Kellburn Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Mar 17, 1944

55 N.L.R.B. 540 (N.L.R.B. 1944)

In the Matter of KELLBURN MANUFACTURING COMPANY , INC., and
HUDSON VALLEY DISTRICT , INTERNATIONAL LADIES' GARMENT WORK-
ERS' UNION, A. F. OF L.
Case No. -C- 832. Decided March 17, 1.944
DECISION
AND
ORDER
On November 27, 19431 the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in unfair labor practices affectir
commerce and recommending that it cease and desist therefrom and
that it take certain affirmative action, as set forth in the copy of the
Intermediate Report annexed hereto. Thereafter, the respondent filed
exceptions to the Intermediate Report. No brief has been submitted.
The Board has considered the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
Trial Examiner's rulings are hereby affirmed. No request for oral
argument was made by any party, and none was held.
The Board has considered the Intermediate Report, the exceptions
thereto filed by the respondent, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, except as modified below :
1. On August 28, 1943, as the Trial Examiner found, the respond-
ent posted in the plant a notice urging its employees to designate an
employee committee to act as their representative for the purpose of
dealing with the respondent with respect to grievances. However,
since the Trial Examiner did not consider the incident to be within
the scope of the complaint, he made no finding as to whether such con-
duct was violative of the Act. While the posting of the notice by the
respondent was not explicitly alleged in the complaint as an unfair
labor practice, it is our opinion that such conduct is a form of union
hostility, as found below, and as such is encompassed by paragraph
14 of the complaint. Besides, the posted notice was litigated without
' Said paragraph 14 alleges, in substance, inter aha, that the respondent expressed dis-
approval of the Union and urged, persuaded, threatened, and warned its employees to
refrain fromn assisting or joining the Union.
55 N. L R. B., No. 101.
540
KELLBURN MANUFACTURING- COMPANY, INC. 541
objection at the hearing. We shall therefore make a substantive deter-
mination of the issue. The record shows that the notice was posted
shortly after the Union began to organize the respondent's employees
and after the respondent had otherwise, as fully set forth in the Inter-
mediate Report, manifested hostility toward the Union. In the light
of the circumstances, it is apparent and we find that the respondent,
by suggesting in the posted notice that the employees form an em-
ployee committee to bargain directly with the respondent, sought to
eliminate the Union as a prospective bargaining representative for the
employees and to substitute therefor an employee grievance commit-
tee. The notice was an integral part of the respondent's entire course
of illegal conduct, as set forth in the Intermediate Report, designed
to forestall legitimate union organization and activity. We find that,
by posting such notice, the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by Sec-
tion 7 of the Act.
2. The Trial Examiner has found, and we agree, that in a prior
representation proceeding, pursuant to the results of an election con-
ducted therein by the Board among employees of the respondent
within an appropriate unit. the Union was duly certified as the ex-
clusive bargaining representative of such employees,2 and that there-
after the respondent refused to bargain collectively with the Union,
within the meaning of Section 8 (5) of the Act. The respondent
admits that it has refused to bargain with the Union but challenges
"the said election, the manner in which it was conducted and the
results and the directives issued thereon." In the present proceed-
ing, however, the respondent has raised no issue with respect to the
election which has not been heretofore presented by the respondent
and determined by the Board in the representation proceeding. We
have again considered the issues in the representation proceeding
and find that no prejudicial error was committed therein. The prin-
cipal issue there concerned the eligibility to vote of employees al-
legedly discriminatorily discharged, of strikers, and of strikebreakers.
Over the objection of the respondent, Ave excluded from participation
in the election, as voters, among others, persons first hired during
the strike and subsequent to the respondent's rejection of the strikers'
unconditional offer to return to work,3 and permitted, among others,
the strikers and the employees, allegedly discriminatorily discharged,
to vote, impounding the ballots of the latter group pending the out-
2 Matter of Kellburn Manufacturing Company, Inc, and Hudson Valley District , Inter-
national Ladies ' Garment IVorlers ' Union , A I' of L, 45 N L. R. B 322, Certification of
Repiesentatives issued on March 4, 194:1
'In our decision in the representation case , the Board stated ". . . the striking em-
ployees, upon making an unconditional offer to return to work, thereby acquired a right to
available lobs which for the purposes of determining eligibility to vote, is superior to the
right of employees hired after the unconditional offer. ' 45 N L R. B 322 at 327.
542 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
come of the election or disposition of the charges herein.4 Our deter-
mination that such persons were eligible or ineligible to vote, as the
case may be, is fortified by our findings herein that the respondent
discriminatorily discharged the employees referred to above, that
the strike was caused by the respondent's unfair labor practices," and
that the strikers did not voluntarily quit and sever their employment
relationship as the respondent contended .6
3. The Trial Examiner has found that Judy Robinson, one of the
strikers listed in Appendix B of the Intermediate Report, was dis-
criminatorily denied employment by the respondent on September
26, 1942, and has recommended that she be offered reinstatement with
back pay. However, the record shows that Judy Robinson was sub-
sequently reemployed by the respondent in March 1943 and that,
after working a day or two, she voluntarily quit her job with the
respondent. We shall therefore not require the respondent to offer
Robinson reinstatement and shall limit her back pay to the period
from September 26, 1942, the date that she was discriminatorily de-
nied reinstatement, to the date of her reemployment in March 1943.
4. The Trial Examiner's formula, set forth in the section of the
Intermediate Report entitled "The Remedy," for effecting the rein-
statement of all employees entitled thereto,' in the event there is in-
sufficient work for all such employees, is hereby clarified as follows :
All persons hired after September 18, 1942, the date of the commence-
ment of the strike, shall, if necessary to provide employment for those
to be offered reinstatement, be dismissed. If there is then not suf-
ficient work available for all employees, namely, the presently working
non-strikers and the employees to be offered reinstatement, all avail-
able positions shall be distributed among them without discrimination
against any employee because of his union affiliation or activity, fol-
lowing the system of seniority or other non-discriminatory practice
heretofore applied in the conduct of the respondent's business. Those
employees, if any, remaining after such distribution, for whom no em-
ployment is immediately available, shall be placed upon a preferential
list and thereafter offered employment in their former or substantially
equivalent positions as such employment becomes available and before
other persons are hired for such work, in the order determined among
them by said system of seniority or other non-discriminatory practice.
' The Board also permitted persons hired for the first time during the stiike but before
the strikers ' unconditional offer to return to work, to vote, and directed that their ballots
be similarly impounded.
5 Replacement employees hired by an employer during an unfair labor practice strike are
not entitled to participate with striking employees in an election to select a bargaining
representative . N. L. R. B. v. A. Sartorious & Co., Inc. (C. C. A. 2), decided January 31,
1944, 13 L. L R. 725.
In view of the number of votes cast for the Union at the election , the ballots ordered
impounded, as set forth above, could not have affected the result of the election.
7 The persons entitled to reinstatement include the 11 employees unlawfully discharged
by the respondent as well as the strikers discriminatorily refused reinstatement.
KELLBURN MANUFACTURING COMPANY, INC.
ORDER
543
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the respondent, Kellburn Manufacturing Company,
Inc., Saugerties, New York, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Hudson Valley District,
International Ladies' Garment Workers' Union, A. F. of L., as the
exclusive representative of all employees of the respondent, exclusive
of non-working supervisors and office and management employees,
with respect to rates of pay, wages, hours of employment, and other
conditions of employment;
(b) Discouraging membership in Hudson Valley District, Interna-
tional Ladies' Garment Workers' Union, A. F. of L., or in any other
labor organization of its employees, by discharging or refusing to
reinstate any of its employees or in any other manner discriminating
in regard to their hire and tenure of employment or any term or con-
dition of their employment,;
(c) 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
representatives of their own choosing, and to engage in concerted ac-
tivities 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 purposes of the Act :
(a) Upon request, bargain collectively with Hudson Valley Dis-
trict, International Ladies' Garment Workers' Union, A. F. of L., as
the exclusive representative of all employees of the respondent , exclu-
sive of non-working supervisors and office and management employees,
with respect to rates of pay, wages, hours of employment, and other
conditions of employment.
