Kinner Motors, Inc.

National Labor Relations Board - Board Decisions

Dec 13, 1944

59 N.L.R.B. 905 (N.L.R.B. 1944)

In the Matter of KINNER MOTORS, INC. and INTERNATIONAL ASSO-
CIATION OF MACHINISTS , A. F. L.
Case No. 21-C-089.-Decided December 13 ; 1944
DECISION
AND
ORDER
On August 5, 1944, the Trial Examiner issued his Intermediate Re-
port in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and 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 and a brief to support the exceptions. The
Machinists has filed no exceptions or brief.
Pursuant to notice and at the request of the respondent, a hearing
for the purpose of oral argument was held before the Board on, No-
vember 30, 1944, at Washington, D. C. The respondent appeared by
counsel and participated in the argument. The Machinists did not
appear. The Board has considered the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the respondent's
exceptions and briefs, including a brief submitted to the Trial Exam-
iner, and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner with the
modifications noted hereinafter.
At the oral argument before the Board, the respondent argued,
among other things, that, even if the respondent discriminatorily dis-
charged Swope, Davis, and Gilpin, as the Trial Examiner found, the
respondent was justified in denying reinstatement to them upon learn-
ing, subsequent to their discharge, of the derogatory statements made
by them concerning the value of United States War Bonds, as more
fully set forth in the Intermediate Report,, and that the Board, as a
matter of policy, should withhold its normal remedy of reinstatement
here because reinstatement of such employees would adversely affect
morale among the-respondent's remaining employees. Like the Trial
59 N. L R. B., No. 175.
905
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner, we do not condone the making of statements such' as those
made by the three employees involved herein, particularly in view of
the fact, that war workers are being urged to exert their utmost to
speed production vital to the prosecution of the war. However, like
the Trial Examiner, and for the reasons set forth in the Intermediate
Report, we believe that, in failing or refusing to reinstate Swope,
Davis, and Gilpin, the respondent was motivated by their union activi-
ties rather than by the fact that they had made the derogatory state-
ments concerning war bonds. We are also of the opinion that under
the circumstances disclosed here, reinstatement of the three discrimina-
torily discharged employees, in itself, would not adversely affect plant
morale or production, and that effectuation of the purposes and policies
of the Act requires their reinstatement with back pay. Nonetheless,
nothing in our Decision and Order should be construed to preclude the
,respondent from resorting to nondiscriminatory disciplinary action '
appropriate to bar the resumption of such practice in the event that
the three employees, or any of them, make any such-derogatory state-
ment with respect to United States War Bonds in the future.
In the Intermediate Report the Trial Examiner rejected the re-
spondent's contention that the three employees should be denied re-
instatement because they did not exhaust their remedies under the
grievance procedure established pursuant to the respondent's contract
with the Association. We agree with the Trial" Examiner that such
contention is without merit in view of the Board's previous deter-
mination that the Association is a company-dominated organization
within the meaning of Section 8- (2) of the Act.' In addition, even
if the Association were free of such taint, the contention is without
merit in view of the express provisions contained in Section 10 (a}
of the Act.2
ORDER
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, Kinner Motors, Inc., Glen-
dale, California, its officers, agents, successors, and assigns shall :
1. Cease and desist from:
(a) Discouraging membership in International Association of
Machinists, affiliated with the American Federation of Labor, or in
1 Matter of Kinner Motors , Inc, 57 N L. R. B. 622
2 Sec 10 ( a) provides "The Board is empowered, as hereinafter provided, to prevent any
person from engaging in any unfair labor practice ( listed in section 8 ) affecting commerce
This power shall be exclusive , and shall not be affected by any other means of adjustment
or prevention that has been or may be established by agreement , code , law, or otherwise."
See, for example N. L. if. B v. Newark Morning Ledger Co., 120 F. (2d) 262, 267-26S
(C. C A 3).
KINNER MOTORS, INC. 907
any other labor organization of its employees , by discriminating in
regard to the hire or tenure of employment of any of its employees,
or any term or condition of employment;
(b) Discharging or otherwise discriminating against any em-
ployee because he has given testimony under the Act;
(c) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right to self-organization , to form
labor organizations , to join or assist International Association of Ma-
chifiists , affiliated with the American Federation of Labor, or any other
labor organization , to bargain collectively through representatives of
their own choosing, and to engage in concerted activities , 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 Richard Arthur Swope, Lewis Gilpin , and James Ma-
con Davis immediate and full reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority or
other rights and privileges ;
(b) Make whole Richard Arthur Swope, Lewis Gilpin , and James
Macon Davis for any loss of pay they may have suffered by reason
L; of the respondent 's discrimination against them , by payment to each
of them of a sum of money equal to the amount which he normally
would have earned as wages during the period from the date of his
discharge to the date of the respondent's offer of reinstatement, less
his net earnings during said period;
