Gates Rubber Co.

National Labor Relations Board - Board Decisions

Apr 11, 1942

40 N.L.R.B. 424 (N.L.R.B. 1942)

In the Matter of GATES RUBBER COMPANY and FRANK SAMUELSON
In. the Matter , of GATES RUBBER COMPANY and UNITED RUBBER
WORKERS OF AMERICA, LOCAL No. 154
Cases Nos. C-2047 and C-0048, respectively .Decided April 11, 194
Jurisdiction : mechanical rubber goods manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements; questioning em-
ployees about union membership ; threat to lay off union members first in
event of a lay-off; requiring applicants for employment to state their union
affiliation ; threatening loss of benefits to employees 'if plant were organized ;
threatening employees with discharge if they joined union ; discriminatory
assignment of work to employees who were union members; warning em-
ployees to cease organizational activities.
Discrimtination: discharge for union membership and activity ; refusal to rehire
two employees because of their leadership in union ; discriminatory assign-
ment of work in case of one employee because of his union activity ; alleged
reasons as justification for, not- sustained-charges of, dismissed as to two
persons.
Remedial Orders : reinstatement and back pay awarded; employer ordered to
offer to former employee refused reemployment, position which he would have
been assigned absent discrimination.
Mr. Paul E. Kuelthau, for the Board.
Mr. Hudson Moore and Mr. Dayton Denious, of Denver, Colo., for
the respondent.
Mr. Harry W. Clifford, of Denver, Colo., for the Union.
Mr. J. Benson Saks, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Frank Samuelson
and United Rubber Workers of America, Local No. 154, herein
called the Union, the National Labor Relations Board, herein called
the Board, by the Regional Director for the Twenty-second Region
(Denver, Colorado), issued its complaint dated April 23, 1941,
against Gates Rubber Company, Denver, Colorado, herein called the
40 N. L. R. B., No. 73.
424
GATES RUBBER COMPANY 425
respondent, alle'ging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, accompanied by notice of hearing, were
duly served upon the respondent, the Union, and Frank Samuelson.
With respect to the unfair labor practices, the complaint alleged, in
substance, that the respondent : (1) discriminated in regard to the hire
and tenure of employment of seven named individuals,)-and (2) by
such acts, by urging, persuading, and warning its employees to refrain
from joining or remaining members of the Union, by threatening its
employees with discharge if they joined or assisted the Union or any
other labor organization or engaged in concerted activities for the
purposes of collective bargaining or other mutual aid and protection,
and by other acts, interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act. On May 3, 1941, the respondent filed its answer in which it
admitted the jurisdiction of the Board and the allegations of the
complaint as to the nature of its business but denied that it had com-
mitted any of the alleged unfair labor practices.
Pursuant to notice, a hearing was held in Denver, Colorado, front
June 5 to 26, 1941, inclusive, before P. H. McNally,. the Trial Exam-
iner duly designated by the Chief Trial Examiner. The Board and
the respondent, represented by counsel, and the Union, by its repre-
sentative, participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties.
The respondent had filed a motion , to make the complaint more
specific. At the commencement of. the hearing , the Trial Examiner
denied this motion, however , allowing the respondent to move for a
recess if it was taken by surprise in respect to evidence adduced by the
Board. During the hearing the Trial Examiner granted without
objection the Board 's motion to dismiss the complaint as to Merle
D. Campbell. At the conclusion of the hearing the Trial Examiner
granted the motion of the Board 's attorney to conform the pleadings
to the proof , but denied the motions of the Board's attorney (1) to
amend the complaint by adding, among other things, an-allegation
that the respondent had used the Counsellors ' Club, the Safety Coun-
cil, and other organizations , ostensibly set up for the improvement of
working and safety conditions , to discourage membership in the
Union; ( 2) to adjourn the hearing for 30 days for the purpose of
further investigation regarding the Counsellors ' Club and the Safety
1 Frank Samuelson , Irvin Larson , Charles D . McCarty, Cal F. Stuchlick , Merle D. Camp-
bell, Jacob Rommel, and Clyde Rhoden.
426 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
Council; and (3) to receive further evidence.' Pursuant to leave
granted at the conclusion of the hearing, the respondent subsequently
filed a motion to strike certain testimony regarding the Counsellors'
Club and the Safety Council, which motion was granted by the Trial
Examiner. These rulings are hereby affirmed. Various rulings were
made by the Trial Examiner during the course of the hearing on other
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
Following the hearing, the respondent submitted a brief for the
consideration of the Trial Examiner. Thereafter, the Trial Ex-
aminer issued his Intermediate Report dated January 5,' 1942, copies
of which were duly served on the respondent, the Union, and Frank
Samuelson. He found that the respondent had engaged in unfair
labor practices affecting commerce, within the meaning of Section 8
(1) and (3) and Section 2 (6) (7) of the Act, and recommended that
the respondent cease and desist therefrom and take appropriate af-
firmative action.. The Trial Examiner recommended dismissal of the
complaint with respect to Jake Rommel.
On February 4 and 9, 1942, the respondent filed with the Board
its exceptions to the Intermediate Report, and its brief in support
of the exceptions. Pursuant to notice duly served on the parties, a
hearing was held before the Board in Washington, D. C., on February
19, 1942, for the purpose of oral argument. The respondent was repre-
sented by counsel and participated in the hearing.
The Board has considered the exceptions and briefs submitted by
the respondent, and hereby finds the exceptions to be, without -merit
insofar as they are inconsistent with the findings of fact, conclu-
sions of law, and order set forth below.
Upon the entire record in the case, the Board makes the following :
FINDINGS of FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Gates Rubber Company, is a Colorado corpora-
tion having its principal office and place of business at Denver, Colo-
2 The Trial Examiner on his own motion had adjourned the hearing for 30 days to permit
the Board to make a further investigation and to file an amended complaint . The Trial
Examiner's expressed reason for so doing was that "the theory of the Board in 8 (1) does
not appear to fit the allegations or the evidence as it has been developed " The Trial Ex-
aminer , stated that the Board should address its 'inquiry to the Safety Council, the Coun-
cillors' Club , and various other organizations . - There was some testimony in the record
suggesting that these organizations naght have been employed by the respondent to dis-
courage union activity . Upon instructions of the Chief Trial Examiner, the Trial Examiner
reconvened the hearing the next day and cancelled the order of adjournment . The Board
then offered the above motions , and as noted they were denied The respondent ' s excep-
tions and biief rely on this procedure as evidence that the Trial Examiner was biased The
Board has duly considered the contention of the respondent that the Trial Examiner was
biased and prejudiced , and finds that it is without merit.
