examiner's Exhibits Nos. 1, 2, and 3,
respectively. The General Counsel and the Respondent also filed briefs with the
Trial Examiner.
Based upon the record as a whole, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation, with its home office and principal place
of business located at Dayton, Ohio, where it is engaged in the manufacture of fire-
works. During the period of 12 months prior to the date of the complaint, the Re-
spondent, in the course and conduct of its business, caused substantial quantities of
materials, supplies, and equipment valued at more than $85,000, to be shipped from
points outside the State of Ohio to its Dayton plant. During the same period, the
Respondent caused to be shipped from its Dayton plant directly to points outside
the State of Ohio finished products valued in excess of $1,000,000.
The Respondent admits that it is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO, is a labor organization which admits
to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent's office and plant are located on 52 acres. There are approximately
161 buildings, about 40 of which are "working buildings." As of July 4, 1955, the
Respondent employed 137 persons at its plant.
Walter Beachler is the Respondent's president and treasurer. His two sons, Robert
and Donald, hold supervisory positions at the plant. Robert is superintendent of the
display department. Donald is superintendent in the commercial department.
Dorsie Childers and Ellison Jeffries, representatives of the Union, began an or-
ganizational campaign among the Respondent's employees on May 25, 1955, by dis-
tributing leaflets and membership application cards to employees as they were leaving
the plant in their cars by two exits on Union Road, referred to in the record as the
"north" and "south" gates. The distribution took place at the end of the workday, or
at about 4:30 p. m.
Shortly before quitting time on May 26, 1956, all employees were assembled
in the plant cafeteria. Walter Beachler made a speech to them in which he referred
to the Union.
On May 27, 1956, Childers and Jeffries again returned to the plant at about quitting
time in order to circularize the employees. The north gate was blocked by a vehicle,
and all employees left the property by the south gate. A deputy sheriff, who had been
summoned by Walter Beachler, was present. The deputy sheriff, together with
Beachler and his sons, directed the traffic in such a manner that the employees'
cars left the Respondent's property without stopping for Union Road. As a result,
Childers and Jeffries were unable to distribute their leaflets to the employees.
UNITED FIREWORKS MFG. CO., INC. 893
Thereafter, they did not return to the plant, but continued the organizational cam-
paign by mail and by visiting employees at their homes.
On May 31, 1955, employee John Balonier was discharged, allegedly for
absenteeism.
The Union held a meeting for the Respondent's employees at the Dayton YMCA
during the evening of September 8, 1955. Robert Beachler allegedly had this meeting
under surveillance. Starting on September 9, 1956, the employees named in the
complaint were either laid off or discharged.
B. Interference, restraint, and coercion
As related above, Childers and Jeffries distributed leaflets and membership appli-
cations at the plant on May 25, 1956. Shortly after the start of work the next day,
Balford (Tobey) Vance, supervisor in the sparkler division of the commercial depart-
ment, spoke to employee John Balonier. Vance asked him if he had received a
union application card. Balonier replied that he had. When Vance asked if he had
the card with him, Balonier replied that he did not. At about noon that same day
Walter Beachler spoke to Balonier. Concerning this conversation, Balonier testified
credibly, "Mr. Beachler asked me if I got one of them Union cards. And I said,
yes. He asked me where I got it. He said, `Did you get it at the machine?' I
said, `no, it was passed out as we went out the gate on the road.' And he asked me
what I done with it. And I told him I had it at home. We'll, he asked me to
bring it in. . . And he said he would find out who signed the Union cards and sent
them in, and they would be gone." 1 Vance's and Beachler's interrogation of
Balonier and the latter's threat of reprisal against employees who signed union
application cards are found to be violative of the Act.
Employee Frances Martin testified credibly "a few days after" May 25, 1955,
she asked Vance what he thought about the Union, and that "he told me that anybody
that signed the cards, it was just like cutting their own throat, because Mr. Beachler
could open the place twice a year and still carry his business on." Since Vance's state-
ment contains a threat of reprisal, it is found to constitute interference, restraint, and
coercion.
Employee Elizabeth Owens testified credibly that on May 26, 1955, Fred Cairo,
foreman in the display department, told her and other employees to report to the
cafeteria; and that he told them that if they were not going to sign the union applica-
tion cards, Walter Beachler wanted them to give them to him .2 In my opinion, Cairo's
statement constitutes an illegal type of interrogation; and as such is found to be vio-
lative of the Act. The statement implies that those employees who did not turn in
their cards to Beachler would be suspected of having signed and mailed them to the
Union.
Owens also testified that she had a conversation about the Union with Robert
Beachler on May 26, 1955. In this connection, she testified that Beachler told her
"that they had to get padlocks, and they would close the gates, and that he couldn't
have it [the Union] in." Beachler admitted having a conversation with Owens
about the Union, but denied telling her that the plant would be closed if the Union
organized it. He testified, ". . . she came to me and asked me what I thought of
the Union. I told her that it was her constitutional right to do what she wanted;
but however I felt that due to the highly seasonable business, and the inability to
proceed due to financial difficulties which would arise if the Union had gotten
in . . . and since no other firework's organization was unionized, that with the
financial demands the Union would make on the organization, we would be unable to
continue the business."
1 The Respondent urges in its brief that Balonier should not be credited since he testified
that he had been drinking when he gave an affidavit to a field examiner of the Board.
This testimony was elicited when the General Counsel attempted to refresh Balonier's
memory on matters other than the above. While it was apparent that Balonier, as a
witness, became hostile to the General Counsel's case in some respects, I credit the above
testimony.
2 Cairo denied the statement attributed to him by Owens. His denial is not credited.
He testified that he had a conversation with Owens about the Union ; that she asked
him, "What would happen if the CIO got in here?"; and that he replied, "Through past
experience we had at United Fireworks, we would have to close up on account of they
couldn 't afford to pay the wages they would ask for , . . . either Mr . Beachler will have
to cut 50 % or close probably the place down entirely . . . . I come from the east, and
all the factories in the world would have to do the same thing. This is something we
don't have to have. . . . I have respect for the CIO . . . . I was an Organizer myself
during the War."
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the testimony of Robert Beachler hereinafter is discredited, I do not
discredit his version of the above conversation. Owens did not deny that she
initiated the- conversation. Beachler's remarks concerning the possible economic
necessity of discontinuing the business clearly were susceptible to misinterpretation
by Owens. Further, the conversation is not alleged in the complaint as a violation.
Accordingly, I make no findings in this connection.
At about 4:30 p. in. on May 26, 1955, the employees were assembled in the
cafeteria in order to hear a speech by Walter Beachler. Concerning this talk, Owens
testified, "Well, he said that he heard these cards had been passed out, and that he
couldn't let the Union come in; he couldn't afford to; that he had to lock the doors;
that he had been working so many years, and that he had never had anyone tell
him how to run his business, and he never intended to; and that he would have
to close the gates. He did the best he could for us. He helped his people. . . .
he did say he had to borrow money to go on, and he felt like he couldn't pay any
more; that he meant it-he would close the doors-the gates."
Employee Emma Banks testified, ". . . Mr. Beachler, he said, well, he just had
a few words to say, but he just meant what he said, that he had run his business
all these years without anybody telling him what to do or how to do it, and he
couldn't afford to have a Union come in there and tell him what he could do, and
before he would have somebody come in and tell him what to do, why, he would
close it down."
Concerning Beachler's speech, employee Catherine Hines, testified, "he stood up
on a chair and he said that he had operated the plant for a great many years
without a Union, and that he wouldn't have one there, and before he would he
would close it down before he would let a Union come in. . He said that he
would rather stand on a corner and sell papers or anything before he would let
someone from the Union tell him what to do."
Employee Johnnie Scott testified, "He [Beachler] said that he had been running
the plant for so many years, and that he wasn't going to let no Union come in, and
before he would let the Union come in he would close the gates up, and he said,
too, that he was paying us top wages, and it was a decent place to work. . . . He
said he had one of them Union cards in his hand and he said, `I know some of
you got these cards at the gate last night.' . . . He said he had to borrow money
every week. We may think he is making money out at the place, but he has to
borrow money every week from the bank."
With respect to Beachler's speech, employee Frances Martin testified, "he said
before he would let the Union come in he would close down the place; that he had
a hard time building up his business, and that he would sell papers before he
would . . . let his business be torn down."
Employee Rhoda Webb testified, "he [Beachler] said he was going to make it
short; that we all knew what it was about. He said that the Union was trying to
come in, and before he would have it in he would close down; and he told about
borrowing money. . he said he would sit on the corner and sell papers again
before he would work under a Union. He had run his business so long, that he
would not have any Union in."
Walter Beachler denied that he told the employees that he would close the
"doors" if the Union organized the plant. He testified to the effect that he reviewed
the Respondent's growth, its financial problems and the improvements in safety
measures and employee benefits. He at first testified, "I also told them . . . I
understood there was a movement under foot to unionize the United Fireworks
Company. And I said inasmuch as this business is very highly competitive and
seasonable, the company cannot afford any undue hardships put on them, and if
that was the case, and the way they seen it, we would have to close our doors."