(b) Offer to the employees listed in Appendices A and B hereto,
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other
rights and privileges, in the manner set forth hereinabove and in the
section of the Intermediate Report entitled "The Remedy," and place
those employees for whom employment is not immediately available
upon a preferential list in the manner hereinabove set forth, and
thereafter , in said manner, offer them employment as it becomes
available ;
(c) Make whole the employees listed in Appendices A and B hereto
for any loss of pay they may have suffered by reason of the respond-
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's discrimination against them, in the manner set forth in the
section of the Intermediate Report entitled "The Remedy";
(d) Make whole Judy Robinson for any loss of pay she has suffered
by reason of the respondent's discrimination against her, by the pay-
ment to her of a stun of money equal to the amount she normally
would have earned as wages from September 26, 1942, the date that
she was discriminatorily denied remstatenzent, to the date that she
was reemployed by the respondent in March 1943, less her net earnings
during that period ;
(e) Post immediately in conspicuous places throughout its plant
at Saugerties, New York, and maintain for a period of at least sixty
(60) consecutive days, notices to its employees stating: (1) that the
respondent will not engage in the conduct from which it is ordered
to cease and desist in paragraphs 1 (a), (b), and (c), of this Order;
(2) that the respondent will take the affirmative action set forth in
paragraphs 2 (a), (b), (c), and (d) of this Order; and (3) that the
respondent's employees are free to become and remain members of
Hudson Valley District, International Ladies' Garment Workers'
Union, A. F. of L., and that the respondent will not discriminate
against any employee because of his membership in or activity on
behalf of that organization;
(f) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
Mn. JonN M. Hous'roN took no part in the consideration of the above
Decision and Order.
A PPE YD IX A
Walter Perce Freligh Robert Lewis
Ida Smith (Benson) Donald Hauck
Hazel Mazdin Clara O'Bryon
Katherine Bulick Elizabeth Shackett
Frank Hill George I. White
Marie Dore
APPENDIX B
Grace Bennett
Frank Brandt
Augustus Brown
Donald J. Brown
Robert Brown
Hazel Bruno
Paul Buntel
Herman Daley
Peter Daley
H. L. Daniels
Marge Davis
Mary Dc Cicco
' Tncoriectly spelled in Appendix B of the Intermediate Report
KELLBURN MANUFACTURING COMPANY, INC. 545
Charles M. Diehl
Wright Ennis
Clara Erceg
Berit Evgenis
Wm. Farrell
Eileen Ferguson
Elizabeth Ferretti
Lester Gardiner
Kathrine Garrison
Donald Gutheil
Stella Haines
Robert Haller\beck
Ralph Hendricks
Ethel M. Holcomb
Clarence Hommel
Victor 1. Hommel
K. N. Houghtaling
Charles Hudson
Joseph Hull
Martin Hull
Ethel Humphrey
Clinton Johnson
Rose Jubie I.
Tony Kremm
John Lavelle
Randolph Legg
Emma McCarthy
Luther Mickle
Rose Mickle
Anna Minkler 1
Evelyn Murphy
Jeanette Murphy
Collins Myer
Clarence Myers
Robert Myer
James Myers
Milton O'Bryon
Thomas O*Connell
Virginia Ostyic
Dorothy Patterson
Bertram Quick
Edward Rickett
Agnes Robinson
Inez Reynolds
Julius R. Schmidt
Louise Schmid
Freda Short
Larry Spatz
John P. Staerker
Curtis Thies
Alice Tompkins
George Tymeson
Jennie Westergard
Robert Westergard
Alfred Whitaker
James Winters
'Louis Wrolsen 1
1NTERAIEDIATE REPORT
Al', Richard J Hickey. for the Board.
Mr 11Tax J Lovell, of New York City, for the respondent.
Isserman. Isserinan, and Ifapelsohn-, by Air. Sol D. Kapelsohn. of Newark,
N. J, for the Union.
STATEMENT OF TI1E CASE
Upon a third amended charge filed on June 17, 1943 , by Hudson Valley
District , International Ladies' Garment Workers ' Union , A. F. of L, herein
called the Union , the National Labor Relations Board, herein called the Board,
by the Regional Director for the Second Region ( New Yolk City ), issued its
complaint dated June 17, 1943 , against Kellburn Manufacturing Company,
Inc, Saugerties , New York, herein called the respondent , alleging that the
respondent had engaged in and was engaging in unfair labor practices , within
1 Incorrectly spelled in Appendix B of the Intermediate Report
5751 2 9-44-v-ol 55--36
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meaning of Section 8 (1), (3), and ( 5) of the National Labor Relations
Act, 49 Stat . 449, herein called the Act. Copies of the complaint , together with
notices of hearing thereon, were duly seived upon the respondent and the
Union
With respect to the unfair labor practices , the complaint alleged in substance
that the respondent : ( 1) on various dates during August and September 1942,
discharged and thereafter refused to reinstate 11 named employees because
of their union membership and activities ; ( 2) on and at all times after Sep-
tember 26, 1942, refused to reinstate 73 named employees ' who on that date
unconditionally applied for reinstatement , having on September 18, 1942, gone
on strike against the respondent ' s unfair labor practices , because they joined
and assisted the Union , joined in the strike , and refused to work during its
existence ; ( 3) on and at all times after March 24, 1943 , refused upon request
to bargain collectively with the Union which was at all such times the exclusive
repiesentative of all of the respondent 's employees within an appropriate unit;
(4) on and after August 26, 1942, vilified , disparaged , and expressed disapproval
of the Union; interrogated its employees respecting their union affiliation;
urged , persuaded , threatened , and warned them against assisting, becoming or
remaining members of the Union ; and kept union meetings under surveillance;
and (5 ) by such acts and statements interfered with , restrained, and coerced
its employees in the exercise of the tights guaranteed in Section 7 of the Act.
The respondent thereafter filed its answer dated June 28 , 1943, admitting certain
allegations of the complaint with respect to the nature of its business, but deny-
ing that it was engaged in commerce v^ithin the meaning of the Act, and the
commission of any unfair labor practices.
Pursuant to notice , a hearing was held at Saugerties , New York , from July 6
through 24 , 1943 , before the undersigned , Josef L. Hektoen , the Trial Examiner
duly designated by the Chief Trial Examiner . The Board , the respondent, and
the Union were represented by counsel and participated in the hearing Full
opportunity to be heard , to examine and cross -examine witnesses , and to intro-
duce evidence bearing on the issues was afforded to all parties . At the close of
the Board 's case , counsel for the respondent moved to dismiss the complaint
The motion was denied by the undersigned . At the close of the Board 's case and
again at the close of the hearing , the motions of counsel for the Board to conform
the pleadings to the proof in respect to formal matters were allowed by the under-
signed without objection . Although afforded opportunity to do so, the parties did
not argue orally before the undersigned or file any briefs with him
Upon the entire record in the case , and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Kellburn Manufacturing Company, Inc, is a New Fork corpor-
ation maintaining its office and place of business in Saugerties, New York. On
November 2, 1942, the Board after hearing upon petition by the Union for the
certification of representatives, issued its Decision and Direction of Election
wherein it found that the respondent was "engaged in the manufacture of canvas
products, namely, tents, pistol belts, pontoon cases, haversacks, and field bags
for the United States Government. Most of the raw material used in manu-
1 At the close of the hearing, the complaint was dismissed upon motion of counsel for
the Board as to three such employees : Harriet Quick, Mary Hennegan , and Jess Ricks.
KELLBURN MANUFACTURING COMPANY, INC. 547
facturiug the above-named products is furnished by the United States Govern-
ment, and is shipped to the Company's plant from depots outside the State of
New York. The finished products are shipped to various points in the United
States, mostly out of the State of New York, on Government bills of lading. Dur-
ing the past 6 months, shipments of raw material and of finished products, re-
spectively, exceeded in value $25,000." 2 At the hearing in the instant case, the
respondent refused to divulge figures or estimates of the volume of its business,'
but Verne P. Rathbun), its president, asked by counsel for the Board if the
figures with respect to, its business regarding which he testified at the former
hearing had changed, answered that they were "substantially the same." He
also testified that the respondent 's operations remained unchanged.
The undersigned finds that the respondent is engaged in commerce, within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
Hudson Valley District, International Ladies' Garment Workers' Union, is a
labor organization affiliated with the American Federation of Labor. It admits
employees of the respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; the events preceding the strike
The respondent began operations in August 1", 1. General Manager George
Ohley, a native of Saugerties with 35 years' experience in the canvas field, assisted
President Verne P. Rathburn, who was without such experience, in setting up
the plant's operations. Ohley was in charge of hiring employees. Local resi-
dents were employed who, except for a few operators, were inexperienced per-
sons, recruited , as Rathburn testified, "from farms and drug stores, . . . schools
, people who had been discharged from other plants . . . derelicts floating
around the town . . ." According to the respondent's management, they demon-
strated unwillingness to learn or accept suggestions, were stubborn, wilfully
slow, generally unadaptable, and prone to damage machinery by their improper
operation thereof.
On or about August 26, 1942, the respondent instituted a piece work system
in one or more departments of the plant. In connection therewith it posted a
notice to its employees informing them that the plant pay-day had been changed.