GATES RUBBER COMPANY 427
rado, where it employs approximately. 2,200 , hourly paid employees
in its' manufacturing operations. It is - engaged in, the processing,
fabricating, and manufacture of tires, tubes, transmission belts, and
numerous kinds of, mechanical rubber goods. During 1940 the re-
spondent purchased for_ use in its manufacturing,-operations raw
materials, supplies, equipment, and finished products valued 'at- ap-
proximately $4,000,000, almost all of which was shipped to the re-
spondent from sources outside Colorado. During the same year the
respondent manufactured finished products valued at approximately
$13,000,000, of which 90 percent were shipped to points outside the
State'of Colorado. It admits that it is engaged in commerce, within
the meaning of the Act. -
II.'THE ORGANIZATION-INVOLVED
United Rubber Workers of America, Local 154, affiliated with the
Congress of Industrial Organizations, is a labor organization which
admits to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Following an unsuccessful attempt to organize the respondent's
employees in 1937, United Rubber Workers withdrew the charter of
Local 154.and retained it until 1940. In April 1940 the Union re-
newed its organizational activities and signed up a number of em-
ployees. At this time, the respondent refused to meet with the union
grievance committee until such time as the Union could establish
that it represented a majority of the employees or was certified as the
/ exclusive bargaining agent by the Board.
John Roberts, who had formerly worked for the respondent, sought
'reemployment early in June 1937. He was rehired by Wall, a de-
partment head, who told him to see Frank Bosley, plant superintend-
ent, before he returned to work. - Roberts testified as follows with
regard to his conversation with Bosley :
Well, he come to it in his talk, you know,' about labor trouble,
and stuff like that. He said that he didn't want any of that out
of me. He said that he didn't know for what reason 1-was coming
in there, whether I was coming in there for a job or had something
like that in my head. He said that they had Union men in the
print shop and carpenter-shop, that they had hired them out of
the Union, but in the production department he cou_ldn't have
anything' like that. He said "We have communists in here if, we
knew who they were we would fire, them."
428 DECISIONS OF, NATIONAL LABOR'-RELATIONS BOARD
Bosley testified that he did not recall anything about the conversation
testified to by Roberts, and when asked if he had threatened Roberts
by any remark about not becoming a member of the Union, answered
that he had never threatened a man in his life. Bosley's denials are
unconvincing. We credit the testimony of Roberts, as did the Trial
Examiner.
Merle Campbell, who worked in the stockroom, attended a union
meeting in the summer of 1937. He testified without contradiction
that shortly after this meeting, Arthur C..Ellsworth, superintendent
of the stockroom, approached him during working hours and inquired'
if he had attended the union meeting, and'that when he replied in the
affirmative Ellsworth told him that the respondent "didn't tolerate
anything like that, and if there was to be a lay-off they ['the ones that
joined the Union'] would be the ones that got laid off first."
William Seifert entered the respondent's employment in April 1939.
Prior to being hired he was required to fill out an application blank,
on which he was required to state whether he had ever belonged to a
union.3 Seifert testified without contradiction that about July 1939
his foreman, Ralph White,, stated to him that the respondent "didn't
need any damn union; they could run the place to suit themselves."
Harvey Winckel left the respondent's employment early in 1939 and
went to California, where he. joined a union. When he sought reem-
ployment with the respondent in August 1939, in response to instruc-
tions from Foreman Charles Vickers, he disclosed his union member-
ship on his application. Winckel testified without contradiction that
Vickers, after reading the application, explained to Winckel that the
respondent's plant Was not a union shop, that "it is my [Vickers']
business to keep it [the Union] out of here" and that "it is either your
job or mine, and it is not going to be mine." Winckel, however, was
rehired. -
In the fall of 1939 and the spring of 1940, the respondent conducted
classes'. gratuitously for the benefit of its employees, including one on
Economics and, Industrial Enterprise. This class was attended by
about 30 employees on their own time. It was conducted once a week
on the plant premises by Roy Blake, a supervisor in the tire department.
He discussed the subject of unions several times in this class. Grant
Pawling, who served as a temporary strawboss in the tire-inspection
department, testified in regard to these discussions that-
Whenever we would come to the part in the book where the Union
was favorable to the management that was all right-we would
discuss that part of it-but when it came to the other part, Mr.
8Cf.' Matter of Gates Rubber Company and International Brotherhood of Electrical
Workers, Local Union No. 68, affiliated with the American Federation of Labor, 30 N. L.
R. B. 170.
GATES, RUBBER COMPANY 429
Blake would immediately refer back to his own, experience in
Akron, Ohio, he would then claim the Union had torn up the city
and made a ghost city out of it because thousands of men had lost
their jobs over the Union coining into there; that Goodyear was
going to pull out all of their equipment there and put it down
into the South where they could get cheap wages again.
Garfield Notz, who also attended this class, testified to the same
general effect. There was no contradiction of this testimony and we
find, as did the Trial Examiner, that Blake expressed the sentiments
set out above.
Henry G. Schmitt testified without contradiction that in April 1940,
Henry Otterbein, a shift foreman in the millroom, where Schmitt
worked, asked him if he had been solicited to join the Union, and
that when he gave a noncommittal reply Otterbein stated that he
knew such solicitation had occurred and that "if a Union gets in here
we will lose our vacations with pay; lose our holidays with-pay, and
lose our benefit club." 4 - -
Schmitt also testified that in July 1940, J. C. Brown, the respondent's
personnel director, met him near the plant and asked him if he had
joined the Union; and that Schmitt replied, "Well, yes and no."
Schmitt testified further that Brown, after stating that he had
Schmitt's name down as a union member, told him, "if you have joined
the Union you will be sorry of it." Brown on this occasion, accord-
ing to Schmitt, also asked him if any of the other employees had
joined the Union. Brown denied making these statements. He testi-
fied that Schmitt "came up to me and asked me about his brother that
used to work for us, and stated that the C. I. O. was starting to
organize, but that he was going to button up his lip about any of that
` type of organization." Upon the entire record, we credit the testimony
of Schmitt, as did the Trial Examiner.
Roberts, who was working under one George Remke, a "young
boss," and who-joined the Union in June 1940, testified without contra-
diction that the following conversation took place between him and
Remke on July 13,1940:
A. Well, Remke talked to me about the Union
Q. Where did the conversation take place?
A. On my line .. .
Q. Tell us what was said and how it happened . . .
The WITNESS. [Roberts] . . . he [Remke] said, "Well, I guess
we will be getting our daily papers again tonight." I thought he
had reference to the Progress News. I was sort of dumb.
I The benefit club was organized by the respondent in 1929 The membership, which
was confined to employees of the respondent , in return for small weekly payments , received
medical , hospital , and sick benefits.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He said , "No, the one the boys are coming out with." They gave
me one when I went out on the street so that I would be sure they
got one."
Q. What paper was that?
A. The United Rubber Workers .. .
The-WITNESS. [Roberts] He [Remke] went ahead to tell me
about the 'guy that worked in the lab, the guy who got to messing
around and lost his job.'
I said, "In this day and: age a, fellow needs a little protection.
It is just like when you go to law you have got to have a mouth-
piece to represent you." -
"Well," he said, '"I hope I never have to have a lawyer" in a
sort of snippy way and he walked off and left me:.. .
He went to the other foreman and they went over to one side
and talked; and then I told him what he was doing.
Q. Who was he talking to?
A. Bert Wedo.
Q. Tell us what you said and what he said.
A. • I told him that he was checking me on my Union activity
there and messing with my job like that, and threatening me in
that way; that the guy who lost his -job lost it by messing with
-them. I said, "You are messing with the law."