He later testified, "I told them that if the Union did come in, and they made any
undue hardships on us, we would have to close the doors." 3
3 An affidavit of Beachler, dated November 11, 1955, was received in evidence. Con-
cerning the speech, the affidavit states as follows :
Affiant states that during the latter part of May, 1955 he called a meeting of the
employees of United Fireworks Mfg. Co., Inc. in the new recreation hall at the plant
site, 840 S. Union Road, Dayton, Ohio for the purpose of discussing with said em-
ployees some of the problems of management of the company as they affected said
employees ; that at said time and place Affiant related to the employees the diligent
efforts being put forth by management in an effort to withstand the keen competition
in the fireworks manufacturing business in order that the employees might have
steady employment ; Afant states that he pointed out to the employees the favorable
facilities and working conditions that they enjoyed at United Fireworks Mfg. Co.,
Inc. as compared to other fireworks manufacturing companies ; Affiant further
UNITED FIREWORKS MFG. CO., INC. 895
Ruth Wall, supervisor in. the sparkler room testified concerning the speech, "Mr.
Beachier made the statement that if the Union came in he couldn 't afford to keep
his doors open."
I believe and find that Walter Beachler's speech contained statements substantially
the same as those testified to by Owens, Banks, Hines, Scott , Martin and Webb. As
to be expected, these witnesses remembered different parts of the speech. However,
as a whole, their independent recollection of the speech is remarkably similar.4
Beachler's original testimony is vague. As the General Counsel points out in
his brief, "It is easily susceptible to the interpretation that the `undue hardship' the
company could not afford was the mere choosing of a union ; and the following
phrases, `if that was the case' and `the way they seen it,' could well mean that if they,
the employees, saw fit to choose a union, Beachier would close the doors." Regard-
less of this interpretation, it is my opinion that such remarks do not contain the
requisite explanation to make them a prediction of economic consequences rather
than a threat of reprisal. However, when questioned by Respondent's counsel as to
what he said about closing the doors, Beachler clarified his original testimony. He
then testified, "I told them that if the Union did come in, and they made any undue
hardships on us, we would have to close the doors." It is noteworthy that the above
testimony is in conflict with that of Ruth Wall, and differs materially from the version
of the speech contained in Beachler's affidavit.
In accordance with the testimony of the witnesses for the General Counsel, I
find that Walter Beachler told the employees that the plant would be closed if they
selected the Union as their representative . It is found that this threat of reprisal
is violative of Section 8 (a) (1) of the Act.
Childers and Jeffries appeared in front of the Respondent 's plant at about 4 p. m.
on May 27, 1956. At about 4:15 p. m. Urban Young, supervisor of the commercial
department, went to employee Raney Webb at his place of work and told him, "I
want you to go down to the parking lot and help keep the Union out; they are
coming back.. . I'll get you a club if you want it." Raney replied that he
did not need a club. Webb testified credibly that when he reached the parking lot,
he found the north gate of the plant blocked by a company truck; that he met
Walter Beachler who told him, "This thing is getting to be a mess. You get around.
I want you to find out who is behind this thing, and why"; that he replied, "I couldn't
find out nothing about it"; and that following Beachler's orders he directed the
employees to leave by the south gate.5
It is found that Beachler referred to the Union when he mentioned "this thing,"
and that his request that Webb engage in surveillance was violative of Section 8 (a)
(1) of the Act. No finding is made with respect to Young's statement to Webb since
it is not alleged to be a violation of the Act in the complaint.
Concerning an attempt to distribute union leaflets at the plant on May 27, 1955,
Childers testified, in substance, that he and Jeffries arrived at the plant at about
4 p. m.; that while waiting for the employees to leave the plant, he noticed a deputy
sheriff enter the Respondent's property; that about 4:25 p. m. he went to the south
gate and found the deputy sheriff stationed there; that while talking to the deputy
sheriff, he noticed Walter Beachier and his sons "coming in pretty much of a hurry
down the driveway from his office"; that he then asked the deputy sheriff if it was
his intention to prevent the distribution of the union leaflets; that the deputy sheriff
replied that it was not; that when Walter Beachier got within hearing distance, the
deputy sheriff pointed his finger at him (Childers) and said, "I'll tell you this. I'll
stated to the employees that he heard that there was an effort being made to organize
them by some Union and Affiant clearly and frankly stated to the employees at said
time and place that such a consideration and decision was solely their business ;
Affiant stated further to the employees that management had been doing everything
possible within the margin of benefit enjoyed by the company to give them every
advantage and favorable working condition possible for their welfare and safety.
Affiant further stated to the employees that the problems of management in the
past several years had been weighing heavily upon his shoulders, most of which were
brought about by the keen competition and handicaps in the fireworks manufacturing
field to the point where Affiant had given serious consideration to the sale of said
business.
None of these witnesses overheard the testimony of any of the others, since at the
outset of the hearing the Trial Examiner granted the Respondent ' s motion for a separa-
tion of witnesses.
6 Beachler did not deny specifically the above remarks attributed to him by Webb.
However, he denied generally that on May 27, 1955 , he requested employees to engage in
surveillance to ascertain which employees were active on behalf of the Union.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take care of the situation, see"; that when he attempted to pass leaflets to the
employees as they left the Respondent's property in their cars, Walter Beachler pushed
him and used obscene language; that when Beachler threatened him with physical
harm, his sons said, "Yes, if he isn't big enough, all three will do it"; that at the
time Beachler had a revolver "in his right front . . . pants pocket"; that the deputy
sheriff directed the employees' cars "on through the -stop signs" at a rapid speed
so that he was unable to distribute the leaflets; that the stop signs faced the Re-
spondent's property where its driveway entered into Union Road; that the north
gate was blocked by "one truck and one jeep parked acrossways of the entrance";
that Jeffries had stationed himself at the north gate; that when no employees came
out of the north gate, Jeffries went to the south gate; and that Walter Beachler then
made a statement concerning Jeffries which contained abusive language.
Jeffries testified that he remained at the north gate for the purpose of distributing
leaflets; that the north gate was blocked by a truck and a jeep; that no employees
came out of that gate; that "there was a confusion up at the south gate between
Dorsie Childers and the employer"; and that when he went to the south gate, Walter
Beachler called him obscene names and threatened him.
Deputy Sheriff Blair Baker testified that on May 27, 1955, he arrived at the
Respondent's property at about 4 or 4:15 p. m.; that he went into the office and
talked to Walter Beachler; that he then stationed himself across Union Road and
opposite the south gate of the plant; that Childers came to him and asked if it was
all right to distribute pamphlets; that he replied to the effect that he did not care
what Childers did with the pamphlets; that Childers did not menace him in any way
or interfere with the performance of his duties; that the employees started to leave
the plant at about 4:30 p. m.; that Walter Beachler with "one or possibly two
gentlemen" came to the south gate; that Beachler and Childers began talking with
voices that "sounded angry"; that he did not see Beachler and Childers push, shove, or
strike one another; that he did not see a gun in Beachler's pocket; that he did not
watch them "closely"; and that it took about 10 minutes for the employees to leave
the plant.
Walter Beachler testified, in substance, that as a result of an "anonymous tele-
phone call" which he received during the morning of May 27, 1955, he called the
sheriff's office and requested that two deputy sheriffs be sent to the plant; that when
Deputy Sheriff Baker alone appeared, he ordered the north gate closed; that he
saw "Childers getting in an argument, or it looked like it was an argument . with
Deputy Baker"; that Baker "had his finger pointed under Childers' nose"; that "by
that time I run out of the office and run towards the road myself because . the
employees was leaving the factory"; that he stationed himself on the southeast
corner of the intersection of the Respondent's driveway and Union Road; that his
son, Robert Beachler, was on the northeast corner of said intersection; that "The
employees started leaving, and I kept motioning them to come, whichever went to the
north my boy took care of, and the Deputy, and together with all three of us we got
the cars out of there safely"; that when the employees were starting to leave the plant,
he "hollered" at Childers "to get out of the road a couple of times"; that "after
about a half a dozen cars left this man Childers left"; that "another fellow"
(Jeffries) came down the road but stopped about 50 feet away; that before leaving
Childers told him, "You of a , you win this time, but the next time
I will come back and close the plant"; 6 that it took 7 or 8 minutes for the employees
to leave the plant; that he was at no time within arm's reach of Childers; that he
did not make the statements attributed to him by Childers and Jeffries; that he was
not armed with a gun at the time; 7 and that he did not touch Childers at any time .8
e Childers denied the remark attributed to him by Beachler. Childers testified that he
told Beachler something to the effect, "You win this time-there will be other times."
The above testimony of Beachler conflicts with a statement in his affidavit, which will be
set forth hereinafter. Robert Beachler testified that Childers said, "You win this time, but
I'll be back . . . I'll get you the next time."