Some employees interpreted the notice to mean that they would lose their over-
time pay earned on the previous Saturday On the afternoon of August 26, a
number of employees under the leadership of Warren Hauck, brother of Donald
Hauck, one of those alleged to have been discriminatorily discharged, demanded
that Ohley explain the matter. Ohley informed them that they would not lose
their overtime pay and discharged Hauck for his part in the incident, calling him,
according to Hauck, an agitator and saboteur. Ohley denied speaking to Hauck
in this way and stated that he discharged Hauck because he shook his fist at
him and threatened to "smash [his] nose." From the entire record, and because
of Ohley's dubious credibility, hereinafter detailed, the undersigned finds that
while Hauck was insubordinate, Ohley spoke to him as he testified'
2 Matter of Kellburn Manufacturing Company, Inc, et al ., 45 N. L. R. B 322.
The respondent maintained throughout the hearing that It was prohibited, by written
and oral instructions from the War and Navy Departments, and the Federal Bureau of
Investigation , from divulging this information . Its position in this respect did not differ
materially from that adopted at the hearing on the petition for certification.
' Warren Hauck's discharge is not alleged by the complaint to have constituted an unfair
labor practice by the respondent.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the evening of August 26, 1942,5 employees Lester Gardiner, Al Whitaker,
and Walter P. Freligh met at the latter's home with Union Organizer Jacob
Schneider Those present joined the Union, and received from Schneider blank
membership applications to be distributed among their fellow employees
On August 27, Frebgh distributed a 'number of applications at the plant dur-
ing the noon hour At about 1 p in. of that day, according to Freligh, Ohley
called him to his office, told him he was surprised at Freligh's action in distribut-
ing applications, that he deemed it "sabotage'. and that he "was going to call
up Washington" regarding it Freligh further testified that Ohleyy told him that
he had always considered Freligh "a nice fellow", that lie had been in line for
a good job, and thpt he should cease his activities in behalf of the Union When
Freligh informed him lie could not, because other employees were also distribut-
ing applications, Ohley told him, "I guess you better go home", but changed his
mind and sent him back to work when Freligh informed him that if Freligh was
discharged, "the rest would follow" him out of the plant. Ohley also took occa-
sion to inform Freligh that he considered his conduct a "sneaky thing" in the
absence of Rathburn who was in New York City.' Freligh protested that there
was nothing sneaky about it and that if the employees desired to join a union,
he saw no reason for their not doing so. He further testified that on Rathburn's
return to the plant the following day, Ohley asked him if he knew, "who the big
shot of the union was" and that Freligh replied that lie did not.
Ohley denied neither conversation, his testimony being confined to answering
in the negative when asked by counsel for the respondent, "Did yop ever at any
time admonish {Frelighl about handing out union application cards"" He also
denied knowledge of Fieligh's membership in the Union "on or about August 28th,
1942." The undersigned found Freligh a self-possessed and convincing witness
whose testimony was entirely credible. Ohley, on the other hand, was a far less
impressive witness whose obvious desire to assist the respondent in any way open
to him i endei ed his testimony of dubious worth in the resolution of controverted
issues . The undersigned, from all the ev idence, finds that Ohley spoke to Freligh
substantially as testified by the latter
On August 28, the day of Ratliburn's return to the plant,' at 4: 30 p. in., the
respondent discharged employees Freligh, Smith (Benson), Mazdin, Bulick, Hill,
Dore, and Lewis, and on August 29, at 8: 15 a. in, employee Donald Hauck s All
were members of the Union.
On the morning of August 29, Organizer Schneider telephoned Rathburn, in-
formed him that the Union represented the majority of the iespondent's employees
and requested that the dischaigees be reinstated. Rathburn declined to discuss
the matter and an appointment for a meeting between them was made for August
31.
On the afternoon of August 29, Kathryn V'ozchk, Rathbprn's secretary, on in-
structions from Rathburn, went through the plant during working hours and
caused each employee to indicate, by signing one of three sheets of paper carried
by her, whether he was in favor of the American Federation of Labor, the Con-
gress of Industrial Organizations, or a "company union*': desired no union; or
was undecided. Rathburn explained that he took the poll in order to determine
The respondent eniploied about 120 persons at this time
Riithbuin had left Saugerties a day or two before . He returned on August 28
7Upon Rathbuiu ' s return from New York, lie posted a notice to the employees to the
effect that it they had grievances to discuss with him , they should appoint a committee of
three to represent therm They did not do so The undersigned interprets the complaint
and record to indicate that the Board does not Inge that the respondent by so doing has
contiavened the provisions of the Act
s Their discharges are discussed , infra.
KELLBURN MANUFACTURING COMPANY, INC. 549
"where I stood" with reference to the sentiment of the employees in preparation
for his August 31 conference with Schneider.
About August 30 or 31, according to employees Judy Robinson and Emma Mc-
Carthy, I+orelady Marion Uhilet told a group of women employees in the rest loom
that "He ought to get rid of all the agitators " Ehrler testified that she told the
employees present that there was "too much agitation through the shop" and that
those who did not care to work or slowed up production should be discharged.
As found above, Ohley characterized employees who indulged in concerted activ-
ities as agitators and saboteurs The undersigned, upon the basis of- all the
pertinent evidence, concludes and finds that Ehrler spoke to Robinson and Mc-
Carthy as they testified and that, like Ohley, her notion of an agitator was one
who engaged in concerted activities with other employees of the respondent It
seems clear, and the undersigned finds, that she referred to Rathbnrn «lien voicing
her opinion that "He" ought to get rid of all such employees.
About August 31, Rathbuia discharged employee Lester Ga rdiner° allegedly
for wasting mates i al and peunitting usable scrap material to be taken from
the plant premises. When Gardiner piotested that he was in necessitous cir-
cumstances, Rathburn asked, "Do you want to go back to work and keep your
nose clean , or do you want a week's notice and leave now?" 1" Gardiner chose
the first alternative and returned to work In view of the fact that Gardiner
originally interested Schneider in oiganizing the plant and was thereafter active
in soliciting union applications, the Board apparently contends that Rat) burn's
statement constitutdtl an expression of anti-union sentiment by the respondent
The testimony of both Gardiner and Rathburn respecting the incident and its
background , is so inconsistent as to be impossible of reconciliation with facts
otherwise established. The undersigned, although not free of doubt respecting
Rathbuin's bona fides in the incident, makes no finding of unfair labor practices
based thereon
On August 31, Schneider met with Rathburn and Ohley, in the presence of
Chenault Marksbury, government inspector assigned to the respondent's plant.
Schneider unsuccessfully sought the reinstatement of the discharged employees.
Rathburn questioned the Union's majority and Schneider declined to produce
proof thereof, stating that unless the discharges were reinstated, the Union
would file charges with the Board.
Later the same afternoon, Ohley addressed the employees in the plant during
working hours. According to witnesses for the Board," he told those present
that a representative of the Union had called at the plant, clainied majority
representation of the employees by the Union, but had been unable to prove
his contention. Ohley added that if the Union carne into the plant, "lie" knowing
nothing of the manufacture of ladies' garnients, would be forced to go out of
business.l" Ohley denied mentioning the Union and testified that he told the
employees that "they could join a union or not to [sic] join a union If they
did not join the union, they would not be discharged" The undersigned finds
that Ohley made the statements attributed to him by the Board witnesses.
9 Gardiner , who was the plant's cutter, caused $ 30 to $00 per week, and so far as is
revealed by the record, was the highest paid employee in the plant.
11 Rathburn denied telling Gaidiner to keep his "nose clean " Fioni his observation of
Rathbnrn during his lengthy appearances on the witness stand and from his entire testi-
mony, the undersigned , particulaily because he belieses it to have been a location typically
within his usual mode of expression , finds that Rathbuin made the statement attributed
to inn,.
11 Gardiner , O'Bryon , E vgenis, and McCarthy.
u The undersigned , from all of the surrounding ciicumstances , is convinced and finds that,
by the pionoun "he", Wiley referred to Rathbnrn.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the evening of August 31,13 the Union held a meeting at a Saugerties hall
During the course thereof, Schneider asked all those present who had not signed
applications for union membership to stand. Among those who did so were
employees Oscar Ehrler, husband of Foi elady Ehrler, and Al Smith. The
Board contends that these employees represented the management and that
their presence at the meeting constituted surveillance thereof by the respondent.
The evidence reveals, however, that neither was a supervisory employee. The
undersigned does not consider Ehrler's relationship to the plant's forelady to
have, ipso facto, rendered his activities attributable to the respondent, and finds
that it did not. He will, therefore, recommend that the complaint, insofar as
it alleges that the respondent contravened the provisions of the Act by sur-
veillance of union meetings, be dismissed.