Q. What did he say?
A. He said that he had that right.'
Immediately following the conversation between Roberts and Reinke,
Roberts was assigned to a distasteful job Working on mats. The
respondent did not explain why it thus transferred Roberts. He
threatened to quit, but finally was returned by the respondent to his
former job and placed under another foreman, Rhodes. We find that
the respondent assigned Roberts to the undesirable work because of
his union membership and activity.
In August 1940, Charles D. McCarty began to wear his union button
to work. McCarty testified without contradiction to the following
conversation and the results thereof :
I [McCarty] was approached by Ira Welt [his foreman] and
he was wearing a Willkie button. I asked him why he didn't
get a good button instead of a Willkie button. He noticed my
5 Roberts testified further, and without contradiction, that
She [his sister] said that the foreman [ Clarence Humes] came to her and talked
to her for about two hours, her department head She said that he told her that
he [Roberts ] was at the head of a bunch of men trying to organize the place. He
said that he didn 't know what would be gained in it for me . "If we could do any-
thing for the man or give him a better job we would do it ." He wanted her too
come to me and tell me that . . . ' `
GA(PEIS RUBBER COMPANY 431
[union] button and came over and examined it very closely.
Without making any comment whatsoever he left immediately and
that was the end of the incident for that day.
Q. What happened the next day?
A. The next day I was notified that George McLaughlin would
take over the banbury [the machine McCarty was operating].
Q. What did you do?
A. I was immediately put to work on odd jobs-the worst
jobs in the mill room-sweeping, bailing sacks, and general flunky
work. It was very clear to everybody in there that I was put on
those jobs because I was a Union man.
We find that McCarty was thus discriminated against because of
his union membership and activity.
In January 1941, Louis Novak, who worked in the fan-belt depart-
ment, met Personnel Manager Brown in the personnel office. Novak
testified without contradiction that Brown fingered the union steward
button Novak was wearing and remarked, "You too." Brown then
asked Novak how many favors he had received from the respondent
and how many of his brothers were working for it. The day after
this episode Charles Vickers, foreman in Novak's department, began
to criticize his work. He told Novak that his rates were low and
that he was getting behind in his work. Thereafter Novak-was crit-
ically watched and rotated on the undersirable e-graveyard shift more
frequently than the other men in his department. The respondent
(lid not attempt to explain these assignments. We find that this treat-
ment accorded Novak was directly attributable to the respondent's
hostility toward the Union.
Clyde Rhoden joined the Union in January 1941, and began wear-
ing his union button to work about February 1. A few days later
he was summoned to the office of his foreman, Wingo. Rhoden testi-
fied without contradiction that Wingo stated :
That I wasn't the boy I used to be around here; that it seemed
like I had lost my attitude. He said that they could usually help
a fellow until he lost his attitude around there and then there
wasn't milch they could do for me.
Wingo did not offer any explanation of these statements. Upon the
entire record, we find, as did the Trial Examiner, that the "attitude"
Wingo referred to was Rhoden's attitude toward self-organization,
disclosed by his joining the Union.
Pawling, temporary strawboss in the tire-inspection department,
testified without contradiction that on February 11, 1941, Foreman
Blake told him that the Union had made of Akron, Ohio, a ghost
city and that if "the Union ever got into the Gates Rubber Company
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they would have to shut their, doors because they couldn't afford to
pay union wages."
During the lunch period and after working hours Novak was active
in soliciting fellow employees to join the Union. In the latter part
of April 1941, Foreman Vickers told him that he knew about these
activities and warned him to discontinue them.
James McFarland joined the Union about April 1941. He testified
without contradiction that on May 9, 1941, Foreman Vickers stopped
him on the way to the locker room and engaged in the following con-
versation :
"Well, he [Vickers] asked me if I liked to work at Gates. I
said, "Yes."
He said, "Do you appreciate your job?"
I told him, "Yes, I appreciate my job."
He said, "Well, how about showing it?"
Well, at first I didn't catch on to what he was talking about.
He kept repeating about my showing my appreciation and
finally it struck me that he was talking about the Union. I
said, "Do you mean about the Union?"
He said, "Yes." He said, "If I was you I would watch out.
You just keep it up and see what happens."
We find, as did the Trial Examiner, that the respondent, by its
entire course of conduct as shown by warning Roberts not to join
the Union ; by questioning Campbell about attending a union meet-
ing; by threatening that union members would be laid off first in tho
event of a lay-off; by requiring applicants for employment to state
their union membership; by making anti-union talks at the classes
conducted by it; by threatening that employees would lose their vaca-
tions with pay, holidays with pay, and other benefits if, the plant
were organized; by questioning employees about union membership;
by threatening employees with discharge if they joined the Union;
by warning employees to cease organizational activities for the
Union; by discriminatory assignment of work to employees who were
union members; and by other anti-union acts and statements set
forth herein, has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
B. Discrimination in regard to, hire and tenure of employment
1. Frank Samuelson,
The complaint alleged that the respondent discriminatorily re-
fused to reemploy Frank Samuelson.
Samuelson was employed by the respondent in December 1936. He
joined the Union in about July 1937 when the Union was making
GATE, I RUBBER COMPANY 433
its first drive to organize the respondent's plant. Shortly after he
became a member, Foreman Vicker,, asked him if he had joined the
Union and he admitted that he had. During his employment Samuel-
son had worked on all the various jobs in the wrapped-hose depart-
ment. His starting wage was between 35 and 40 cents an hour. By
October 1937 his wages had been increased to 59 cents an hour aT
a result of general increases given to all satisfactory employees.
Samuelson and Albert Graff voluntarily quit their employment
with the. respondent in October 1937 to go into private business.
Their business venture was a failure. In about November 1939,
Samuelson applied for work at the respondent's personnel office.
Although at that time men were being hired to work in the wrapped-
hose department, Personnel Manager Brown refused to accept
Samuelson's application. Brown told him that he would never be
reemployed by the respondent because Phillip Lasher, foreman in
the wrapped-hose department, did not want him. Brown concluded
the interview by telling Samuelson to seek a job elsewhere. A few
days later Samuelson told Lasher what Brown had said. Samuelson
testified without contradiction that Lasher said :
I can't understand it because . . . your work was satisfactory
while you worked there and I would be glad to take you back
if the company could hire you.
Samuelson renewed his attempts to secure employment with the
respondent in July 1940. On this occasion he talked to Smith, as-
sistant to Brown, who told him to fill out another application card
because the respondent was hiring men. Smith further suggested that
Samuelson keep in touch with the personnel office from time to time.
A week or two later Samuelson left Denver and secured employment
in a coal mine.
Samuelson applied at the respondent's personnel office twice in No-
vember 1940. On the first occasion Smith told him that Brown was
too busy to see him. Samuelson testified without contradiction that
on that evening he talked to Lasher, who told him that he, Lasher,
expected to rehire Samuelson to succeed the operator of the wrapping
machine, who was going to quit. Lasher cautioned Samuelson to
verify the fact that his application for work was on files The.next day
Samuelson called on Smith who, after checking the records, assured
him that his application was on file and showed Samuelson his card.
During the remainder of the week Samuelson waited for a call to
come to work which Lasher had indicated would be forthcoming.