>
7 Beachler exhibited at the hearing a case which was attached to his belt and in which
he carried a combination of eyeglasses and hearing aid. The case had the appearance
of a pistol holster. He testified that he was wearing this eyeglass case at the time in
question.
8 In his affidavit Beachler gives a different version of the above incident. In this
connection his affidavit states as follows :
Affiant further states that during the latter part of May, 1955 he was called on
the telephone by an anonymous individual who advised him that there was going to
be some Union trouble that afternoon when the employees left work ; Affiant states
that he thereupon called the office of the Montgomery County Sheriff, Bernard
UNITED FIREWORKS MFG. CO., INC. 897
Robert Beachler gave substantially the same testimony as Walter Beachler con-
cerning the incident on May 27, 1955. He testified that Donald Beachler was not
present at the south gate. Donald Beachler testified that he blocked the north gate
of the plant by parking a truck across the driveway; that he remained at the north
gate until all the employees had left the plant; and that he was unable to see anything
that occurred at the south gate.
Employee Johnnie Scott testified concerning the incident on May 27 as follows:
Well, when we got to the south gate Mr. Walter Beachler and Don Beachler
and Bob Beachler and Mr. Childers was down on the gate, and there was
another man, but I don't think I'd seen him. They was down on the south gate,
and the Sheriff was there, and Mr. Walter Beachler and Mr. Childers-Mr.
Beachler was pushing on him . . . and when we got ready to go through,
well, Bob was telling us to hurry on through, and my husband told him he
couldn't come through because Mr. Beachler was standing in his way.
Employee Lucille Davis testified, in substance, that on May 27 she walked out
the south gate since she was unable to locate her "ride"; that Walter Beachler,
Robert Beachler, the deputy sheriff and "another man" were at the gate; that she
did not see any pushing or shoving going on between any individuals; and that she
did not hear any profane language. On cross-examination, however, Davis testified
that although she and the other employees clocked out together, she did not notice
any cars leaving through the south gate; that the only car that she saw was that of
the deputy sheriff which was parked on Union Road on the opposite side of the street
from the plant entrance; that "a few" employees might have left the Respondent's
property before she got to the gate; and that the unidentified man was "across the
street."
I credit the testimony of Childers, Jeffries and Scott insofar as the above incident is
concerned. Baker's testimony corroborates that of Childers to some extent. He
testified that while Beachler and Childers were talking, their voices "sounded angry,"
and that Beachler was accompanied by one "or possibly two" men. Although Baker
testified that he did not see Beachler push or strike Childers, his testimony shows
that he was not watching them "closely" and that cars were passing between him
and them.
Walter Beachler's testimony conflicts with the statements in his affidavit. He
testified that Baker "had his finger pointed under Childers' nose." In his affidavit
he states, "that affiant saw said purported Union organizer threaten the deputy by
shaking his finger under his nose and causing the deputy sheriff to retreat several
steps and interrupted the deputy's control of the traffic situation." During cross-
examination he denied seeing Baker "retreat several steps." It is noteworthy that
Baker testified that Childers did not threaten him or interfere in the performance
of his duties. Further, the evidence clearly shows that the employees' cars had not
started to leave the Respondent's property when Childers talked to Baker. Beachler
continues in his affidavit, "that thereupon affiant proceeded to the front gate of the
plant where the deputy was in charge and up-braided said purported Union organizer
for interfering with the deputy on duty." This statement tends to confirm Childers'
version of the facts. However, in his testimony Beachler contradicted the statement
Keiter, and requested that a deputy or deputies be assigned to his plant that after-
noon to prevent any possible disturbance and endangering the lives of his employees
and property ; that the office of the Montgomery County Sheriff dispatched Deputy
Baker to the plant site ; that Deputy Baker was directing traffic from the plant out
on to Union Road when Affiant saw him accosted by an individual pointed out to
Afiiant as a Union organizer ; that Affiant saw said purported Union organizer
threaten the deputy by shaking his finger under his nose and causing the deputy
sheriff to retreat several steps and interrupted the deputy's control of the traffic
situation ; that thereupon affiant proceeded to the front gate of the plant where the
deputy was in charge and up-braided said purported Union organizer for interfering
with the deputy on duty; that affiant thereupon proceeded to assist the deputy in
eliminating the traffic problem and affiant thereupon returned to his ofce ; affiant
further states that he did not touch the person of said purported union organizer or
any other purported union organizer nor did he threaten any such person in any
manner whatsoever ; Affiant further states that Deputy Baker of the Montgomery
County Sheriff's office has stated to Affiant that he is willing to testify or give an
Affidavit to this effect; that as Affiant departed from the front gate to return to his
office the purported union organizer hurled a taunt at Affiant to the effect that "You
win this time but I'll get you later."
450553-58-vol. 118-58
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in his affidavit by denying that he "up-braided" Childers. He testified that he did
not say anything to Childers except to tell him to "get off the road."
It is clear from Davis' testimony that she was not present at the south gate during
the material period of time. She testified that she did not see any cars, either on the
Respondent's driveway or on Union Road, except that of Baker which was parked on
Union Road. She also testified that when she was at the gate only Walter Beachler
and Robert Beachler were present, and that an unidentified man (apparently
Childers) was "across the street." Under the circumstances, her testimony in this
connection is valueless.
The evidence conclusively shows that the Respondent's conduct on May 27, 1955,
was designed to prevent the Union's representatives from distributing pamphlets
to its employees. Since the Union's representatives were not on the Respondent's
property, they had a right to distribute without interference. Accordingly, it is
found that the above conduct of the Respondent constitutes a violation of Section
8 (a) (1) of the Act.
Raney Webb had a conversation with Young at sometime during the early part
of July 1955. In this connection Webb testified credibly to the following:
He said, well, the Old man went down and found out everyone that sent in
(union) cards. He said it cost a lot of money to do it, but he found out any-
way, and they wasn't going to stay. And he said John Balonier and Charlie
Justice went on account of it, and the rest would, too.9
It is found that Young's remarks to Webb constitute interference, restraint, and
coercion.
As will be hereinafter related, Rhoda Webb was discharged by the Respondent
on September 9, 1955. She filed a claim for unemployment compensation; and
a hearing on the claim was held at sometime during February or March 1956.
Childers represented Webb at the hearing; and several employees, including Eula
Byrd, were present.
During the afternoon of the day of Webb's hearing, employees Eula Byrd, Hattie
Craft, Anna Marks, and Rose Gates were talking together. Craft testified credibly
that Gates asked Byrd if "the Little Bear" was present at the hearing; that the em-
ployees referred to Supervisor Ruth Wall as "Little Bear"; that as Gates asked
the question, Donald Beachler entered the room; that Beachler said, "That Little Bear
is going to get you all in trouble"; that Gates said, "We're not talking about no
Union"; that Beachler replied, "Yes, you all are, . because only one person down
to the Union meeting looks like a little bear, and that is the Union man"; that
Beachler then told them that it would be best for them to go to a meeting of the
"Independent Union" on Tuesday night and "get together, because if the CIO Union
comes in the Old Man was going to close down . had everything prepared for
the closing down"; that Beachler then asked them if the Union could pay them their
salary; and that when replied "no," he said, "Well, you girls had better get together,
then."
It is found that the above threats of reprisal if the employees selected the Union
as their bargaining representative, are in violation of Section 8 (a) (1) of the Act.
C. The discharge of John Balonier
Balonier was an employee of the Respondent for about 2 years, and worked under
the supervision of Balford Vance. At the time of the hearing herein, Balonier was
69 years of age.
As related above, the Union's representatives distributed membership application
cards in front of the plant on May 25, 1955. Balonier received one of these cards.
He signed it and mailed it to the Union on the same date. Also as related and
found above, Vance and Walter Beachler questioned Balonier about the union card.
Beachler asked what he had done with the card. When Balonier told Beachler
that he had the card "at home," the latter told him to "bring it in."
During February 1954, Balonier's wife became paralyzed when she suffered a
stroke. Thereafter, and until his employment was terminated, Balonier was called
home from work every week. In the beginning he absented himself from work for
this reason twice a week. Later this increased to three times each week.
The Respondent discharged Balonier on May 31, 1955, allegedly for absenteeism.
He received a discharge slip at the time. This slip gives the reason for discharge as,
"Off too much. Does not always report in when off. Can never be sure when he'll
be in anymore."
9 As will be hereinafter related, Balonier was discharged on May 31 , 1955. Young
.denied the above statements attributed to him by Webb. Ills denial is not credited.
UNITED FIREWORKS MFG. CO., INC. 899
Donald Beachler testified that Balonier was discharged because, "Off too
much. . . . His hours per week was very little"; that he discussed Balonier's ab-
senteeism with Walter Beachler and "on several occasions" with Vance; that he
recommended that Balonier should be terminated; that Balonier had been warned
about his absenteeism; and that Walter Beachler made the final decision to discharge
Balonier. Neither Walter Beachler nor Vance testified concerning Balonier's
discharge.