On September 2, the Union filed charges with the Board alleging that the
respondent 's activities consituted violations of Section S ( 1), (3) and (5) of
the Act
On September 4, the respondent discharged union members Elizabeth Shackett
and Clara O'Bryon.
On September 7, the Regional Office of the Board. notified the respondent
that the Union had filed charges and requested that it send a representative to
a conference regarding the matter to be held at the Regional Office on September
10.
On September 7, Ohley again addressed the employees in the plant during
working hours. He stated that a cash bonus payable to all employees and
announced by bulletin posted in the plant about August 1,1' "had come through."
After a recess, during which the bonus was distributed, Obley informed them
that Rathburn was to attend the Board conference scheduled for September 10
and so that he might know their feelings with respect to the Union, all em-
ployees were to indicate on the reverse of their daily production sheets whether
they were in favor of or opposed to it. At quitting time that day, a member
of the respondent's office force collected their production sheets and each
employee, as directed by Ohley, was caused to record thereon his position
regarding the Union.15
The September 10 Board conference was unproductive" and on the same day,
the Union telegraphed the National War Labor Board, requesting its inter-
vention "in threatened strike of [the respondent's] employees." On September
11, that board informed the Union that the matter had been by it referred to the
United States Conciliation Service "who will be in touch with you."
On September 14, Schneider, Conciliator R. B Somerville, and Michael Finn,
of the labor relations division of the War Production Board, met with Ratliburn
at the plant. Rathburn refused Schneider's request that the respondent recog-
nize the Union as the exclusive representative of the employees and as to the
discharges, stated that if "he thought it necessary," he would discharge 50
more.1T
13 The record is not completely clear as to the date of this meeting , there being some evi-
dence that it occuried on September 3 The undersigned, upon the entire record, concludes
and finds that it took place on August 31.
11 The time of disci ibution of the bonus had not been announced at that time, however.
15 The only exception, so far as is revealed by the record, aas George I White, whose ills-
charge is hereinafter discussed. Ile testified, and the undersigned finds, that he refused
to sign both the sheets circulated by Rathburn's secretary on August 31 and his September
7 production sheet
16 Contiary to the respondent's September 7 announcement, Rathburn did not attend the
conference The respondent was represented by its fouuer counsel who stated that he
knew nothing of the controversy and attended merely as an observer
11 Schneider's uniefuted testimony.
KELLBURN MANUFACTURING COMPANY, INC. 551
On September 18, the respondent discharged union member George I. White
and at 2 p m that afternoon a number of the union employees walked out.
They were joined by others during the succeeding 3 clays and by September 21,
1942, all those listed in Appendix B of the complaint were on strike against
the respondent.
The undersigned finds that by warning and discouinging its employees against
activity on behalf of and membership in the Union, and by interrogating them
with respect to their union sympathies or affiliation, the respondent has inter-
fered with, restrained, and coerced its employees in the exei disc of the rights
guaranteed in Section 7 of the Act.
B The stitike and the causes thereat
Witnesses for the Board testified that the striking employees ceased work on
account of the respondent's inquiries into their union sympathies, the discharges
of union members together with the respondent's repeated refusals to rehire them
and their consequent fear of loss of their own employment, and finally the re-
spondent's discharge of White on the morning of the strike The respondent
sought to show that the employees went on strike in order to force the respondent
to recognize the Union 18 and in order to obtain a wage increase.'0 The chronology
of events and all of the circumstances revealed by the record, particularly the
fact that the strike, against which the Union' s officials had counselled the em-
ployees 20 and on the day of which they urged the strikers to immediately return
to work, was demonstrated to have been spontaneous, combine to convince the
undersigned that the strike was caused by the respondent's unfair labor practices
above and hereinafter found to have been committed during the period from
August 26 to September IS, 1942, and prolonged by their continuing thereafter
The undersigned finds that the strike which occurred on September 18, 1942,
was a labor dispute caused and prolonged by the unfair labor practices of the
respondent.
C. The refusal to reinstate
On September 26, 1942, the striking employees unanimously voted to uncon-
ditionally return to work. Thereafter, on the same day, the Union through a
committee consisting of Goodman, Sol D. Kapelsohn, its counsel, and Commis-
sioner Somerville, met with Rathburn 21 and conveyed to him the unconditional
offer of the employees to return to work. Rathburn stated that he had nothing
to say and, in response to questions by Kapelsohn, stated that he did not know
when he would reach a decision respecting the offer, if ever. He never thereafter
took action respecting the Union's offer.
The respondent contends that because the strikers received their pay in full
immediately after the strike began, they resigned and ceased to be employees of
the respondent This contention is without merit. Since the strike was caused
and prolonged by the respondent's unfair labor practices, the strikers continued
18 Patrick Moylan, who so testified, did not name the source of his information to that
effect. Moylan became a foreman during January 1943.
"Employee Albeit Haines testified that the "ring-leader" of the striking employees so
stated Ile could not identify his informant
2i The record reveals that both Organizer Schneider and Morton Goodman, district man-
ager of the Union sought the aid of the National War Labor Board, the United States Con-
ciliation Service, and the War Production Board, as well as that of the Board, in their
efforts to pi event a work stoppage at the respondent's plant.
21Also present were Finn, of the War I'ioduction Board, and Lt J A. Myer of the
Jeffersonville, Indiana, Quaitermaster Depot
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be employees of the respondent, within the meaning of the Act, and were en-
titled to reinstatement to their former positions upon request.
The undersigned finds that, by refusing reinstatement to the striking em-
ployees listed in Appendix B hereof, at the time the Union unconditionally
offered their return to work, the respondent, on September 28, 1942, and there-
after, discriminated in regard to their hire and tenure of employment, thereby
discouraging membership in the Union and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7
of the Act.
D The refusal to bargain
1. The appropriate unit
On November 2, 1942, the Board found 22 a unit composed of all employees of
the respondent, excluding non-working supervisors and office and management
employees, to be appropriate. Although the respondent in its answer filed in
the instant proceeding denied the unit found to be appropriate, no evidence in
support of this position was adduced by it.
The undersigned finds that all employees of the respondent, excluding non-
working supervisors and office and management employees, at all tines material
herein constituted and now constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the Act.
2. Representation by the Union of the majority of the respondent's employees
within the appropriate unit.
Pursuant to the Board's Decision and Direction of Election,23 an election by
secret ballot was conducted among the respondent's employees on November 19,
under the direction and supervision of the Regional Director for the Second
Region, who on December 3, issued his Election Report and on December 8, an
amendment thereto. On February 1, 1943, the Board issued a Supplemental
Decision and Direction" in which it ruled upon Objections to Conduct of Ballot
and Election Report filed by the respondent and the Union, and directed that 20
of the ballots which were challenged should be opened and counted. After
complying with the Direction, the Regional Director on February 16, issued his
Supplemental Election Report showing that the Union received the majority of
the largest possible number of valid votes cast in the election. On February 19,
the respondent filed Objections to the Supplemental Election Report and on
February 22, the Regional Director filed his answer thereto, finding the objections
to be without merit. On March 4, 1943, the Board issued its Second Supplemental
Decision and Certification of Representatives overruling the respondent's objec-
tions and certifying the Union as the exclusive representative of the respondent's
employees in the appropriate unit for the purposes of collective bargaining with
respect to rates of pay, hours of employment, and other conditions of employment.'
The undersigned finds, as did the Board, that the Union was on November 19,
1942, and at all times thereafter has been, the exclusive representative of all the
respondent's employees in the appropriate unit for the purposes of collective
22 Sec footnote 2, supra
23 On November 7, 1942 the employer moved that the Board ieconsider its Decision and
Direction of Election and on November 13, 1042, the Board issued an order denying said
motion
24 47 N. L R B 217
25 No new matter bearing on the propriety of the election or the representation proceeding
was introduced at the instant hearing
KELLBURN MANUFACTURING COMPANY, INC. 553
bargaining with i expect to Cates of pay, hours of employment, and other conditions
of employment.
3. The refusal to bargain
On March 24. 1943, counsel for the Union wrote the respondent asking that it
bargain collectively with the Union. The respondent did not reply. Asked at
the hear ing by counsel for the Board whether the respondent refused to recognize
the Union and bargain collectively with it, counsel for the respondent answered,
. . the record speaks for itself"
The undersigned finds that the respondent, on March 24, 1943,2' and at all
times thereafter, has refused to bargain collectively with the Union as the ex-
clusive representative of its employees in an appropriate unit, and has thereby
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
E The discharges
1. The background
Rathburn testified that production in the plant was deficient during much
of early 1942 and that in August, when the employees first became aware of,
and objected to, the proposed piece woik rates that thereafter went into effect
on August 29, it worsened He also testified that he consulted with Ohley
respecting this condition, that about the middle of August, he and Ohley
determined that the 11 employees who were thereafter discharged on August 28,
29, September 4, and IS, 1942, were those mainly responsible therefor, and
that when he left for New York on August 24 or 25, he instructed Ohley, that
if their work did not improve, they were to be discharged upon his return.