However, he was not called. Early the next week Samuelson tele-
phoned Lasher and asked why the respondent had not notified him
° The respondent periodically destroys accumulated applications
455771-42-vol 40-28
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to report for work. Samuelson testified further, without contradic-
tion, that Lasher told him, "There seems to be some difficulty or some-
thing wrong-some difference between you and the company."
Samuelson asked, "What do you mean?" and Lasher replied, "Well, it
seems as they still have it in for you because you joined the Union
while you worked out there." 7 Samuelson testified further that in the
latter part of December 1939 he met Robert Davis, a shift foreman in
Lasher's department, at a dance and that Davis told him also that the
respondent's refusal to reemploy him was based on his, Samuelson's,
union activity. Davis denied on the witness stand that he made such
a statement. Upon the entire record, we credit Samuelson's testimony
On about December 11, Samuelson succeeded in seeing Brown, and
asked him for work. Brown pleaded ignorance of the fact that Sam-
uelson had been seeking work and inquired if there was anything
wrong with his record. Samuelson said that he had been told that
the respondent resented his having joined the Union. Brown assured
Samuelson that he had been misinformed and that the respondent did
not "hold anything against Union people." He examined Samuel-
son's employment card and remarked that it was "a fine record."
Samuelson informed Brown that Lasher and Davis had told him that
the respondent "had it in for him" because of his union membership.
Brown called Lasher and Davis to the office; and both of them denied
Samuelson's statements." Lasher admitted, in Brown's office, that
Samuelson "used to be a pretty good guy;" but said that he did not
know what to think of him since "he started the discrimination charges
against the company." 9 Before the interview terminated, Brown sug-
gested to Samuelson that in view of what had occurred he probably
would not wish to return. Samuelson at first agreed with him, but
when Brown, Lasher, and Davis stated that he would be treated like
any other employee, he said that he would return to work if given the
.opportunity. Samuelson's testimony with regard to this conference,
upon which the foregoing findings are based, is undisputed.
Samuelson again called on Brown on December 19. At his request
Brown gave him a letter of recommendation to the effect that while
in the respondent's employment his work had been satisfactory.
After receiving the letter Samuelson again asked Brown for employ-
ment, but his request was denied.
Graff, who was not a member of the Union, was rehired by the
respondent about a month and a half after he "really tried hard to
Although Lasher denied this statement at thr conference with Brown on December 11,
referred to below , he did not make such a denial at the hearing herein
8 See footnote 7, supra
9 Samuelson did not file a charge with the Board until about December 18, 1940 , but prior
to that time he had talked with a Board representative concerning his attempts to secure
employment with the respondent.
.GATEI8 RUBBER COMPANY 435
get on.". Furthermore, it was the respondent's usual policy to rehire
former employees if there was work available for them. The only
reason assigned by the respondent at the hearing, for refusing to re-
hire Samuelson was the unexplained statement of Personnel Director
Brown that Foreman Lasher was opposed to rehiring him 10
In view of the respondent's hostility to the Union, its knowledge
that Samuelson had been one of the first to join, the admissions made
to Samuelson by Lasher and Davis that he was not being rehired be-
cause of his union activity, and the other circumstances set forth
above, we find, as did the Trial Examiner, that the respondent re-
fused to rehire Samuelson in November 1939 and thereafter because
of his union membership and activities. By thus discriminating in
regard to Samuelson 's hire and tenure of employment, the respond-
ent discouraged membership in the Union, and interfered with, re-
strained , and coerced its employees in the exercise of the rights -guar-
anteed in Section 7 of the Act.""
2. Irvin Larson
The complaint alleged that the respondent discriminatorily re-
fused to reinstate Irvin Larson.
Larson entered the respondent's employment on May 11, 1939, at
40 cents an hour. In October 1939 he was transferred to the tire-
inspection department. In that department his wages were increased
to 55 cents an hour and a bonus, the maximum rate paid in the de-
partment. Foreman Tanner testified that Larson was a good worker.
Larson joined the Union in July 1940, and was an active member.
He was the only man in his department who wore a union button
at work. He testified without contradiction that Brown had seen
him-sign up another employee, and that other supervisors had seen
him distributing union handbills outside the plant.
During the latter part of August 1940, the respondent was reduc-
ing its force in the tire-inspection department. Larson testified that
on August 29, 1940, he asked Tanner to be permitted to take the lay-
off scheduled for another employee, Cook, because he, Larson, could
work at an airport in Denver and learn to fly; that Tanner refused
his request but told Iiim that if' he would quit, his service record with
the respondent would not be broken, provided that he returned to
"In its brief the respondent asserts that it refused to rehire Samuelson because of his
"temperament , his habits , his drinking and his frequent fusses with foremen . " How
ever , there is no evidence as, to these matters and they were never given to Samuelson as
reasons for not rehiring him
n Phelps Dodge Corporation v. N. L R. B., 313 U. S. 177
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work within 6 months; 12 that he took this offer under advisement;
and that when Tanner came to him the next day and renewed the
offer, he accepted it.
Tanner denied that he had any such conversations or understand-
ing with Larson, and testified that 'Larson, without any previous
notice, abruptly quit his job at the end of his shift on August 30;
that when he asked Larson why he was quitting, Larson told him
that he was doing so because he did not like his work and was going
to work at the airport the following morning on a job which offered
better opportunities and which would prevent his being drafted into
the Army.
The termination report which Tanner and Larson signed stated
that Larson had quit of his own accord to accept other employment;
and that Tanner would reemploy him. If Larson had quit his job
under the untoward circumstances claimed by Tanner, the latter
would hardly have stated on the termination report that he would
rehire Larson. Tanner testified that he made this statement in
Larson's presence on August 30; that he changed his mind a few
days later ; and that he decided, after talking with his shift foreman,
that he would not rehire Larson. Such decision was never com-
municated to Larson.
Under the respondent's rules, if Larson had not quit on Friday,
August 30, he would have been entitled to receive his wages for
the following Monday, which was Labor Day.13 When Larson fin-
ished his shift on August 30 and was in Tanner's office, he raised
the question of his being paid for Labor Day. Tanner agreed that
he would be paid. Apparently this agreement was reached after
the termination report had been made out to show Larson had quit
on August 30, because a line is drawn through that date and Sep-
tember 2 is substituted. In order to grant Larson this favor, Tanner
had to show on the report that Larson was an employee of the
respondent on September 2, although he knew Larson was going to
work for another employer on August 31. Such conduct of Tanner
impeaches his testimony as to the circumstances under which Larson
quit the respondent's employment and shows, contrary 'to Tanner's
claim, that Larson did not quit abruptly.
Upon the entire record, we credit the testimony of Larson, as did
the Trial Examiner, and find that he left the respondent's employ-
ment under the circumstances which he described.
12 Under the respondent 's published rules, if-Larson was laid off , his service record would
be unbroken upon his return to work within 6 months, because he had worked for the re-
spondent for mole than a year . If Larson had quit without the agreement he claimed
Tanner made with him , he would have returned as a new employee.
13 August 30 fell on a Friday. The production departments of the plant then operated
on a 5 -day week, so production operations were not resumed until Tuesday , September 3.