The General Counsel urges that Balonier's absenteeism was merely a pretext for
his discharge, and that his absences suddenly became intolerable when he failed
to follow Walter Beachler's direction to turn in his union card. In support of this
contention, the General Counsel points out Young's statement to Webb during July
1955, to the effect that Balonier's employment had been terminated because of the
Union.
While the discharge is not without suspicion, I disagree with the above conten-
tion, and find that the General Counsel failed to sustain the burden of proving that
the Respondent discriminatorily discharged Balonier. The admitted facts show that
Balonier was an unsatisfactory employee due to his absences from work. Donald
Beachler testified without contradiction that Balonier was warned concerning his
absenteeism. Further, I am unable to believe that Walter Beachler would have
discharged him without first inquiring concerning his failure to present the card.
Balonier had told him that he had the card at his home. It does not appear reason-
able that Beachler would have concluded after his first request that Balonier had
mailed the card to the Union. His failure to produce it could be ascribed to any
number of reasons other than the above. Accordingly, it will be recommended that
the complaint be dismissed insofar as the discharge of Balonier is concerned.
D. Surveillance of the union meeting
The Union held a meeting for the Respondent's employees at the YMCA on
Fifth Street in Dayton, Ohio, during the evening of September 8, 1955. It noti-
fied the employees of the meeting by mailing a circular letter to them. Employees
Rhoda Webb, Raney Webb, Omeda Banks, Marvin Banks, Lottie Daniels, Sterling
Banks, Emma Banks, and Glenna Cooley attended the meeting. John Balonier,
who had been discharged on May 31, 1955, also was present.
Balonier testified that he got to the YMCA at about 6:30 or 7 p. m. on September
8; that he wanted outside of the building "until I seen somebody come along, that
I knowed"; that while standing in front of the YMCA he saw Robert Beachler "just
across the street" in a car; that he did not see anyone with Beachler; and that it was
"still light" at the time.
Employee Catherine Hines testified, in substance, that she drove her car to the
union meeting; that she was accompanied by employee Rose Gates; that it was
about 8:30 p. m. and "was dark enough for headlights" that she had her head-
lights turned on; that as she turned a corner her headlights swept a car which was
parked on a corner alongside a lighted drugstore; that this car was facing and
across the street from the YMCA building; that she saw Robert Beachler and an-
other man sitting in the car; that she drove around the block and went past the
parked car again; that she saw Beachler "still sitting there"; that she then parked
her car at a gasoline station, facing toward the car in which Beachler was sitting;
that she remained in her car and from this position she was able to observe Beach-
ler's car; that the union meeting lasted until about 9:15 p. m.; that employee Glenna
Cooley was the first person to leave the meeting; and that when Cooley got on a
bus, Beachler's car left the vicinity. Hines further testified, "The next morning after
the Union meeting was held, Ruth Wall came into my building and she asked me
what I was doing on Fifth Street last night. . . . And I told her that I was going
to a club meeting, and she told me I had been seen down there. And I told her I
knew it because I had seen Bob Beachler down there." 10
Robert Beachler denied that he was in the vicinity of the YMCA building on the
night of September 8, 1955. He testified, in substance, that he had dinner at home;
that he then went back to the plant; that Walter Beachler and Leo Kidner, a custo-
mer, arrived at the plant at about 7 or 7:30 p. m.; that Walter Beachler left after
about 15 minutes in order to visit a doctor; and that he and Kidner talked until about
9 p. m., at which time they left the plant.11
If the General Counsel had produced only one witness to testify to Robert
Beachler's presence near the union meeting on the night of September 8, I might
10 Wall testified that she did not "remember" having the above conversation with Hines.
71 Kidner did not appear at the hearing as a witness.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
be inclined to believe that it was a case of mistaken identity. However, here both
Balonier and Hines testified that they saw Beachler on the night in question. Fur-
ther, Hines' conversation with Wall the following day indicates that it was not a
case of mistaken identity. Wall told Hines that she had been "seen" on Fifth Street,
and made no comment when Hines mentioned Robert Beachler. Accordingly, I
credit the above testimony of Balonier and Hines,. and find that Robert Beachler
engaged in surveillance of the union meeting on the night of September 8, 1955. It
is found that such conduct on the Respondent's part was violative of Section 8 (a)
(1) of the Act.
About 2 weeks after the union meeting, employee Emma Banks had a conversa-
tion with Supervisor Wall. Concerning this conversation, Banks testified, in sub-
stance, that Wall asked her what she knew about the Union; that she replied, "I don't
know . . . I'm about to get in trouble trying to find out"; that Wall said, "You are
still in trouble. . . . It was all I could do to keep from laying you off last week";
and that after some further conversations about a layoff,12 Wall told her that she
thought she was wanted at "the office to apologize for going downtown that night."
Wall admitted having a conversation with Banks. She testified, "The only con-
versation I had with Mrs. Banks was about the Union and we were talking gen-
erally. There was no discussion of anybody getting fired or laid off or anything to
that effect. It was just a general conversation. And Mrs. Banks was telling me why
she went to a Union meeting." Wall further testified that Banks volunteered the in-
formation about the union meeting, and denied the remarks attributed to her by
Banks. During cross-examination when asked to relate what she had said, Wall
answered, "To tell the truth, I don't know what was said, except she was explaining
why she went down there."
I credit Banks' version of the above conversation; and find Wall's remarks to be
violative of Section 8 (a) (1) of the Act.
E. The discharge of Rhoda Webb
Rhoda Webb was employed by the Respondent for approximately 22 months be-
fore her discharge on September 9, 1955. Her first job was in building 2, gluing on
tubes. Later she was transferred to the sparkler building, where she packed
sparklers for about 4 months. Upon the recommendation of her supervisor, Ruth
Wall, she was transferred to operation of the box machine. She remained on this
job for about 8 months and until her discharge.
Rhoda Webb and her husband, Raney Webb, were active union adherents. They
both signed union application cards on May 26, 1956. Childers, the Union's repre-
sentative, visited their home on 2 or 3 occasions. Rhoda Webb distributed union
cards to other employees at the plant. As related and found above, both Rhoda and
Raney Webb attended the union meeting on September 8, 1955, which was kept
under surveillance by Robert Beachler.
At 4:30 p. m. on September 9, 1955, Rhoda Webb was told by Wall that she was
wanted in the office. When she arrived at the office, Walter Beachler discharged
her and requested her to sign a release slip, which stated the reason for discharge as,
"Leaves machine running to walk around and talk to other employees. Was told
about this many times but continues to do it. When Supervisor told her about it
she got very angry." Webb told Beachler, "That's all a lie. I refuse to sign."
Wall testified, in substance, that Rhoda Webb was "a good worker. The only
objection was she would leave her machine"; that she did not know about Webb's
discharge or recommend it; that she saw Webb away from her machine at least about
six times; that she did not reprimand or warn Webb for leaving her machine; and
that "several times" she reported to Donald Beachler that she had seen Webb leave
the machine unattended.
Albert Wells testified that he brought boxes and sparklers to the employees in
the sparkler building; 13 that there was a company rule which required Webb to be at
her machine "all the time"; that he saw Webb away from her machine on 2 occa-
19 Banks' testimony at this point is meaningless . The General Counsel moved to correct
the record with respect to this portion of Banks' testimony . The motion was denied
since the Respondent raised an objection and since the proposed correction did not agree
with the Trial Examiner's recollection.
13 Wells testified that he became the supervisor over the sparkler building during
September 1955. His testimony is vague and contradictory in this respect. The record
shows, however, that Wells had some supervisory authority over the sparkler packers
before Webb's discharge.
UNITED FIREWORKS MFG. CO., INC. 901
sions; that on the first occasion Webb was packing sparklers at a table which was
about 2 feet away from her machine ; that he did not say anything to Webb but
reported the incident to Donald Beachler ; that on the next occasion Webb was at
the second table away from her machine ; that Donald Beachler entered the building
at the time and asked Webb why she was away from her machine ; and that this
incident took place about a month before Webb's discharge.14
Balford Vance , supervisor in the sparkler division , testified, "I would go [to the
sparkler building ] maybe once a day, sometimes , maybe two times a day, some-
times maybe two or three times a week, and all the times I went over there
[Webb] was away [from her machine]. ... She was at the tables with the
other girls. . . . Sometimes she was just talking ; sometimes she was putting sparklers
in the cartons."
Employee Lucille Davis testified that Webb helped her pack sparklers "every
day"; that Webb also helped other employees pack sparklers; that Webb left her
machine operating and unattended at such times ; that she heard Donald Beachler
tell Webb not to leave her machine "running at any time unattended"; that on
another occasion when Webb "was looking over the building," she heard Beachler
tell Webb that he had run boxing machines and could not run one while looking
"around all over the building" ; and that neither of these incidents was "close"
to the time of Webb's discharge.