On August 26, the Union had its genesis at employee l+rehgh's home. On
August 27 and 28, he and the six other union members discharged on August 28,
distributed membership applications and otherwise indulged in union activity
in the plant.
Both Rathburn and Ohley testified that they were unaware of the Union's
drive in the plant on August 28, Rathburn stating that lie was first apprised
thereof by Organizer Schneider on August 29, and Ohley, although he first
insisted that he only became aware of the Union on September 18, the day of
the strike, at length admitted to counsel for the Board that he had attended
the above described Schneider-Rathburn conference on August 31
As hereinbefore found, Ohley was actually well aware of the Union's activities
on August 27 and on that day threatened to discharge Freligh for his participa-
tion therein. As to the remaining six employees discharged on August 28, the
undersigned, upon the basis of their activities detailed mfia, and all of the
circumstances revealed by the record, concludes and finds that when Rathburn
returned to the plant at about noon of that clay, Oliley knew of their union
activities as well. The denials of Rathburn and Ohley that the Union was
mentioned in their conversation at that time are utterly unworthy of belief
and are rejected by the undersigned who finds, from the entire record in the
case, that Ohley thereat acquainted Rathburn with the facts respecting the
Union activities of the employees involved.21
"The documentary evidence discloses that the respondent ieceived the Union's letter on
the day it was dated
"As related above, Ohley thereafter, on August 28, asked Frehgh Hlio the leader of the
Union was, stating that Rathburn desired to l.novv.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence reveals that the respondent did not require a high standard of
production quality by its employees It was at all tunes in "desperate need of
help" and hired and retained unexperienced and handicapped persons who
resisted training and damaged its machinery through their inexperience.
Inspector Chenault Marksbury.e complained of "everybody in the place . . .
at one time or another" and until about March 1943, when he was ordered
to approve only "grade A" products, anything that was "serviceable" was
accepted by the Army.t9
The respondent produced some isolated production iecords, but declined to
prpduce such records for the plant as a whole, claiming that it was prevented
from doing so by directives of the Army and the Federal Bureau of Investiga-
tion. Furthermore, such employee production records as were produced for
purposes of comparison between those employees alleged to have done unsatis-
factory work and those doing compainble work during like periods, were wholly
inadequate therefor. In these circumnstaices, the records in evidence, although
of some physical bulk, are of little or no value as criteria in determining
whether the respondent in discharging the employees in question, was in fact
motivated solely by their production performances.
2. The discharges of August 28, 1942.
Walter P. F+religh was hired by Obley for whom he had previously worked
in a canvas plant, and began woik for the respondent in June 1942 He was
one of the few experienced operators obtained by the respondent. On August 20
lie received an increase in pay from 40 to 45 cents per hourSO He joined the
Union on August 26. and on August 27, distributed about 40 union membership
cards in the plant, obtaining 18 or 20 signed applications. Ohley's prompt
and adverse reaction has been related above. On August 28, Ohley discharged
Freligh on Rathburn's order, allegedly for unsatisfactory work.
Freligh testified that prior to this occasion his work had never been criticized
by the respondent. Ohley, Forelady Ehrler, and Inspector Marksbury testified
that Freligh's work was poor in quality and qauntity, Oliley stating that he had
warned Freligh on several occasions that he would have to improve his work.
The undersigned, having found Ohley a wholly unreliable witness, credits Fre-
ligh's testimony that his work had not been criticized and finds that Obley did
not speak to him in regard to it
The respondent also sought to show that Freligh participated in an alleged
slow down of work during August 1942. Employee Sadie Loerzel, called as wit-
ness by the respondent, testified that Freligh and employee George Tyme4on
"thought if we only done so much, when we would get on piece work, we would
get a big price"" Loerzel, who did not join the strike and was still employed by
the respondent at the time of the hearing, also testified that during August, by
prearrangement or a tacit agreement to which she was a party, none of the em-
ployees exerted themselves and that she performed less work than that of which
21 Dlarksbury acted as inspector for the Army at the plant from the time it opened until
June 1943
29 Despite these conditions, the respondent in its memorandum submitted to the National
War Laboi Boaid after the stiike, stated that the iespondent has maintained friendly
labor relations, has been able to pioduce as iequired under its contiacts, and has had no
difficulties whatsoever "
ao
This was after Rathburn and Ohley, according to the testimony of the former, had
concluded that Freli:;h was an unsatisfactory employee
Oi
Tymeson, i ecalled in rebuttal by counsel for the Board, denied speaking- to Loci zel in
this fashion Freligh, who no longer resided in Saugerties, at the time of the heating, was
not recalled.
KELLBURN 1IANUFACTUIiINC COMPANY, INC. 555
she was capable. The undersigned concludes and finds that the opposition of the
employees to the proposed piece work rates resulted in a general falling off of
production and that while Freligh, in common with the other employees, doubt-
less did not exert himself to the utmost, his conduct in this regard was not ex-
ceptional nor different from that of his fellow employees.
In view of the circumstances in which the respondent found itself, the under-
signed, although the evidence indicates that Freligh was not one of the top pro-
ducers in the plant, does not believe that the respondent dispensed with his
services for the season it advanced. The chronology of events, the respondent's
demonstrated hostility to the Union, and its failure to substantiate Freligh's al-
legedly unsatisfactory workmanship, combine to lead the undersigned to the con-
clusion that its real motive in dismissing him was its desire to rid itself of him
because of his leading role in establishing the Union and obtaining members for
it from among the employees Upon the entire record, he so finds.
Ida Smith (Bonson) began work for the respondent in November 1941. About
March 1942, there was a "slack period" in the plant. At that time Ehrler told
Smith to "just hang around" and that Rathburn had told her that "they were all
good operators and he didn't want to let them go." On August 20, 1942, Smith
received an increase in pay from 40 to 45 cents per hour. She joined the Union
about August 27 and thereafter spoke to her fellow workers concerning it. On
August 28 she was discharged, allegedly for unsatisfactory work. Employee
Emma McCarthy testified without denial, and the undersigned finds, that about
the following day, August 29, Ehrler told her that she could not understand why
the respondent had discharged Smith. Smith had had 8 years' experience in
operating sewing machines and testified, and the undersigned finds, that the
respondent's management did not complain of her work to her .`2
Supervisors of the respondent and Inspector Marksbury testified that Smith
was fast but careless, many repairs to her work being necessary. Her experience,
the plant's difficulty in securing competent workers, her pay increase within 8
days of her discharge, and the chronology of events combine to persuade the
undersigned that the respondent ousted Smith not because of her carelessness, but
because of her union membership and activity. He so finds.
Hazel Mazdin was hired by Ohley and began work for the respondent about
mid-July 1942. She began on a single-needle machine, but was soon transferred
to a two-needle machine, a more difficult operation and one in which she had had
previous experience. She testified, without denial, and the undersigned finds,
that both Rathburn and Ohley praised her work, that she received no criticism
respecting it from the respondent's management, and that she instructed other
employees in the operation performed by her. About August 21, she protested
the proposed piece-work rates to Ohley in the presence of two other employees.
He told her to get her mind on her work. Mazdin joined the Union about August
27 and thereafter passed out applications in the plant but secured no signatures
thereto. She testified, without contradiction, and the undersigned finds, that
about 4 p. in. on August 28, Ohley reminded her, "Don't forget you work tomor-
row." At 4: 30 on that day she was discharged, allegedly for unsatisfactory
work.
Rathburn, Ohley, Ehrler, and Marksbury testified that Mazdin was slow, care-
less, yelled at other employees in the plant, and engaged in a slow-down 33 The
33 Ehrler testified, and the undersigned finds, that she asked Sniith to "be more careful."
He does not consider the Ehrler request inconsistent with the above finding.