GAFTEIS RUBBER COMPANY 437
On November 23, 1940, Larson went to the respondent's plant and
filled out a special card used by the respondent in the case of old
employees who were seeking reemployment. He talked to Tanner
on the plant telephone, and testified that when he told Tanner that
he would like to go back to work, Tanner replied that he would call
him when there was an opening. Tanner's version of the conver-
sation was that Larson asked if there was an opening for him, that
he replied in the negative, and that he refused to grant Larson a
personal interview. Upon the entire record, we find, as did the Trial
Examiner, that Larson's version of what was said is the correct one.
From about December 1, 1940, to about March 16, 1941, Larson
visited the respondent's employment office an average of two or three
times a week without success. On about January 31 he secured his
first interview with Personnel Manager Brown. He told Brown that
he, was anxious to get back to work before his 6 months were up
and thus preserve his seniority. Brown replied, "you lost that when
you quit." When Larson explained his agreement with Tanner,
Brown told him that Tanner did not have authority to make such
an agreement.14
Grant Pawling, part-time strawboss in the tire-inspection depart-
ment, testified without contradiction that the respondent put at least
12 individuals to work in this department between December 7, 1940,
and April 28, 1941, 3 of them former employees who had quit and lost
their seniority'15 and 7 of them new, employees.16 His further uncon-
tradicted testimony is that none of these 12 persons was a member of
the Union at the time he was hired. On no occasion, on the other hand,
did the respondent offer Larson any reason for its refusal to reinstate
him. Likewise the, respondent made no attempt at the hearing to
explain its failure to reemploy him.
In view of the respondent's hostility to the Union, Larson being
the only employee in his department who wore a union button, the
circumstances under which he left the respondent's employment, Tan-
ner's judgment that he was a desirable employee, and the fact that the
respondent hired less experienced, non-union persons to work in Lar-
son's department while not explaining why it did not,rehire Larson,
we find, as did the Trial Examiner, that Larson was refused reinstate-
ment because of his union membership and activity. By thus refusing
to reinstate Larson, the respondent discriminated in regard to his hire
and tenure of employment, and thereby discouraged-membership in
the Union and interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
ll
14 We need not, and accordingly do not, decide whether Tanner had such authority.
'b Seifert , Simmons, and Guerin
10 Marlett, Slusher, Sheve, House, Evans, Buckles, and Anger.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Charles D. McCarty
The-complaint alleged that the respondent discriminatorily-dis-
charged McCarty on about January 20, 1941. ,
McCarty was employed by the respondent as an unskilled worker in
the millroom from December 1938 until his discharge on January 20,
1941. During this period he worked at various jobs in that depart-
ment and his hourly wage was gradually increased from 40 to 6d
cents.
The millroom in the respondent's plant is about 600 by 300 feet.
It contains some 30 or 40 mills, mixers, and calenders used to break
down, mix, and refine rubber compounds and rubber, and to plasticate
rubber. Approximately 150 workers are employed in this room, many
of whom feed material to, and remove products from, such machines.
The machinery in the millroom is dangerous and there have been some
serious accidents in that room.
In August 1940, McCarty began to wear his union button to work.
Immediately following this, McCarty was assigned "the wost jobs iii
the millroom-sweeping, bailing sacks, and general flunkey work."'
As found above, McCarty was accorded this discriminatory treat-
ment because of his union membership and activity.
On Monday, January 6, -1941, McCarty and Matthew Dickman, also
a millroom employee, went to work with signs on the front and back of
-their sweat shirts, which they wore outside the bibs of their overalls.
The signs on McCarty's shirt were made with indelible ink in letters
about 2 inches in height. The sign on the front read, "C. I. 0.-
Join." On the back of the shirt appeared the words, "Don't be a
Coward. Join the U. R. W. A." 17
Upon seeing the signs worn by McCarty and Dickman, Shift Fore-
man Berry reported them directly to Superintendent, Bosley.18
Bosley went to the millroom and inspected the sign on the back of
McCarty's shirt. According to McCarty, Bosley said, "I wish you
wouldn't wear that shirt. We don't like it"; and McCarty replied,
"I know damned well you don't like it," whereupon Bosley said,
"Now, we don't want any trouble with you fellows. You go on
downstairs and change your shirt, and there will be nothing said
about it.18 According to Bosley, he told McCarty that the shirt was
11 McCarty testified that in December 1940 he worked with a sign on the back of his
sweat shirt reading , "Join the C I O " The lettering was made with chalk and the evidence
is not clear as to just how prominent the sign was . McCarty further testified that he con-
tinued to wear this shirt at work until up to and including the first week in January 1941
without objection from the" respondent and without protest from any fellow workers.
McCarty testified that he substituted the "Don't be a Coward" shirt on January 6 because
he decided that he "needed a better sign "
ss Barry's immediate supervisor was Department Foreman Bradtke.
19 Dickman promptly substituted a shirt without a sign on it when he was told to do so
by Bosley.
GATES RUBBER COMPANY 439
a safety hazard because it would attract the attention of people who
walked through the room and they might get hurt, and that the
shift foreman had reported that some of the employees had objected
to being called a coward. During all the time McCarty wore the
shirt in question there were but five complaints about it registered
with Barry by millroom employees . 20 All such complaints were made
to him after Bosley talked to McCarty on January 6. McCarty, who
the Trial Examiner found was a frank witness , testified that the only
explanation Bosley made to him was that'he did not like the -shirt.
We reject, as' did the Trial Examiner, Bosley's testimony that he
explained to McCarty that he objected to the shirt as a safety hazard.
McCarty told Bosley that he did not have another shirt in his
locker. Bosley told him that he could go home and change his shirt
on company time. McCarty left the plant but, instead of going home,
he went to the office of the Union "for instructions ." Later he inter-
viewed the Regional Director of the Board, who told him to go back
to work. After an absence of between 2 to 4 hours , 21 McCarty re-
turned to the plant wearing the same shirt , which was then tucked
under the bib of his overalls. Barry called Earl Fischer , night super-
intendent . , McCarty told Fischer that because his wife was ill he
did not have another shirt, and that Fischer must decide whether he
should resume work . Fischer then told McCarty that it was against
the respondent's policy "to allow signs to be worn on anyone 's back" 22
because such signs were a "safety hazard ." However, Fischer per-
mitted McCarty to finish out his shift after warning 'him that he
would be discharged if he wore the shirt again.
The next day McCarty arrived at the plant about an hour before
his shift started. He spent that time talking with Bosley in the
latter's office . McCarty complained to Bosley that the respondent
had neglected to keep safety devices in working order in the millroom
and that the Safety Council was not functioning in that department.
He submitted to Bosley , a 3-page article dealing with these matters.
The article also mentioned a fatal accident which had occurred in the
millroom about April 1940 : McCarty told Bosley that he proposed
to publish the article . 23 However ,- McCarty destroyed the article in
Bosley's presence , after Bosley had made a copy of it. McCarty
asked Bosley whether he had changed his mind about his, McCarty's,
20 It appears that the men complained of the implications of cowardice in the message
lettered on the shirt
n Accordin z to Barry, McCarty was away from the plant on this occasion for 4 hours.
22 Prior to January 1941, several employees in the millroom were permitted without objec-
tion to wear shirts or frocks on the back of which appeared signs , usually the name of a
former employer.