Fanny Anthony testified to the effect that she saw Webb leave her machine
running and unattended "as often as she wanted to"; that this occurred "every 15
or 20 minutes. No sooner she'd go and put new stuff on [box material], she
would leave [ the machine ] and go back and . . . pack sparklers"; that she heard
Donald Beachler, Wall and Wells tell Webb that she should "never leave that
machine"; 15 that Webb was told of this rule "at least twice" by Beachler, "several
times" by Wall and once by Wells; that she was not sure of the dates of these
conversations ; and that when Beachler spoke to Webb, "it wasn't too long .. .
maybe two or three days before" her discharge.
Donald Beachler testified , in substance, that he caught Webb away from her
machine "20 or 30 times "; that at such times Webb either was talking or helping
other employees pack sparklers ; that about 8 or 10 times he told Webb that she
was required "to stay at her machine at all times"; that "about one of the last times
I caught her away from the machine I told her I'd probably have to build a partition
around her . . . to keep her in"; that Wells, Vance, Wall and his father, Walter
Beachler, reported to him that Webb was leaving her machine unattended; that
Webb was discharged for "being away from her machine too often, causing break-
down , also helping girls pack sparklers , talking to the girls, which was against
company rules" ; that he reminded the employees about the no-talking rule about
5 or 6 times ; 16 that he only spoke to them about talking "when it got too loud";
that it was against company rules for an employee to help another employee pack
sparklers "because they were on piecework"; that on several occasions there were
breakdowns on Webb's machine caused by her leaving it unattended; that it was his
decision to discharge Webb; that at about noon on September 8 he discussed Webb's
discharge with Walter Beachler, telling him that her helping employees pack
sparklers and being away from her machine was "getting more frequent"; that
within a week or two before September 9 he consulted with Wall "3 or 4 times"
about discharging Webb; that Wall "figured it would be a good idea" to let Webb
go; 17 that he also discussed Webb's discharge with Wells on at least 2 occasions
within 2 or 3 days before September 9; and that Wells also agreed to Webb's
discharge.
Walter Beachler testified that at about 10 a. in . on September 9 he went to the
sparkler building ; that for 2 or 3 minutes he watched Webb help another employee
pack sparklers while her machine was running and unattended ; that he then went
to the office and arranged for Webb's discharge; that on other occasions he had
seen Webb packing sparklers and talking while away from her machine; that
"talking to the other girls who were packing sparklers . was strictly against the
rules" ; that he had reported Webb's conduct to Donald Beachler "several times";
14 Wells admitted that he gave an affidavit to the Board in which he stated, "that
almost daily [ affiant ] observed the said Rhoda Webb leave that sparkler carton making
machine unattended for various periods of time. . . .
15 This testimony is contrary to that of Wall and Wells.
15 On cross -examination Beachler testified that be warned the employees as a. group
approximately 10 times.
14 As related above, Wall testified to the effect that she did not recommend or know
about Webb 's discharge.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "I have talked to Dutch [Albert] Wells, and . to Ruth Wall about it, and
they told me it was a common occurrence"; and that "Just before [Donald Beachler]
left on his vacation, which was on, I believe September the 8th, he told me that
he was still having trouble with Rhoda Webb."
Lucille Davis, Fanny Anthony, Bertha Demming, and Eula Byrd, called as
witnesses by the Respondent, all testified to the effect that there were rules against
talking and helping other employees pack sparklers. Much of the testimony
concerning these rules is conflicting and contradictory, not only as between the
above witnesses themselves but also as between them and the supervisory employees
involved. For example, when asked if there was a company rule against talking,
Vance replied, "No, sir. They could talk any time." For reasons hereinafter
stated, I do not find it necessary to detail this testimony herein.
Rhoda Webb admitted that she talked to other employees and helped them pack
sparklers. She testified that about 2 or 3 months before her discharge she was
warned by Donald Bleacher about talking and not attending to her machine. In
this connection she was questioned and testified as follows:
Q. All right. What did you say to Donald Beachler when he reprimanded
you about talking to the girls?-A. Well, I told him I could attend the machine
without looking at it all the time; that I could tell when it put out a bad box
by the sound of the machine, which I could do. He said, "Well, you must be
pretty good." . And I said, "Well, I'm that good. I can tell when it puts
out bad boxes." "Well," he said, "I always had to look at my machine." And
he cursed, and he said for me not to feel myself indispensable. And I said,
"I don't, but you haven't had anyone else to run it like I do."
Q. Did you get angry at Donald Beachler?-A. Yes, sir. I wasn't doing
anything to be reprimanded about, and I got angry.
Q. What else did Mr. Donald Beachler tell you when he reprimanded you
about talking to the girls on the job while they were counting sparklers?-
A. Well, he told me he was going to put me out in a building by myself.
Webb also testified that Donald Beachler instructed her to pack sparklers "when I
was available and had time," but not to help new employees who had not yet made
their production quota; that when she did help other employees pack sparklers, she
did not sit down but stood within 2 feet of the corner of her machine where she
could see it; that Wells brought sparklers to her machine; that after she had packed
the sparklers, Wells took them and gave them to the other employees; that she was
not paid for packing sparklers; and that her forelady, Ruth Wall, never spoke to her
about leaving her machine or talking to other employees.
The Respondent's alleged rules against talking and packing sparklers were not
posted. If the Respondent in fact had such rules, they were not enforced. The
record conclusively shows that all the employees talked, and the presence of
supervisors did not deter them. Over a long period of time Wall, Wells, and Vance
observed Webb talking and packing sparklers while away from her machine, but they
did not reprimand her. In my opinion, Webb's immediate supervisor, Wall, would
have reprimanded her if she had been violating any working rules. But according
to her own testimony, Wall did not do this. She merely reported to Donald Beachler.
It is apparent from the above testimony that there are a number of inconsistencies
and contradictions in the Respondent's case. Two are noteworthy. Donald
Beachler testified that it was his decision to discharge Webb, and that he talked
about it on September 8 with Walter Beachler. However, from Walter Beachler's
testimony it appears that Donald Beachler merely reported to him and that he made
the decision on September 9 after observing Webb at work. Donald Beachler also
testified that he consulted with Wall some 3 or 4 times about discharging Webb,
and that Wall agreed to her discharge. Wall testified that she did not know about
Webb's impending discharge or recommend it.
In conclusion, the credible evidence shows that for months Webb was observed
while talking and helping pack sparklers by her immediate supervisors; that they
did not reprimand her for it; that nothing out of the ordinary happened insofar as
her work was concerned immediately before her discharge; and that suddenly on
the day following her attendance at a union meeting, which was under surveillance
by Robert Beachler, Webb's work was found to be unsatisfactory and she was
discharged. Under the circumstances, I am convinced and find that violation of
the Respondent's alleged rules was merely a pretext for the discharge. In so
finding, I credit the above testimony of Webb. Accordingly, it is found that the
Respondent discharged Rhoda Webb on September 9, 1955, because of her member-
ship in and activities on behalf of the Union.
UNITED FIREWORKS MFG. CO., INC . 903
F. The discharge of Raney Webb
Raney Webb was employed by the Respondent for approximately 28 months
before his discharge on September 9, 1955. He worked as a drill press operator
under Foreman Urban Young. He was employed originally at $1.10 per hour, and
received three 5-cent raises thereafter.
At about quitting time on September 9, Webb was told by Young to go to the
office. When he arrived at the office, he was discharged by Walter Beachler.
Beachler gave him a release slip which stated the reason for the discharge as, "Will
not cooperate with foreman. Asked to be fired on Sept. 2." 18 Webb refused
Beachler's request to sign the slip.
Young testified, in substance, that Webb first worked under his supervision as a
"cherry bomb driller" for about 9 months; that Webb then was transferred "to the
hydraulic press building, where he pressed powder into tubes"; that he was removed
from that job after about 30 days because "he contracted powder poisoning"; that
Webb then worked on a temporary job drilling "triangle wheel blocks" and " cutting
cones"; that after working on this job for "a couple of weeks," Webb returned to
drilling cherry bombs; that he again was transferred to the powder press, but was
removed after about 30 days because of powder poisoning; that he then was trans-
ferred to maintenance; that Webb was drilling cherry bombs when his employment
was terminated; that Webb told him more than once that he was "not satisfied"
with his work; that Web "usually" asked him for a transfer "to any job" in order
"to get him out of cherry bomb drilling"; that he spoke to Webb on two occasions
about his being absent from work; that the first conversation took place in April
or May of 1955 when Webb was absent due to sickness; that about September 1,
1955, he asked Webb why he was absent from work; that Webb told him that he
was "out looking for another job"; that on September 2 "Mr. Webb asked me if
I would ask Don-he named Mr. Don Beachler-if he would fire him"; that on
the day that Webb was discharged he had a conversation with Walter Beachler;
that Beachler started the conversation by teling him that he had just been to the
sparkler building where he had some trouble with Webb's wife, Rhoda Webb; that
he then told Beachler that Webb had asked to be fired and that Webb was unable
to get along with the female employees on the cherry bomb job; that at about
4 p. m. that day Beachler told him to tell Webb "to punch his card and take it
directly to the office"; and that he was not told that Webb was to be discharged, but
had a "supposition" to that effect.