33 Employee Harriet Quick testified, and Mazdin denied, that Mazdin spoke to her and
asked her to slow her production The undersigned found Quick an unimpressive witness. In
all of the circumstances revealed by the record and because he found 11lazdin a witness
worthy of belief, he credits her denial.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undersigned, because of the absence in the evidence of adequate documentary
proof under the control of the respondent tending to substantiate such strictures
on her workmanship, and because they are completely inconsistent with the com-
mendation which she received from Rathburn and Ohley, gives little weight to
their testimony. Under all of the circumstances related in the record, the under-
signed concludes and finds that the iespondent discharged Dlazdin not on account
of her unsatisfactory workmanship but because it resented her union membership
and activity and sought to punish her therefor 3i
Katherine Bulick was hired by Ohley and began work for the respondent in
June 1942. She joined the Union at Fre]igh's solicitation on August 27, 1942, and
thereafter obtained three or four membership applications from among the em-
ployees At 4 p in. the following day, August 28, Forelady Ehrler told Bulick
and the other employees in her vicinity to come in for work the following day,
Saturday. At 4. 30 the same day, Bulick was discharged
Witnesses for the respondent testified that Bulick was an unsatisfactory em-
ployee who held up production by her inefficiency. Again, adequate records in
substantiation of their testimony are absent. The undersigned is convinced, and
finds, from all of the circumstances revealed by the record, that Bulick's dis-
charge was motivated, not by her poor work, but by the respondent's desire to rid
itself of her because of her union menibcrship and activities.
- Fiank Hill worked for the respondent about a month before-he was discharged
on August 28, 1942. He supplied canvas to operators and was a general handy
man about the plant He joined the Union about August 27 and thereafter
solicited the membership of one employee in the plant.
Ohley testified that Hill's work was unsatisfactory and that lie called the em-
ployees "vile names." The evidence discloses that about a. week before his dis-
charge he called employee Quick "an old bat" because she threw a glass of water
on him as he was descending in the plant elevator. The undersigned found Hill
an intelligent youth's who appeared to be entirely adequate for his $16 per week
job. He testified, and the undersigned finds, that the respondent did not criticize
his work The undersigned is convinced and finds that the respondent, in view
of its difficulty in securing employees, would not have discharged Hill but for his
union membership and activity and that its motive in dismissing him was its
anxiety to stamp out the Union in the plant
Marie Dore, a cousin of Frehgh, was hired by Ohley and began work late in
July 1942. On August 27 she received about 10 blank union applications from
Freligh. She executed one, distributed 6 or 8 to other employees and obtained
seveial signatures thereto On August 28, in the early afternoon, Ohley appeared
where she was working and told her, and the other employees in the vicinity,
"Everyone working Saturday, girls " Dore asked him if they would receive
overtime for their Saturday work. Ohley heatedly inquired whether she was
trying to "start another riot here" and demanded to know "who is telling you all
this stuff." At 4:30 that afternoon she was discharged.
Witnesses for the respondent testified that Dore was slow and that the
quality of her work was poor. Dore, on the other hand, testified that she "was
ahead [of her work] most of the time" and that she received extra work from
Ehrler on such occasions Incomplete and random records in evidence, difficult
of analysis," indicate that Dore's production was approximately equal to that
31 In a small plant, such as the respondent's, it is a ieasonable inference that Mazdin's
union membership and activity came to the notice of the respondent' s nianagenient. See
N. L B. B v. Abbott Worsted Hills, Tirc, 127 F (2d) 438 (C C. A 1).
He was 16 years of age w hen lured by the respondent.
90 Respondent's counsel had offered, during the course of the hearing, to produce a pro-
KELLBURN MANUFACTURING COMPANY, INC. 557
of two employees doing smiler work during substantially comparable periods.
The undersigned, from the chronology of events, and the entire record in
the case, is convinced and finds that Doi e's relationship to Freligh and her own
union membership and activity, and not her allegedly poor Workmanship, moti-
vated the respondent in ridding itself of her.
Robert Lewis worked for the respondent for about 2 weeks before his dis-
charge on August 28, 1942 Ile assisted employee Townsend Ackerman, doing
heavy work such as diying tents and loading them for shipment He received no
complaints regarding his woik from the respondent's supervisory staff, joined
the Union about August 27, and thereafter solicited at least one membership
therein from among the employees.
Ohley and Rathburn testified that Leuu is' work was unsatisfactory, the former
stating that Lewis stayed in the wash room for excessive periods and the latter
that his work other than loading tents "was not satisfactory." 37 Ackerman
testified that Lewis' work was entirely satisfactory and that on August 29, Ohley
informed him that Lewis had been seen passing out union application cards
and that lie had been discharged for that reason 2' Ohley testified that Ackerman
told him that Lewis should not have been discharged because he "had nothing
to do with the union it all" and that Ohley thereupon told Ackerman, "I
want you to stop that. It has no hearing on the case whatsoever." The under-
signed has found 0h ley to be an almost completely unreliable witness Ackerman,
on the other hand, lie found to be a sincere and honest witness, worthy of belief.
13e, therefore, finds that the conversation occurred as testified by Ackerman.
Lewis testified, and the undersigned finds, that on the same day but before he
was notified of his discharge, Oiiley approved his application for supplemental
gasoline ration for presentation to the local rationing board of the Office of Price
Administration so as to enable him to continue to come to work at the respondent's
plant3°
The undersigned, upon all of the evidence in the case, concludes and finds that
the respondent discharged Lewis, not for his allegedly poor work, but because
the respondent was aware of his having distributed one or more union application
cards and rid itself of him for that reason.
3 Donald Hauck
Hauck 4° was hired by Ohley and began work for the respondent about August..
1, 1942. He was hired to operate an eyelet machine but on account of its being
out of service for repairs, Ilauck performed other tasks in the plant, including
putting buckles and buttons on, and stencilling belts, and packing He joined
the Union about August 27 or 28, and thereafter distributed 15 or 20 membership
application cards in the plant and elsewhere and secured a number of signatures
thereto.
duction chart or graph, which might afford some standard of comparison No such chart
was produced or offered in eiidence.
"The record fails to reveal what such other work was
r>a Ackerman, in an affidavit, executed September 3, 1942, attributed this statement to
Rathburn On the stand, he stated that he had been in error in so doing and that Ohley
had in fact made it.
i Ohley stated that he did so on the second clay of Lewis' employment and that he
remembered the incident because lie was surprised that Lewis should already have needed
extra gasoline to come to work, inasmuch its other employees for whom lie had done a like
service had "enough gas to keep them going a week or 10 days or 2 weeks, and some a
month." The undersigned disbelieves Ohley's version of the events and concludes that
Lewis requested Ohley' s assistance in procuring more gasoline at the conclusion of 2 weeks'
employment by the respondent, as lie testified.
4° The brother of warren Hauck, who as above related, was discharged on August 26, 1942.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 28, he worked from 6 a m to 2 p in rather than from 8 a. m to
4 p m as ordinarily, with the respondent's approval When he came to work
on August 29, his time card was not in the rack and about 8:15 a. in. Ohley,
according to Hauck's testimony, discharged him, allegedly for unsatisfactory
work He had received no previous complaints regarding his work.
Ohley testified that after his brother Warren was discharged on August 26,
Hauck told him he had "a good notion to quit," but apologized the following day,
or on August 28. He further testified that on August 29, Forelady Ehrler told
him Hauck was "not woi king today," and that when he spoke to Hauck regard-
ing her statement, the latter answered, "I don't know whether I am going to work
or not I have a better job," whereupon Ohley replied, "All right. Go to it. You
can have your money" and that Hauck thereupon received his pay in full and left
the plant. On cross-examination by counsel for the Board, Ohley stated that he
removed the time cards of those employees discharged on August 28 on that
afternoon, denied that he removed Hauck's card, until the morning of August 29,
and stated that he did so then because "I wanted to speak to my superior officer
about it."
Hauck explained that his mother was dependent on the earnings of his brother
and himself and that because of Warren's being out of work he, Donald, decided
to continue working for the respondent. He emphatically stated, and the under-
signed finds, that he did not resign his position The undersigned, because of
Ohley's unreliability as it witness and because he found Hauck a coryvincing
witness whose testimony was consistent with the course of events revealed by
the record, further finds that his discharge occum red as he testified He further
finds that Ohley removed. Hauck's time card fi om the rack on the afternoon of
August 28, and that, but for his being absent from the plant at quitting time on
that day, Hauck would then have been discharged by the respondent. When he
arrived at the plant on August 29, the respondent lost no time in dismissing him
It is plain, and the undersigned finds, that the respondent dismissed Hauck
because of his union membership and activity.
4 O'Bryon and Shackett
Clara O'Bryon" began work for the respondent in October 1941, and Elizabeth
Shackett, in June 1942 Both received two increases in pay, the last on August
20, to 45 cents per hour. They both joined the Union and were the only employees
in the plant who'signed the August 29 questionnaire circulated by the respondent
in the plant indicating that they were in favor of the Union.4" On September 4
they were 4 minutes late in returning from lunch. An hour later Ohley dis-
charged them."