23 McCarty testified that he had intended to'print it in the Progress News, a plant news-
paper.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wearing the shirt with the sign. Bosley said that he had not, and that
McCarty would be discharged if he wore the shirt so that the sign
could be read.
After leaving Bosley's office, McCarty went on shift wearing the
shirt in question under the bib of his overalls. McCarty testified that
about an hour later Bosley approached him while he was working and
accused him of "double-crossing", him by wearing the shirt again; '1
that he denied the accusation and told Bosley that as the shirt was
under the bib, he did not see why there should be any "commotion"
about it; 25 that Bosley asked how long it would take him to change
shirts; that he replied that he "could get the job done by the end of
the week . . . ," and that thereupon Bosley said, "Aw, hell !" and
walked away. Bosley testified that McCarty told him during this
conversation that his wife was ill and his other shirts were in the
laundry, and that he, Bosley, gave him permission then to wear the
shirt with the signs under the bib of his overalls until pay day, which
was the following Thursday, when McCarty could get another shirt.
McCarty continued to wear the shirt through Friday without further
objection from the respondent. We credit, as did the Trial Examiner,
McCarty's version of the above colloquy between him and Bosley.
Beginning on January 13 and during the following week, McCarty
wore a shirt without any signs. On Thursday or Friday of that week
he received a note from Bosley which read : "Thanks for your Safety
Suggestions. I will follow thru on', them." This referred to the
article on safety conditions and to the talk McCarty had with Bosley
in the latter's office on January 8.
On Monday, January 20, McCarty again wore the "Don't be a
Coward" shirt. The lettering had been dimmed by laundering and he
wore it under the bib of his overalls. McCarty testified that he wore
this shirt because his other two shirts were being laundered. He had
been working about 2 hours when Fischer sent him home and told
him to return the next morning to see Brown.
McCarty reported to Brown the next morning. During this inter-
view McCarty denied that he had breached any agreement by wearing
the shirt the day before. Brown attempted to persuade him to seek a
job elsewhere. McCarty asked whether he was "being discharged for
wearing signs on my shirt?" and Brown replied in the affirmative.'
McCarty remarked that he had expected to be discharged if he wore
the shirt again "because I had been ridden in there ever since I joined
the Union, and I expected it any day." The record does not disclose
what answer, if any, Brown made to this remark. McCarty then
''ti Bosley claimed that McCarty had agreed the day before to discontinue wearing the
shirt.
15 As thus worn only the letters "DON -A COW-D" were visible
GATE;Si 'RUBBER COMPANY 441
asked for his check and waited until it was made out. With his check
he received a termination notice stating that he was discharged on
January 21, 1941, "for unsafe practices."
On January 22, McCarty applied to Brown for reinstatement.
Brown refused on the ground that it would not "be wise" to put him
back to work.'
The respondent contends that it discharged McCarty because his
wearing the shirt with the signs constituted a "safety hazard" 'and
"insubordination." We reject this contention, however, as did the
Trial Examiner, for the following reasons : The respondent permitted
McCarty to wear the shirt at work on January 6, 7, 8, 9, 10, and 20 26
Moreover, the signs related to union activity, and the respondent had
in other respects displayed its hostility to, and its readiness to dis-
criminate because of, such activity. Thus, on a prior occasion the
respondent had discriminated against McCarty by assigning him to
undesirable tasks because he had worn a union button. Although
McCarty's wearing the shirt on January 21, might be deemed in viola-
tion' of orders, he sought to comply therewith by covering the signs
with his overalls. Under these circumstances and upon the entire
record, we find that_the respondent discharged McCarty on January
21, 1941, not because his sweater created a safety hazard or because
he had violated an order, but because the respondent was opposed to
union membership and activity. By thus discharging McCarty, the
respondent discriminated in regard to his hire and tenure of employ-
ment, and thereby discouraged membership in the Union and inter-
fered with, restrained, and coerced its' employees in the exercise of
the rights guaranteed in Section 7 of the Act.
4. Clyde Rhoden
The complaint alleged that Rhoden was discriminatorily discharged
on about March 3, 1941.
Rhoden was hired by the respondent in the early part of June 1940.
He worked in the stockroom under Foreman Wingo, who, as supervisor
of both the tire and accessory stockrooms, assigned a more or less
permanent crew to each room to fill orders, and in addition used other
employees interchangeably to.fill orders and do other work as required.
Rhoden was in the latter group. When first hired, he hauled and
sorted stock in each room. He was later assigned to filling accessory
orders. In the summer or early fall of 1940 he was assigned to filling
tire orders under Strawboss Jessen. Wingo testified that Rhoden
' 20 The respondent's brief urges that Bosley dial not discharge McCarty on January 7
because Bosley "was very careful and cautious." But even if Bosley felt that caution in
handling McCarty was paramount to the safety of other employees, he could nevertheless
have refused to permit him to work when he wore the shirt in question.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was thus assigned because he had made "Quite a few errors" and mis-
takes in handling accessory orders and also because errors in filling
the tire orders could be caught by the shipping department. Wingo's
testimony was substantially supported by that of Jessen and Koehrer,
the assistant foreman. Wingo testified that a short time later, be-
cause of Jessen's complaints that Rhoden made too many mistakes in
filling tire orders, he reassigned him to the accessory stockroom to do
miscellaneous jobs "where he couldn't make too many errors." On
about December 1, 1940, according to Wingo's further testimony, he
again assigned Rhoden to filling accessory orders, because he felt that
by that time Rhoden had worked in the accessory stockroom long
enough to be familiar with it and to be able to fill orders without too
many errors.
Rhoden joined the Union in January 1941, and began wearing his
union button to work on about February 1. A few days later he was
summoned to Wingo's office and told that his "attitude" had changed
and that once a "fellow had lost his attitude there wasn't much" the
respondent "could do for him." As found above, the "attitude" re-
ferred to by Wingo related to Rhoden's union membership. Follow-
ing this conversation, however, Rhoden was again transferred to
another section.
On March 3, 1941, the respondent received a telegram from a cus-
tomer which read as follows :
Order 4203 just received and two ten-foot gasoline hose shipped
instead of one 20-foot . . . This is the third time we have or-
dered this. Please ship 20 foot one piece with couplings.
Wingo's uncontradicted testimony is that the error referred to in the
telegram was Rhoden's. Following receipt of the telegram Wingo
came to Ellsworth, superintendent of the stockroom, and discussed
the unsatisfactory work of Rhoden. Ellsworth consulted Denman,
`factory superintendent, who was a member of the respondent's com-
mittee on employee discharges. Denman individually authorized the
termination of Rhoden's employment, but did not consult the com-
mittee." Ellsworth then told Wingo to discharge Rhoden; where=
upon on March 3, 1941, Wingo called Rhoden to his office and dis-
charged him.