Walter Beachler testified to the effect that as he was returning from the sparkler
building where he had been observing Rhoda Webb he met Young; that after he had
told Young that he had been observing Mrs. Webb, Young told him that Webb
"was off without notice, requested to be fired, and that the man was dissatisfied
with whatever job he put him on"; that he then told Young, "If he requested to be
laid off, or be fired, we will accommodate him"; that he then went to the office
and arranged for Raney Webb's discharge; and that when Webb appeared in his
office, "he throwed his timecard on my desk and he said, `you - of a -, that's
just what I wanted, to get fired.' "
Donald Beachler testified that Raney Webb worked under his supervision; that
some female employees complained about Webb's "cussing" and that Webb did
not "drill the cherry bombs right"; that these complaints were raised about a month
before Webb's discharge; that about that same time Webb told him that he "had
quit" because he could not "get along with the cherry bomb girls"; that he then
caused Webb to be transferred to another job; that Webb worked only 16 hours for
the week ending April 30, 1955; that he worked only 16 hours for the week ending
September 10, 1955; that he did not give Webb permission to be absent from work
those weeks or at any other time; that he and Walter Beachler made the decision
to discharge Webb; that over a period of 21/2 or 3 months before September 9 he
"In a letter to the Board, dated September 19, 1955, the Respondent's attorneys gave
the following reason for Webb's discharge :
According to two foremen at the plant, Raney Webb, shortly after becoming em-
ployed by client, stated to his Foreman that he did not like the work he was doing and
that he was very unhappy over his job. He asked to be transferred to another job.
This was done to try to satisfy him. He was not satisfied with the job to which he
had been transferred. He was then given another job and then asked his Foreman
to fire him on September 2, 1955. The Foreman advised him that if he didn't like his
job, why did he not quit. He stated that he would not quit-that he wanted to be
fired. He was finally discharged on September 9tb for failure to do his work and
for lack of cooperation. He was irregular in employment.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussed Webb's discharge with Young "7 or 8 times"; that the discharge "was
agreeable" to Young; that he and Walter Beachler discussed Webb's discharge on
"4 or 5 occasions"; and that he decided to discharge Webb "for being off certain times
without reasons, and not getting along with other employees."
Vance testified that Webb worked under his supervision on two occasions; that
"the job he had when he left [cherry bomb drilling], they would run slack and
he'd come up there and work in his spare time in my place"; 19 that he was unable
to approximate the dates when Webb worked for him; that on the first occasion Webb
worked about 3 days; and that he had a conversation with Webb at the time in
which Webb made a statement to the effect that he did not like the work assigned
to him.
Webb denied that he told Young that he wanted to be discharged and that he made
the statement attributed to him at the time of discharge by Walter Beachler. He
testified that when he was absent from work, he obtained permission either from
Young or Donald Beachler; that he requested a transfer from the cherry bomb
job only, because he was unable to get along with the female employees; that he
was never warned about being absent from work; that nothing was ever said to him
when he returned to work after an absence; that he was absent from work during
the week ending September 10 "because I had a holiday [Labor Day] and I went
down home to Tennessee and was gone Friday evening until Wednesday morning";
and that he did not have any trouble or argument with his foreman during his
last day of work.
The Respondent's time records show Webb's weekly hours for 1955 as follows:
Week ending- Hours Week ending- Hours
1955 1955-Continued
Jan. 1----- ------------------------------- 31%4 May 7---------------------------------- 31 %%i
Jan. 8- ----------------------------------- 40 May 14--------------------------------- 40
Jan. 15------ ----------------------------- 40 May 21--------------------------------- 53%
Jan. 22------ ----------------------------- 40 May 28--------------------------------- 40
Jan. 29----- ------------------------------ 40 June 4----------------------------------- 32
Feb. 5------------------------------------ 40 June 11---------------------------------- 48
Feb.12---------------- ------------------ 40 June 18--------------------------------- 48
Feb. 19---------------------------------- 40 June 25---------------------------------- 48
Feb. 26----- ------------------------------ 40 July 2---------------------------------- 40
Mar. 5 ---------------------------------- 36%4 July 9----------------------------------- 40
Mar. 12---------------------------------- 40 July 16---------------------------------- 40
Mar.19---------------------------------- 40 July 23-------------------------------- 40
Mar. 26----- ----------------------------- 40 July 30---------------------------------- 35
Apr. 1----------------- ------------------- 40 Aug. 6-------------------------------- 39%
Apr.9-------------------------------- 39 Aug.13--------------------------------- 39%
Apr. 16----------------------------------- 40 Aug. 20--------------------------------- 38
Apr. 23----------------------------------- 3734 Aug. 27--------------------------------- 40
Apr. 30----------------------------------- 16 Sept. 3---------------------------------- 40
Sept.10--------- --------------------- 16
e Paid vacation.
As in Rhoda Webb's case, there are a number of conflicts and contradictions in
the testimony of Respondent's witnesses in Raney Webb 's case . Young testified
that he told Walter Beachler that Webb was unable to get along with the female
employees and had asked to be fired, and that he was not told that Webb was to be
discharged. Beachler testified that Young also told him that Webb had been "off
without notice," and that he told Young that Webb would be discharged. In this
connection it is noteworthy that Webb's release slip does not mention absence from
work as a reason for discharge. It is obvious from the evidence that this reason
was an afterthought.
There is no evidence that Webb was remiss in the quality or quantity of his work.
His attendance record shows that, aside from the weeks ending April 30 and Septem-
ber 10, Webb was absent not more than 3 whole days during better than 8 months.
Webb testified that he always obtained permission either from Young or Donald
Beachler for his absences. Young and Beachler have been discredited heretofore.
19 Young's testimony indicates that Webb at times was transferred to other jobs when
cherry bomb work ran out or was slack.
UNITED FIREWORKS MFG. CO., INC. 905
However, assuming arguendo that Webb did not tell the truth in this respect, there
is no evidence that he was reprimanded or warned when he returned to work from
his absences. If the Respondent considered the absences sufficiently serious, why
wasn't he discharged when he returned to work on September 8? Keeping in mind
Donald Beachler's testimony, to the effect that he had been discussing Webb's
discharge on numerous occasions with Young and Walter Beachler, that he and
Walter Beachler made the decision to discharge Webb, that Young had recommended
it, and that time off from work without notice was one of the reasons for the decision,
it would seem likely that Webb would have been discharged when he appeared for
work on September 8. However, nothing was said to him at the time, and he was
permitted to work for 2 whole days before his discharge.
Webb and his wife attended the union meeting on the night of September 8. Like
Rhoda Webb, nothing unusual happened to Raney Webb during the course of his
work on September 9, except that without warning he was discharged. Likewise,
except for the alleged absence from work without permission, the charges against
him are vague and without substance. It is obvious from the testimony of Respond-
ent's witnesses that Respondent was looking for an excuse to discharge him. Accord-
ingly, I credit the above testimony of Raney Webb and find that the Respondent
discharged him on September 9, 1955, because of his membership in, and activities
on behalf of, the Union.
G. Marvin Banks and Omeda Banks
Marvin Banks was employed by the Respondent on July 28, 1955. He worked
in the Respondent's lance department. This department is part of the Respondent's
display department, and is located in a separate building. It consisted of only two
employees, Banks and an unidentified female employee.
Omeda Banks was "rehired" by the Respondent on August 15, 1955. She worked
in the commercial department in "Building 4 on the line . assembling fireworks."
Marvin and Omeda Banks accompanied Raney and Rhoda Webb to the union
meeting held on the night of September 8, 1955, driving to the meeting in the same
automobile?° They were both laid off or discharged on September 9. Their release
slips were received in evidence. The reason for Marvin's discharge is stated thereon
as, "closing down operation-lack of orders." The reason on Omeda's slip is
"Lack of work." Omeda's slip contains the additional notation, "Do not rehire-
too slow," which is alongside of Walter Beachler's signature . The Respondent re-
called Marvin to work on November 12, 1955; but he did not return. As of the date
of the hearing herein, Omeda Banks had not been recalled.
The Respondent's records show that the only employees discharged or laid off
for lack of work between July 4 and December 1, 1955, were as follows: Lottie
Daniels, Mattie Anderson, Elizabeth Owens, Frances Martin, Rose Gates, Omeda
Banks, and Marvin Banks. The complaint alleges that all of these employees, except
for Anderson, were discharged discriminatorily. Anderson was first hired by the
Respondent on August 29, 1955. She was laid off on September 14, 1955. The
record does not indicate in which department she worked. None of the other
employees named above, whose cases will be discussed hereinafter, worked in the
lance department. Accordingly, from the record as it stands it appears that Marvin
Bank's unidentified coworker was not laid off on September 9. If this worker was
Anderson, she was not laid off until 5 days after Banks. The record discloses that
on October 4, 1955, Perry Nard was hired for the first time as lance machine
operator and general factory work.