Ohley gave them no reason for their discharge. They therefore. and because
they wished to inquire regarding- certain bonus and War Bond matters," "inter-
viewed Rathburn who, according to their testimony, told them that they had
been discharged for spending too much time in the rest room and on account of
their union activity, adding that the Union did not worry him, that he might
41 Described in the complaint as Claire O'Bryon
12 They first designated the C I 0 , but recalled Vozdick , Rathburn's secretary, and
changed their choice to the A F of L on the sheets she had circulated
43 Employees Mabel and Marie Engesser, both union members, were discharged at the
same time They were also late in returning from lunch The complaint does not allege
this action by the respondent to have constituted an unfair labor practice . Neither of the-
En essers was called as a witness
94 Both subsequently ieceived their bond and bonus money from the respondent.
KELLBURN MANUFACTURING COMPANY, INC. 559
move his plant "across the river," and that the respondent would discharge still
other employees.
Rathburn denied speaking to them regarding the Union or about moving his
plant and testified that lie did not know of their union membership. The evi-
dence indicates that O'Bryon and Shackett did spend long periods in the rest
room and they admitted they had been late in returning to the plant after the
lunch hour on this and other occasions. The evidence also indicates, however,
that numerous employees indulged in the same practices, did not report for work,
and otherwise violated the respondent's rules; that in the entire history of the
plant prior to August 28, only four or five employees had been discharged ; and so
far as is revealed by the record, that none but union members were thereafter
discharged. In view of the "desperate" employment condition obtaining at all
times in the plant and the apparently not unsatisfactory work records of O'Bryon
and Shackett, both of whom had received increases in pay about two weeks
before they were discharged, the undersigned believes that, although the re-
spondent may have had adequate reason for discharging them for infraction
of its rules, it would not have done so but for their union adherence openly
expressed by their written preference for it recorded on August 29. Rathburn's
reasons for dismissing them and the further defiant remarks attributed to him
by O'Bryon and Shackett, exemplify the respondent's attitude toward the Union
and its members demonstrated throughout the period involved in this proceeding.
The undersigned, upon the entire record, is persuaded and finds that he spoke
to O'Bryon and Shackett substantially as they testified, discredits his denial
of knowledge of their union membership, and finds that the respondent discharged
them on account thereof.
5. George I. White
White was hired by Ohley and began work for the respondent in June 1942.
He joined the Union on August 27, thereafter attended union meetings, and
unsuccessfully solicited the membership of employee Martha Loeser in the plant.
He refused to sign the questionnaire circulated by the respondent on August
29," and refused to indicate his position with respect to the Union on his
September 7 production sheet. On September 17 he was ill and did not report
for work When he did so on September 18, Ohley discharged him, allegedly
for unsatisfactory work as well as infraction of company rules relating to
reporting absences by employees.
Rathburn . Ohley , Ehrler, and Inspector Marksbury testified that White's work
was poor in both quality and quantity . The evidence reveals that Marksbury
twice spoke to him about his work and that after the piece work system was
installed on August 26, White, as he himself testified , could not keep up with
some other employees at his table because "They was rushing all the while."
He did not succeed in making his minimum under the system, but was not
unusual in that respect since most employees were likewise unable to do so and
during the system ' s first week of operation , none did. Although White was
selected for discharge on August 28, his services , according to Rathburn were not
then dispensed with because Ohley had no one with whom to replace him. White
was a man of advanced years who had spent some time in railroad work before
devoting 24 years to cab -driving in New York City and had no experience in
canvas work . It is the opinion of the undersigned that since he had mastered
his work well enough to be indispensable for even so short a period as that
"He testified without contradiction, and the undersigned finds, that he told Vozdick,
Rathburn 's secretary , that he would not do so because "it 'sas not right" that the re-
spondent should inquire into the union sympathies of its employees.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between August 28 and September 18, he proved himself a satisfactory worker
under the conditions then obtaining in the plant. He so finds The evidence
further reveals that White was absent from work on several occasions without
first notifying the respondent. He testified, and the undersigned finds, that he
was unaware of any rule of the respondent requiring him to do so 46 Rathburn
testified that early in the plant's history, in the summer or early fall of 1941,
in connection with "a very rush job" lie veibally explained to the employees
"that anybody who did not wish to work overtime, did not have to, but if they
were not going to work overtone they must tell as and make other arrange-
ments . . . If they neglected to tell us, if they went home for dinner and did
not come back to work, or stayed out without notifying us, they would be dis-
missed. They had the privilege of not working overtime, provided they so
instructed us." So far as the evidence discloses, this "rule" was never pub-
lished in written form. Since it was announced with respect to a particular
order or job, was mainly concerned with the employees' overtime work, and
its announcement antedated White's employment by 9 or 10 months, it appears
that White was not deielict in the performance of his duties because lie was
unaware of its existence. The undersigned so finds.
It seems plain that, under all of the circumstances revealed by the record,
White's involuntary absence from work on account of illness of September 17,
would not ordinarily have precipitated his dischaige but that it was seized upon
by the respondent merely as a pretext for ridding itself of him becau-e of his
known and intransigent union adherence. The undersigned so finds
The undersigned finds that the respondent has discriminated in regaid to the
hire and tenure of employment of Freligh, Smith, 1llazdni, Bulick, Hill, Dore,
Lewis, Hauck, O'Bryon, Shackett, and White, thereby discouraging membership
in the Union, and interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed them in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PP.ACTICES UPON COMMERCE
The activities of the respondent set forth in Section Ill above , occurring in
connection 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 and have led to labor disputes bur-
dening and obstructing commerce and the free flow of commerce
V. THE REMEDY
Having found that the respondent has engaged in and is engaging in certain
unfair labor practices, the undersigned 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 has refused to bargain collectively
with the Union. It will therefore be recommended that the respondent, upon
request, bargain collectively with the Union as the exclusive representative of
its employees within the appropriate unit.
It has been found that the respondent has discriminated in regard to the hire
and tenure of employment of the employees listed in Appendix A, thereby dis-
couraging membership in the Union. The undersigned will therefore recom-
mend that the respondent offer them immediate and full reinstatement to their
46 Ohley testified that he had warned White to do so The undersigned on account of
Ohley's often demonstrated unreliability, does not credit his testimony to that effect.
KELLBURN MANUFACTURING COMPANY, INC. 561
former or substantially equivalent positions , without prejudice to their seniority
and other lights and privileges He will farther recommend that the respondent
make them whole for any loss of pay they may have suffered by reason of the
lesporident's discrimination against them by the payment to each of them of
a sum of innoney equal to the amount lie would no1nially have earned as wages
from the date of such dt"cruunnition to the date of the otter of reinstatement,
less his net earnings'' duiin , said pct rod.
Donald Ilanck, listed in Appendix A. was serving in the United States Navy
at the lone of the hearing It will ho recommended that the respondent, upon
application by him within forty (4(1) days of his discharge from such seivice,
offer IIaucl: full renrshrteinenl to his termer or substantially equivalent posi-
tion. without prejudice to his serioi sly and other rights and privileges. It will
be tuitber iecomineuded that the respondent snake lout whole for any loss of
pay lie may have suffered by reason of its disci inimation against him by the
immediate payment to him of a sum of money equal to the amount lie would
normally have cat ned as wages from the date of the respondent's discrimination
against him to the date on which he heg:ni his sernce, and for any loss of pay
lie may iucnr front a date five (.i) days after his timely application for rein-
statement to the date of the respondent's oitei thereof, less his net earnings"
during each of seen pet cods
It has been found that the respondent has rli,u nnniated in regard to the
]tire and tenure of employment of the employees listed in Apl;endix 1:, thereby
disconiaging nicrirbership in (lie Union The nncletsigned will therefore recom-
mend that the respondent otter them numedmte and trill reinstatement to their
former or substantlally egniv:tlent positions, without pmejuchce to their seniority
and other lights and privileges All employees presently working for the ie-
spondenf who have been hired since Septeuthei 18, 1913, the date of the com-
mencement of the strike, shall if neiessau'y he dtsurissed by the respondent to
provide employment for those to be uttered and who shall accept reinstatement.