The respondent conceded that all order fillers made some mistakes,
but contended that Rhoden was discharged because he was a "chronic
error maker." On the occasion of discharging Rhoden, Wingo ex-
27 Superintendent Bosley testified that about June 1940, the respondent established a com=
mittee of three , composed of ranking sppervisors , to whom a proposed discharge should be
referred and approved before it could be ' effective . Bosley explained that the committee
was established to prevent an employee from being discharged for union activities. It
appears that such a committee functioned only sporadically, if at all.
e.- I" GATES 'RUBBER COMPANY 443
plained- to Ellsworth how he had used Rhoden to fill orders for
accessories and tires, and produced for his inspection company rec-
ords showing that between, October 17, 1940, and March 3, 1941,
Rhoden had made 18 mistakes in filling orders. Ellsworth testified
that after checking the 18 mistakes it was his "firm conviction" that
Rhoden was a "chronic error maker" and told Wingo to discharge
him. An examination of the 18 mistakes shows that 5 were called
to the attention of the respondent by customers in October, 3 in
November, 3 in December 1940, 5 in January, 1 on February 6, and
1 on March 3, 1941. Wingo and Koehrer testified without contra-
diction that Rhoden committed five times as many errors as the
other employees in his department. In addition to these 18 mistakes
there were numerous other errors committed by Rhoden and of which
no written record was kept. Rhoden readily admitted on the wit-
ness stand that he made mistakes in filling orders, that Wingo had
discussed them with him, and that the respondent had treated him
fairly.
According to Personnel Manager Brown, it was the policy of the
respondent to transfer an employee to work to which he was fitted
rather than discharge him, if the employee ,was a willing worker and
had a satisfactory attitude. While Rhoden was not transferred to
entirely new work or to another division of the respondent's plant,
there is ample evidence that during the 9 months in which he worked
for the respondent Rhoden was shifted from job to job within the
respondent's large stockroom in an effort to find a task suited to his
abilities. Rhoden's last transfer took place after the anti-union
statement made to him by Wingo.
- While the matter is not free from doubt, we find upon the entire
record, that the respondent did not discriminate with respect to the
hire and tenure of employment of Rhoden.
5. Cal F. Stuchlick -
The complaint alleged that the respondent, by assigning Cal F.
Stuchlick to low-paid work in the fall of 1940, by laying him off from
January 10 to January 22, 1941, and by assigning him thereafter
again to low-paid work, discriminated in regard to the hire and
tenure of his employment.
Stuchlick entered the respondent's employment in November 1938,
and worked continuously on the refinery line as a mill operator or as
warm-up man on a tuber mill until August 5, 1940, when he was laid
off because of a reduction in force. During this period Stuchlick's
hourly rate had increased from 40 cents to 56 cents.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
k
Two days later, on August 7, Brown, who is superintendent of the
reclaim department, as well as personnel manager, recalled Stuchlick
to the plant because, as Brown testified, he found from company rec-
ords that Stuchlick had several months' experience in mill operations.
He interrogated Stuchlick concerning such operations. Brown testi-
fied that he concluded from Stuchlick's answers that he was qualified
for a "try out," and decided to give him "another chance" to "make
good." Stuchlick Was put to work at 56 cents an hour plus a bonus
as strainer operator in the reclaim department. On September 4,
after about 2 weeks on this job, one of the three refinery lines in the
reclaim department was shut down for repairs. The employees were
reassigned to work on the remaining two refinery lines during the
shut-down. In this reassignment Stuchlick was eliminated as
strainer operator because he lacked departmental seniority. Ralph
White, his foreman, gave him the option of being laid off or of sorting
tubes at 50 cents an hour while the line was being repaired. Stuck=
lick elected to sort tubes.
A substantial number of the millroom employees had joined the
Union and wore their union buttons at work. - Stuchlick did not join
the Union until sometime after August 5, 1940. On September 18,
following Stuchlick's affiliation with the Union, Brown and Stuch-
lick discussed the latter's union membership. Stuchlick testified as
follows about this conversation :
I was cleaning up around the watering tank. He [Brown]
came up to me and said, "How are -you doing?" I said, "All
right." He' said, "What about this Union?" T said, "We have
a representative that can answer your questions better, if you
have any, than I." _ He said, "What I mean is this : Why did
you join the Union?" I said, "I think that the Gates employees
need a little more protection than they are getting from the
company." He said, "If I knew that was the way you were feel-
ing about it I wouldn't have put you'back to work. What are
you going to do, go to the company or to the Union." I looked
at him and said, "I.am a Union man." He said, "You know it
wouldn't hurt Mr. Gates to close this plant down," and he then
.pointed to himself and said, "But it would hurt me. I would
be out of job." That was the end of the conversation.
Brown denied having such a conversation with Stuchlick. He testi-
fied that on September 4-a date of which he was certain because as he
testified, he made a note of it as soon as he went back to his office-
he was inspecting some equipment in the reclaim department where
Stuchlick was sweeping, and asked him how he was getting along.
Brown testified that Stuchlick answered, "All right. Mr. Brown,
N
i GATES RUBBER COMPANY 445
I want to give you notice that I joined the Union." We consider,
as did the Trial Examiner, that it is unlikely that Stuchlick • thus
volunteered to Brown the information about his union membership,
and we find, as did the Trial Examiner, that the conversation took
place as testified to by Stuchlick.
On December 24, the repaired line resumed operation. Stuchlick,
however, was not restored to his former position of strainer operator
but was required to continue to sort tubes and to perform other mis-
cellaneous and temporary work. When sorting tubes, he was paid 6
cents an hour less than he had received as strainer operator. His in-
come was further reduced an average of $3 a week because as a tube
sorter he did not share in any group bonus such as he had partici-
pated in as strainer operator.2$
Brown sought to justify the failure to put Stuchlick back as
strainer operator on and after December 24 on two grounds : (1)
Stuchlick's employment on August 7 was temporary and only for a
probationary period; and (2) the probationary period expired on
September 4 and Stuchlick had not "made good" as strainer operator.
Brown, however, admitted that he called Stuchlick to the plant on
August 7, 2 days after he had been laid off and rehired him to work
in the reclaim department when there was no job open in that de-
partment. He instructed Foreman White to make an opening in the
department for him as an experienced milling-machine operator. In
order to comply with Brown's instruction, it was necessary for White
to demote- another employee, Bergano, froln strainer operator to tube
sorter, although Bergano's work, according to White and Strawboss
Claiborn, had been 'entirely satisfactory.
In his testimony Foreman White first implied that on December
24, when the repaired refinery line resumed operation, he hired a new
employee to operate the strainer at 40 cents an hour because Stuch-
lick had been paid 56 cents an hour. But upon cross-examination he
admitted that Bergano, the employee who was displaced by Stuch-
lick, was again given the assignment as strainer operator, was paid
59 cents, and has since been raised to 64 cents. He therefore con-
ceded that the change was not prompted ' by economy. Thus dis-
credited, White sought to establish imperfections'in Stuchlick's,work
while he operated the strainer. - White testified, and was substan-
tially supported by Claiborn, "head mill man" on the refinery line,
that the-main fault with Stuchlick's work was that he did not prop-
28 During the spring of 1941 Stuchlick 's weekly Rage was increased on some four occa-
sions by working 6 days a week as opposed to the customary 5-day week upon which the
respondent operated The respondent contended that it offered Stuchlick various other
lobs after his transfer, on some of nhlch he would have been paid more than'formerly, but-
Stuchlick,turned down these lobs for various reasons, such as.that the work was dirty; un-
pleasant , outdoors , or seasonal.