Robert Beachler testified that he made the decision to lay off Marvin Banks; that
he discussed Bank's layoff with Foreman Cairo; that Cairo agreed with his decision;
that Bank's layoff was caused by "the close of the season in that department . . . and,
therefore, we have a general layoff in that one department; 21 that Bank's job was
"pressing composition into small 4" tubes"; that the job was not skilled and "the gen-
eral factory laborer, I suppose could do it"; and that Banks "was with us 7 weeks.
His production was not up to capacity, which should have been after the second
week. . . He did not gain it as long as he was there, but he was the type of man
that I had confidence in that would achieve it."
ro' Neither Marvin nor Omeda Banks appeared as a witness at the hearing. Rhoda Webb
testified credibly to the above.
"On cross-examination when Beachler was asked if "inability to get materials from the
East" had anything to do with the closing down of the lance department, he testified, "at
that time it was due to lack of orders. However, at that time, no, it was due to materials.
But we would be mixing at that time preparatory to hiring against a later time."
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Donald Beachler testified that Omeda Banks was laid off for "lack of orders, and
also due to the floods in the East we could not get chemicals"; that she was not rehired
because her work was "not satisfactory . . . she was too slow"; that Ruth Wall had
supervision over building 4; that Mary Colvin was Omeda's immediate supervisor;
that "there's a hundred jobs done in that same building of different types"; that
Omeda performed a number of such jobs; and that he personally did not observe
Omeda's work.22 When asked if he kept "track of the amount of production that
Omeda Banks did in a day"; Beachler answered , "There is no way to keep that produc-
tion, only as a group."
Walter Beachler testified that the decision to select Omeda Banks for layoff was
made either by her forelady, Ruth Wall, or by Donald Beachler; that he did not know
which one made the selection; that he was not present when Omeda was given her
release slip; and that he wrote the notation "Do not rehire-too slow" on the slip "a
long time afterwards . . . when we were getting ready to hire people back."
The Respondent's records disclose that from July 4 to December 1, 1955, 26 former
employees were "rehired"; that of this number 3 were rehired during September; that
during the same period of time 53 new employees were hired; that of this number 3
were hired during October, including Nard; that 3 of the employees hired during
September and October were assigned to the display department on "general factory
work"; and that Priscilla Brown, who was hired on October 31, performed general
factory work in the commercial department.
I am convinced and find that Marvin and Omeda Banks were discharged on Septem-
ber 9, 1955, because they attended the union meeting on September 8. They arrived
at this meeting in the company of Raney and Rhoda Webb, two of the most active
adherents of the Union. As found above, the meeting was kept under surveillance
by Robert Beachler. These facts constitute the General Counsel's prima facie case.
In answer to this case, the Respondent contends that Marvin and Omeda Banks
were laid off because of a lack of work, caused in turn either by a lack of orders or
inability to obtain materials. Robert Beachler was inconsistent in his testimony con-
cerning the reason for Marvin's termination. He first testified that there was a
"general layoff" in the lance department because it was the "close of the season."
On cross-examination he testified, "At that time it was due to lack of orders. How-
ever, at that time, no, it was due to materials." The record shows, however, that the
only employee affected by the general layoff in the lance department was Marvin.
His coworker was not laid off. Further, the record discloses that the "close of the
season" in the lance department did not last very long. Nard, a new employee, was
hired on October 4 as a lance machine operator. This fact affords an additional
indication of discrimination, since Marvin was not recalled until November 12.
The record discloses that Omeda Banks was the only employee affected by the
layoff in building 4 of the commercial department, except possibly for Mattie Ander-
son. As stated above, the record does not disclose in which department Anderson
worked. Further, Anderson's employment was not terminated until September 14.
Donald Beachler testified to the effect that Omeda was not recalled because she
was "too slow" in her work. On cross-examination he admitted that he had not
observed her work and that it was not possible to gauge her individual production.
He testified that he obtained his information about Omeda's work from some un-
identified person. Neither Mary Colvin, Omeda's immediate supervisor, nor Ruth
Wall, who had supervision over the building, was called as a witness in this connection.
In conclusion, it is my opinion that the General Counsel sustained the burden
of proving that Marvin and Omeda Banks were discharged in violation of Section
8 (a) (3) of the Act. The Respondent's contention that the discharges were caused
either by a lack of orders or by inability to obtain materials is rejected. The Respond-
ent's own records disclose that it was hiring employees at the time material herein.
H. Elizabeth Owens
Owens was employed by the Respondent from February until August 1953, and
from April 28, 1954, until September 19, 1955. She worked in building 48 in the
pasting department which was part of the display department. She and employee
Lillian Baker were the only two employees in the pasting department. They pasted
paper around aerial shells and were under the supervision of Robert Beachler and
Foreman Fred Cairo. Other employees worked in the same room at different jobs.
Owens joined the Union on May 26, 1955. Her conversations with Cairo and
Robert Beachler about the Union have been related above. On September 9, the
22 Colvin did not appear as a witness at the hearing. Wall gave no testimony with
respect to Omeda Banks.
UNITED FIREWORKS MFG. CO., INC. 907
day after the union meeting, she had a conversation with Robert Beachler.
Concerning this conversation, Owens testified credibly and without contradiction,
"The day after the United Steelworkers meeting . . . he said someone asked him
about some jewelry [which Beachler sold to employees on the side] and he didn't
know, but if the Union came in they would have to close down. Someone had told
him they had a union meeting. He didn't know whether they were telling him
to rub it in, or what they were telling him for. And I said, `Well, I don't expect you
care what anyone does after their work.' And he said, `I do not.' . Well, I told
him if I had known that he wanted to go to the meeting, joined, I would seen he
got a card and he could have gone-signed it and gone. . He only grinned."
On Friday, September 16, Owens unsuccessfully solicited three employees to sign
union application cards. One of these employees she solicited in the plant during
rest period.
On Monday, September 19, shortly before quitting time, Cairo told Owens that
Mr. Beachler wanted her at the office. When she got to the office, an employee
there attempted to give her a release slip. Owens refused to accept the slip until
she talked to Robert Beachler. She then went to Robert Beachler who asked her
if she had read the slip. When she replied that she had not, he told her, "Well, go
read it and sign it, or whatever you want to do about it, and then you come back
and talk to me." Owens signed the slip which gave as the reason for discharge,
"Lack of work due to lack of material." She was given 2 paychecks at the
time, 1 for the previous week and 1 for her work on September 19. Beachler then
told her that he had to lay her off "for lack of materials"; that he "hated" to do it
as she was "a good worker"; and that when "orders came from higher-up" he had
to follow them. The Respondent recalled Owens to work on November 14, 1955.
Robert Beachler testified that Owens' layoff "was due to lack of materials due
to the flood in the East, by the Ensign-Bickford Company who furnish us with
fuses"; that "in my opinion [Owens] was a very fine employee. As a matter of
fact I hired her back before the scheduled time, before I received the equipment
from the East due to her ability to get the work out, and placed her on another
job"; that in the pasting department Lillian Baker was "the leader" and Owens
was "a helper"; that he made the decision to lay off Owens; that he first discussed
it with Cairo; and that Cairo "went along with my decision."
Cairo testified that the reason for Owens' layoff was that "at the time we
couldn't get some of our chemicals then, especially the time fuses, the most important
thing"; that she was "a good worker"; and that he recommended Owens' layoff.
Owens testified that at the time of her layoff there was no shortage of materials
so far as she observed; that on her last day of work "I was as busy as previously";
that before Labor Day, 1955, she asked Robert Beachler if she could be absent 2
or 3 days during Labor Day week in order to visit her brother; that "he said, well,
he would rather I couldn't be, that we had a swing in full production, that we were
behind and had to swing in full production, and I was one of his best workers"; 23
and that in accordance with his request she worked that week. I credit the above
testimony of Owens.
The General Counsel contends that because of Owens' activity on Friday,
September 16, and her conversations with Cairo and Robert Beachler the Respondent
knew that she was an adherent of the Union. In my opinion, these facts are
insufficient to justify a finding that the Respondent had such knowledge. Accord-
ingly, it is found that the General Counsel has failed to sustain the burden of proving
that Owens was laid off or discharged discriminatorily, and it will be recommended
that the complaint be dismissed as to her.
1. Lottie Daniels, Rose Gates, and Frances Martin
Daniels, Gates, and Martin 24 were sparkler packers in the sparkler building of the
commercial department. They worked under the supervision of Donald Beachler,
Wall, and Wells. At the time of the hearing herein Martin had been employed by
the Respondent a little over three and a half years. Daniels was in the Respondent's
employ 5 or 6 times, and she was rehired on the last occasion at sometime before
July 4, 1955. Gates was rehired by the Respondent on July 25, 1955.
Martin obtained several union application cards from Rhoda Webb, and signed
one on August 31, 1955. She gave one of these cards to Gates, her sister. Daniels
attended the union meeting held at the YMCA building on the night of September 8,
1955. As related and found above, Gates was with employee Catherine Hines that
night when the latter twice drove by the car in which Robert Beachler was sitting.
sa Owens testified without contradiction to the above conversation.