If thereupon. despite the disnussal of all such employees, there is not sufficient
euiploynient mailable for the employees presently woikiug tot, the iespoudent,
excluding those tiisnnssed, and lot the employees to be offered and who shall
accept reinstatement, then all positions of einplovinent shall be distributed
by the respondent aniong employees presently working. excluding, those dis-
nussed. and the employees to be offered and who sliall accept reinstatement, in
accuidance with the iespondent' s usual niethod of ieduciug its force, without
discrimination against any eiuployee because of his union affiliation and ac-
tivities. following such 51Steni of seniority or other nun-disciininatory procedure
as has been heretofore applied by the respondent in the conduct of its business
Those employees remaining after such distribution. for when no employment
is immediately available, sh:dl be placed on a preferential list with priority
determined :unoog them in accordance with such system of seunotity or other
non-disciuninatory procedure as has been heretofore applied by the respondent
in the conduct of its business , and thereafter, in accordance with such list, shall
41 By "net earnings " is meant earnings less expenses , such as for transportation, romp,
and board, nicuried by an employee in connection with obtaining work and working elsewhere
than for the respondent, which would not have been incurred but for his unlawful discharge
and the consequent necessity of his seeking employment elsewhere See Matter of Crossett
Lumber Company and United Brotherhood of Carpenters and Joiners of Ameiica. Lumber
Sawmill lVoikers Union. Local 2590 , 8 N L 11 B 440 Monies received for work performed
upon Federal , State, county, municipal, or other work-relief projects shall be considered as
earnings See Republic Steel Corpoi ation v N L R. B , 311 U. S. 7.
48 See footnote 47, supra.
5 78129-44-vol 55-37
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be offered reinstatement by the respondent to their former or substantially
equivalent positions as such employment becomes available and before other
persons are hired for such work.
The undersigned will further recommend that the respondent make whole
the employees whose names are listed in Appendix B for any loss of pay they
may have suffered by reason of the respondent's refusal on September 26. 1942,
to reinstate them upon application, by the payment to each of them of a sum of
money equal to the amount lie would normally have earned as wages from the
date of such discrimination to the date of the offer of reinstatement, less his
net earnings .9 during said period.
Lester Gardiner, listed in Appendix B. was serving with the Armed Forces
of the United States at the time of the herring It will be recommended that
the respondent, upon notification by him within forty (40) clays of his discharge
from such service of the fact of such discharge, offer Gardiner reinstatement
or place him upon the preferential list in accordance with the terms and condi-
tions set forth in the preceding paragraph with respect to the striking em-
ployees found to have been discriminated against. It will be further recom-
mended that the respondent make him whole for any loss he may have suffered
by reason of its discrimination against hinn by immediate payment to him of
a sum of money equal to the aniount he would normally have earned as wages
from the date of the respondent's discrimination against him, to the date on
which he began his service, and for any loss of pay he may incur from a date
five (5) clays after his timely notification of the respondent of the fact of his
discharge to the date of the respondent's offer of reinstatement or placement
upon the preferential list as provided in the preceding paragraph, less his net
earnings G0 during each of such periods.
Upon the foregoing findings of fact and upon the entire record in the case, the
undersigned snakes the following.
CONCLUSIONS OF LAW
1 Hudson Valley District, Intel national Lilies' Garment Workers' Union,
A. F. of L., is a labor organization, within the meaning of Section 2 (5) of the Act.
2. All employees of the respondent, excluding non-working supervisors and
oflice and management employees, at all times material herein constituted and
now constitute a unit appropiiate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
3. Hudson Valley District, International Ladies' Garment Workers' Union,
A. F. of L, was on November 19, 1942, and at all times thereafter has been, the
exclusive representative of all the employees in such unit for the purpose of
collective bargaining, within the meaning of Section 9 (a) of the Act.
4. By refusing on March 24, 1943, and it all times thereafter, to bargain col-
lectively with Hudson Valley District, International Ladies' Garment Woikers'
Union, A. F. of L, as the exclusive representative of the employees within the
appropriate unit, the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of the
employees whose names are listed in Appendices A and B, the respondent has
engaged in and is engaging in unfair labor practices, within the meaning of Sec-
tion 8 (3) of the Act.
6 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
90 See footnote 47, supra.
co See footnote 47, supra.
KELLBURN MANUFACTURING COMPANY, INC. 563
and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting coin-
merce, within the meaning of Section 2 (6) and (7) of the Act.
8. The respondent has not kept union meetings under surveillance in violation
of Section 8 (1) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Kellburn Manufacturing Company,
Inc., Saugerties, New York, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Hudson Valley District, International
Ladies' Garment Workers' Union, A F. of L., as the exclusive representative of
all employees of the respondent, exclusive of non-working supervisors and office
and management employees, with respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment ;
(b) Discriminating in regard to the hire and tenure of employment of any of
its employees because of their membership in or activity on behalf of Hudson
Valley District, International Ladies' Garment Workers' Union, A. F. of L.;
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will ef-
fectuate the purposes of the Act:
(a) Upon request, bargain collectively with Hudson Valley District, Inter-
national Ladies' Garment Workers' Union, A. F. of L, as the exclusive represen-
tative of all employees of the respondent, exclusive of non-working supervisors
and office and management employees, with respect to rates of pay, wages, hours
of employment, and other conditions of employment ;
(b) Offer to the employees listed in Appendices A and B immediate and full
reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges, in the manner set
forth in the Section entitled "The remedy" above, and place those whose names
are listed in Appendix B for whom employment is not immediately available upon
a preferential list and offer them employment as it becomes available, in the
manner set forth in said Section ;
(c) Make whole the employees listed in Appendices A and B for any loss of
pay they may have suffered by reason of the respondent's discrimination against
them, in the manner set forth in the Section entitled "The remedy" above;
(d) Post immediately in conspicuous places throughout its Saugerties, New
York, plant, and maintain for a period of at least sixty (60) consecutive days,
notices to its employees stating: (1) that the respondent will not engage in the
conduct from which it is recommended that it cease and desist in paragraphs 1
.(a), (b), and (c) hereof; (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a), (b), and (c) hereof; and (3) that the respondent's
employees are free to become and remain members of Hudson Valley District,
International Ladies' Garment Workers' Union, A. F. of L., and that the respond-
ent will not discriminate against any employee because of his membership in or
activity on behalf of that organization ;
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Duector for the Second Region in writing within ten
(10) clays fi rnn the (late of the receipt of this Intermediate Report what steps the
respondent has taken to comply therewith.
It is further recommended that the complaint be dismissed insofar as it alleges
that the respondent has kept union meetings under surveillance in violation of
Section S (1) of the Act.
It is further recommended that unless on or before ten (10) days from the date
of the receipt of this Intermediate Repot the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 19,
1943-any party or counsel for the Board may within fifteen (15) clays from the
date of the entry of the order transferring the case to the Board, pursuant, to
Section 32 of Article II of said Rules and Regulations, file with the Board, Ito-
chambeau Building, Washington, D C , an original and four copies of a statement
in writing setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding (including rulings upon all motions or
objections) as he relies upon, together with the original and four copies of a brief
in support thereof. Immediately upon the filing of such statement of exceptions
and,/or brief, the party or counsel for the Board filing the same shall serve a
copy thereof upon each of the other parties and shall file a copy with the Regional
Director. As further provided in said Section 33, should any party desire per-
mission to argue orally before the board, request therefor must be made in
writing within ten (10) days from the date of the order transferring the case to
the Board.
JOSN,F L HEKTOEN,
Trial Exantmer.
Dated November 27. 1943
APPENDIX A
Walter Perce Freligh
-Ida Smith (Benson)
Hazel Mazdin
Katherine Bulick
Frank Hill
Marie Dore
APPENDIX B
Grace Bennett
Frank Brandt
Augustus Brown
Donald J. Bowra
Robert Brown
Hazel Bruno
Paul Buntel
Herman Daley
Peter Daley
H. L. Daniels
Marge Davis
Mary De Cicco
Itobeit Lewis
Donald Hauck
Clara O'Bryon
Elizabeth Shackett
George S. White
Charles W. Diehl
Wright Ennis
Clara Erceg
Berit Evgenis
Wm. Farrell
Eileen Ferguson
Elizabeth Ferretti
Lester Gardiner
Katherine Garrison
Donald Guthed
Stella Haines
Robert Hallenbeck
KELLBURN 'MANUFACTURING COMPANY, INC.
Ralph Hendricks
Ethel M. Holcomb
Clarence Hommel
Victor I. Hommel
K. N Houghtaling
Charles Hudson
Joseph Hull
Martin Hull
Ethel Humphrey
Clinton Johnston
Rose Hubie
Tony Krenim
John Lavelle
Randolph Legg
Emma McCarthy
Luther Mickle
Rose Mickle
Anna Milder
Evelyn Murphy
Jeannette Murphy
Collins Myer
Clarence Myers
Robert Myer
James Myers
Milton O'Bryon
Thomas O'Connell
Virginia Ostyic
Dorothy Patterson
Bertram Quick
Edward Pickett
Agnes Robinson
Judy Robinson
Inez Reynolds
Julius R. Schmidt
Louise Schmid
Frida Short
Larry Spatz
John P. Staerker
Curtis Thies
Alice Tompkins
George Tymeson
Jennie Westergard
Robert Westergard
Alfred Whitaker
James Winters
Louis Trolsen
565