446 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
erly control the heat or satisfactorily regulate the rolls of the mixer
mills. According to the respondent's testimony, either the mill oper-,
ator or the strainer operator might control the heat and regulate the
rolls of the mill. White stated that the strainer operator usually
did it because the product was fed to the strainer. Stuchlick testified
that his duties as strainer operator consisted of carrying stock from
one mill to the other and then removing and feeding such stock to-
the strainer, the operation of which he controled by means of a push
button, and that it was not his duty .to control the heat or regulate,
the rolls. We find, as did the Trial Examiner, that it was Claiborn's,
responsibility to see that the heat was properly regulated and the,
rolls properly adjusted.29 White also testified that Stuchlick was
unsatisfactory because he did not clean the strainer properly. Clai-
born, however,.did not corroborate White in this respect, but testified
that Stuchlick was too slow in removing and cleaning the strainer..
The respondent offered no examples of Stuchlick's failure to clean
the strainer or of his procrastination in this work. We find that the
respondent's testimony in this regard was unconvincing. Moreover,
the respondent's witnesses did not contend that Stuchlick's attention
was called to his alleged failure to clean the strainer or his delay in
so doing. It appears, furthermore, that after the refinery line re-_
sumed operation on December 24, several new men were hired for
various jobs on the line, and that some of these were jobs which
Stuchlick had previously performed.
White, who admitted that lie knew Stuchlick was a union member
because he had seen him wearing a union button, sought to explain
further the treatment which he accorded Stuchlick• on the ground that
Stuchlick did not "work well with a group" and that he did not
"cooperate" with the other employees. However, White offered no
examples of Stuchlick's failure to cooperate or wherein he failed to
"work well with a group." We find, as did the Trial Examiner, that
his testimony in this regard was vague and unconvincing.
In the light of- the established union hostility of the respondent,
Brown's admission to Stuchlick on September 18, that he was pre-
pared to discriminate against Stuchlick because of Stuchlick's union
membership, and the inconsistent and weak attempt of the respondent
to explain away its course of conduct in regard to Stuchlick, we find,
as did the Trial Examiner, that the respondent refused to restore
Stuchlick to his former position as strainer operator on December
24, 1940, because of his union membership and activity.. By thus-
refusing to restore Stuchlick to his former position, the respondent
discriminated in regard to his hire and tenure of employment; and
29 It was conceded by the respondent that Stuchlick did not damage any machinery or
stock.
GATES RUBBER COMPANY 447
thereby discouraged membership in the Union and interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
6. Jake Rommel
The complaint alleged that the respondent discriminatorily refused
to promote Jake Rommel in December 1940 to the position of calender
operator.
The Trial Examiner found, however, that he was not discriminated
against, and no exception has been taken to this finding. Upon the
entire record, we concur in the Trial Examiner's finding. We shall
therefore dismiss the complaint with respect to Rommel.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with its operations described in Section ' I
above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to labor dis-
putes burdening `and obstructing commerce and the free flow' of
commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor prac-
tices, we shall order it to cease and desist therefrom and to take affirma-
tive action designated to effectuate the policies of the Act.
We have found that the respondent discriminated in regard to the
hire and tenure of employment of Frank Samuelson, Irvin Larson,
Charles D. McCarty, and Cal F. Stuchlick because of their union
membership and activity. To effectuate the policies of the Act, we
shall order the respondent to offer to Irvin Larson, Charles D. Mc-
Carty, and Cal ' Stuchlick immediate and full reinstatement to
their former or substantially equivalent positions without prejudice
to their seniority and other rights and privileges, and offer immediate
employment to Frank Samuelson in the position to which he would
have been assigned in November 1939, absent the respondent's discrimi-
nation, or a substantially equivalent position, without prejudice to his
seniority and other rights'and privileges, and to make them whole-for
any loss of pay they may have'suffered by reason of the respondent's
discrimination by payment to each of them of a sum of money equal
to the amount he would normally have earned as wages from the date
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the discrimination to the date of the offer of reinstatement, less his
net earnings during such period.30
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Rubber Workers of America, Local No. 154, affiliated
with the Congress of Industrial Organizations, is a labor organization,
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ
ment of Frank Samuelson, Irvin Larson, Charles D. McCarty, and
Cal F. Stuchlick, and thereby discouraging membership in United
Rubber Workers of America, Local No. 154, affiliated with the Con-
gress of Industrial Organizations, the respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Section
8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
.of the Act.
5. The respondent has not engaged in unfair labor practices, within
-the meaning of Section 8 (3) of the Act, with respect to Clyde Rhoden
and Jake Rommel.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
,and pursuant to Section 10 (c) of the National Labor Relations Act,
,the National Labor Relations Board hereby orders that the respondent,
G'ates Rubber Company, Denver, Colorado, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Rubber Workers of Amer-
ica, Local 154, affiliated with the Congress of Industrial Organizations,
.or in any other labor organization of its employees, or in any other
30 By "net earnings " is meant eai pings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
wheie than for the respondent, which would not have been incurred but for his unlawful
.discrimination and the consequent necessity of his seeking employment elsewhere See
Mettei of Crossett Lumber Company and United Brotkeritood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L It B 440 Monies re-
^eived for work performed upon Federal, State, county, municipal, or other work-relief
protects shall be considered as earnings See Republic Steel Corporation v. N. L. R. B.,
311 U S. T.
GATES RUBBER COMPANY 449
manner discriminating in regard to their hire and tenure of employ-
ment or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activ-
ities for the purpose of collective bargaining or- other mutual aid or
protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Irvin Larson, Charles D. McCarty, and Cal F. Stuch-
lick immediate and full reinstatement to their former or substantially
equivalent positions, and offer immediate employment to Frank Sam-
uelson in the position he would have been assigned, absent the re-
spondent's discrimination, without prejudice to their seniority and
other rights and privileges;
(b) Make whole Frank Samuelson, Irvin Larson,, Charles D: Mc-
Carty, and Cal F. Stuchlick for any loss of pay-they may have suffered
by reason of the respondent's discrimination in regard to -their hire
and tenure of employment by payment to each of them of a 'sum of
money equal to that which he normally would have earned as wages
during the period from the date of the respondent's discrimination to
the date of the respondent's offer of reinstatement, less his net earn-
ings during such period;
(c) Post immediately in conspicuous places throughout its plant at
'Denver, Colorado, and maintain for a period of at least sixty (G0)
consecutive days from the date of posting, notices to employees stating
(1) that the respondent will not engage in the conduct from which it is
ordered to cease and desist in paragraphs 1 (a) and (b) of this Order;
(2) that it will take the affirmative action set forth in paragraphs
2 (a) and (b) of this Order; and (3) that the respondent's employees
are free to become or remain members of United Rubber Workers of
America, Local 154, affiliated with the. Congress of Industrial Organ-
izations, and that the respondent will not discriminate against any
employee because of membership or activity in that organization;
(d) Notify the- Regional Director- for the Twenty-second Region
in writing within ten (10) days from the date of this Order, what
steps the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the respondent engaged in unfair labor
practices within the meaning of Section 8 (3) of the Act with respect
to Clyde Rhoden and Jake Rommel.
455771-42-vol. 40-29