21 Daniels and Gates did not appear as witnesses at the hearing.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hines' conversation with Supervisor Wall the following morning has been related
above.
Daniels' employment was terminated on September 14, 1955, with the reason
given as "Lack of work." The Respondent recalled her to work on November 12,
1955; but she did not return to work at that time. Martin and Gates were laid off
on September 19, 1955, with the reason also given as, "Lack of work." Gates was
rehired on November 14, 1955. Martin was rehired on November 15, 1955.
Martin testified without contradiction that during the period of 2 weeks before
her layoff she made her production quota of "twenty-three gross a day." She also
testified that there was no decrease in the available work during that time.
Employee Johnnie Scott testified without contradiction that during the same week
or the following week that Daniels, Gates, and Martin were laid off "... the
[unpacked] sparklers had piled up all along the walls and Dutch [Wells], and I
forget who else, had to go and store it in another building." Scott also testified that
in her opinion there was no shortage of materials before or after the layoffs, and
that Daniels, Gates, and Martin were not replaced.
Concerning the layoffs of Daniels, Gates, and Martin, Donald Beachler was
questioned and testified as follows:
Q. What part did you take in the decision to discharge, or lay off Lottie
Daniels, Rose Gates, and Frances Martin, Mr. Beachler?-A. It was a dis-
cussion between me and my Dad, and other superintendents, because of lack
of materials. We didn't know how long we were going to be able to keep on
due to lack of materials and lack of orders. And the decision could come
any day.
Q. Who were the discussions with? Who were the supervisors you dis-
cussed this with? Ruth Wall?-A. Mr. Vance, Ruth Wall?
Q. Mr. Wells?-A. No. Well, yeah, I have discussed it with him, yes.
Vance, Robert Beachler.
Q. Bob Beachler?-A. Yes, sir. It was a general discussion over the whole
plant.
Q. These girls did not work under Bob Beachler, did they?-A. No, sir.
Q. But he took part in this discussion?-A. He uses some of the same chem-
icals that we use in his department.
Q. Who suggested these three particular girls? Any of those supervisors?
Ruth Wall? Mr. Vance?-A. Yes, sir.
Q. Which one? Lottie Daniels-who suggested her?-A. Dad.
Q. Your Dad?-A. Yes, sir.
Q. And Rose Gates? Who suggested her?-A. Dad.
Q. Your Dad?-A. Yes, sir.
Q. And Frances Martin?-A. My Dad.
Q. Your Dad?-A. Yes.
Q. And who did Ruth Wall suggest?-A. I wasn't in on the conversation
with Dad and Ruth Wall at that time when they did discharge those three, if
they had a discussion at all.
Q. Now, it was my understanding that you all, the whole group of you
discussed this at one time. You and Vance and Wall and Wells, Bob Beachler
and your Father.-A. On the exact ones we were going to lay off?
Q. Yes.-A. No, sir, it wasn't discussed, the ones being laid off, together.
Q. Well, what part did you take in the decision to lay these girls off?-A. I
knew we was going to have to lay some off, but I didn't know who or which ones.
Q. Well, these three particular girls.-A. I think that theirs was the least
amount of production per day, or they were the newest girls there.
Q. You are not sure. Either the least efficient or the newest.-A. Yes.
Q. Or both?-A. It.may have been both, yes, sir.
Walter Beachler, Wall, and Wells did not testify with respect to the layoff of
these three employees. On an exhibit received in evidence the Respondent states,
"We carry no seniority rights."
The General Counsel contends that the evidence shows that the Respondent had
knowledge of the union activities of Daniels, Gates, and Martin. I disagree insofar
as Gates and Martin are concerned.
Hines and Gates did not attend the union meeting. They drove around the
block, passing Robert Beachler's car twice, and then parked almost a block away
until the meeting was over. The following day when questioned by Wall as to what
she was doing in the vicinity of the union meeting, Hines replied that she was going
to a "club meeting." Gates was not mentioned in the conversation, indicating that
she had not been seen. Further, the record shows that Hines was not laid off or dis-
charged after the union meeting.
UNITED FIREWORKS MFG. CO., INC. 909
Aside from signing a union card on August 31 and giving a card to Gates, it
does not appear that Martin engaged in any union activity. Her conversation with
Supervisor Vance during May does not, in my opinion, justify an inference of
knowledge on the Respondent's part of her union membership and activity. There-
fore, despite the fact that the evidence in regard to the Respondent's economic
defense is vague and contradictory, I am constrained to find that the General
Counsel has failed to sustain the burden of proving that Gates and Martin were dis-
charged in violation of Section 8 (a) (3) of the Act. It will be recommended that
the complaint be dismissed insofar as these two employees are concerned.
Although it appears from the above testimony of Donald Beachler that he had
nothing to do with the selection of Daniels for layoff, he testified, "She was one of
the newer girls in the Sparkler Building. I do know that. Now, whether her name
was one of them that miscounted sparklers, at the present I couldn't say, unless I
seen the records. . she would have been one of the newest if she was hired back
6 times. She probably would have been, the last time." This is the only explanation
in the record for Daniels' selection. Contrary to Beachler's testimony in this con-
nection, the record reveals that employees Gates, Hines, Eula Byrd, Hattie Craft, and
Bertha Demming, all of whom were sparkler packers, were hired after Daniels. Byrd
was hired as a new employee on July 12, 1955. Demming was rehired on August
23, 1955, or less than a month before Daniels' layoff.
In conclusion, the evidence shows that Daniels attended a union meeting on
September 8, which was kept under surveillance by Robert Beachler; and that 6
days later her employment was terminated. The uncontradicted evidence shows
that unpacked sparklers were "piled up" after her layoff. There is no evidence that
she was an unsatisfactory employee or had "the least amount of production per
day." She had more seniority than five other sparkler packers. Donald Beachler,
although he was the superintendent of the commercial department, apparently was
not consulted on the selection of employees to be laid off. He testified that Walter
Beachler made the decision. It is not even clear from his testimony if Supervisor
Wall was consulted in this connection since he testifies. "I wasn't in on the conver-
sation with Dad and Ruth Wall . . . if they had a discussion at all." As the record
stands, the Respondent has made no explanation of why Daniels was selected for
layoff. So that even if the Respondent's economic defense is credited, which is not
the case, a prima facie case of discriminatory selection for layoff remains.
Accordingly, I find that by terminating the employment of Lottie Daniels on
September 14, 1955, the Respondent has violated Section 8 (a) (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 con-
nection with the operations of the Respondent set forth 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 REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminated against Marvin Banks,
Omeda Banks, Rhoda Webb, Raney Webb, and Lottie Daniels. It will be recom-
mended that the Respondent offer Omeda Banks, Rhoda Webb, and Raney Webb
immediate and full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights and privileges. It further
will be recommended that the Respondent make whole said employees and Marvin
Banks and Lottie Daniels for any loss of pay they may have suffered by reason of
Respondent's discrimination by payment of a sum of money equal to that which
they would have earned as wages from the date of the discrimination to the date of
an offer of reinstatement, or to November 12, 1955, in the cases of Marvin Banks
and Lottie Daniels, less their net earnings during such period.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating against its employees the Respondent has engaged in un-
fair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid labor practices affect commerce within the meaning of Section
2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Stern Brothers and Local 5 , District 65, Retail, Wholesale & De_,
partment Store Union , AFL-CIO, Petitioner. Case No. 2-RC--
79.1pY. July 30,1957
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF ELECTION
On May 21, 1957, the Board issued a Decision and Order 1 in the
above-entitled proceeding, dismissing the petition for an election upon
the ground that the Petitioner had not submitted evidence of sufficient
interest among the employees at the Employer's Great Neck store to
justify holding an election. On May 27, 1957, the Petitioner filed a
motion for reconsideration contending that it had made a sufficient
showing of interest for the number of employees it believed involved,,
and that it had eight additional authorization cards, of which photo-
stats were attached, which it was desirous of submitting, and request-
ing that the Decision and Order be set aside and an election directed.
Thereafter, the Employer filed an answer to the motion opposing the
relief sought.
The Board having duly considered the motion, the answer, the
Decision and Order, and the entire record in the case, finds as follows :
In making its various unit requests with respect to the selling and
nonselling employees at the Employer's Great Neck store, the Peti-
tioner sought, contrary. to the Employer, to exclude contingent em-
ployees, viz, those employees who worked only on Thursday night and
Saturday. The Board found that the appropriate voting group at
the Great Neck store was all selling and nonselling employees, includ-
ing the contingents. However, it appeared from a field examiner's
report to the Board that the Petitioner did not have the requisite
30-percent evidence of showing of interest in the enlarged voting group
to justify proceeding with the election. Accordingly, and as the
Board found no question concerning representation among the em-
ployees at the Employer's New York city store, the petition was dis-
missed. Subsequent to the filing of the, instant motion, the field
examiner submitted to the Board a further report on showing of
1 Not reported in printed volumes of Board Decisions and Orders.
118 NLRB No. 113.