(c) Post immediately in cpnspicuous places in each of its Glen-
dale, California, plants, and maintain for a period of at least sixty
(60) consecutive days from the date of posting , notices to its employ-
ees stating : ( 1) that the respondent will not engage in the conduct
fron7 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 affirma-
tive 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 International Association of Machinists , affiliated with
the American Federation of Labor, and that the respondent will not
discriminate against any employee because of membership in or
activity on behalf of that organization;
(d) Notify the Regional Director for the Twenty-first Region, in
writing within ten ( 10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. William B. Esterman, for the Board.
Mr. Victor Ford Collins, and Mr. Arnold M. Cannan, of Los Angeles, Calif.. for
the respondent. -
Mr. A. C. McGraw, of Burbank, Calif., for the Machinists.
, STATEMENT OF THE CASE
Upon a charge duly filed on March 2, 1944 , by International Association of
Machinists , affiliated with the American Federation of Labor, herein called the
Machinists , the National Labor Relations Board, herein called the Board, by its
Regional Director for the Twenty -first Region ( Los Angeles , California), issued
its complaint dated May 11, 1944, against Kinner Motors , Inc., Glendale, Cali-
fornia, herein called the respondent , alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (1), (3) and ( 4) and Section 2 (6) and ( 7) of the National Labor
Relations Act, 49 Stat . 449, herein called the Act Copies of the complaint, with
notice of hearing thereon , were duly served upon the respondent and the
Machinists.
With respect to the-unfair labor practices , the complaint alleged in substance
that the respondent discharged ' Richard Arthur Swope, James Macon Davis, and
Lewis Gilpin , its employees , because of their affiliation with and activity on behalf
of the Machinists . The complaint further alleged that the respondent discharged
James M. Davis because he gave testimony for and on behalf of , the Machinists
in a prior Board proceeding in which the respondent was charged with unfair
labor practices' Because of the foregoing conduct, the complaint alleged that
the respondent interfered with , restrained , and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
In its duly'filed answer to the Board 's complaint , the respondent denied that
it had engaged in any of the alleged unfair labor practices
Pursuant to notice , a hearing was held on June 6, 7 , 8, 9, and 12, 1944, at Los
Angeles, California , before the undersigned , the Trial Examiner duly designated
by the Chief Trial Examiner . The Board and the respondent were represented
by counsel and the Machinists by a lay representative . All parties participated
in the hearing . Full opportunity to be heard , to examine and cross -examine wit-
nesses, and to introduce evidence bearing on the issues was afforded all parties.
At the close of the Board ' s case the respondent moved to dismiss the complaint
insofar as it alleged the discriminatory discharge of the three named employees.
The undersigned denied thi3 motion : Near the close of the hearing , counsel for
the Board moved to conform the pleadings to the proof as to minor particulars
such as the spelling of names. The undersigned granted this motion. Oral argu-
ment, in which counsel for the Board and for the respondent participated, was
heard at the conclusion of the taking of evidence. The parties were advised that
they might file briefs with the undersigned . Pursuant thereto the respondent
filed a brief.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes, in addition to the above , the following : _
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT $
Kinner Motors, Inc., a California corporation, owns and operates two plants
at Glendale, California, herein called Plant 1 and Plant 2, respectively, where
Matter of Kinner Motors, Inc. and International Association of Machinists , Case No.
21-C-2307, 57 N. L. R. B. 622. 1
KINNER MOTORS, INC. 909
it is engaged in the manufacture of aircraft engine parts and the assembly of
aircraft engines. During the calendar year 1943, the respondent in the course
and conduct of its business, purchased raw materials valued at more than
$7,000,000, of which materials valued at more than $3,000,000 were transported
to the respondent's plants from points outside California During the same pe-
riod respondent sold and distributed finished products valued at more than
$$,000,000, of which amount ,fiiiished products valued at more than $500,000 were
made for delivery, and were delivered, by the respondent to points and persons
outside the State of California.
The respondent concedes that it is engaged in commerce within the meaning
of the Act.
II. THE ORGANIZATION INVOLVED
International Association of Machinists, affiliated with the American Feder-
ation of Labor, is a labor organization admitting to membership employees of
the respondent.
III. THE UNFAIR LABOR PRACTICER
A Disci intinateon; inter ter ence, rests aint and coercion
,It is alleged that the respondent discriminatorily discharged Richard Arthur
Swope, Lewis Gilpin, and James Macon Davis. The named employees were, at
the time of their respective alleged discharges, employed by the respondent in
its tool room at Plant 1, on the night or "swing" shift, and during the period in-
volved were the sole employees in this department on the night shift of Plant 1.
The tool room is on the same floor as, and adjacent to, respondent' s machine shop.
The function of the tool room is to make, repair and maintain tools of various
kinds that are required for the operation of machines in the production or manu-
facture of parts for the finished product. It is seen therefore that the work of
the tool room and the machine shop is closely related. During the period herein
involved, Ross Nichols was in charge of the tool room, and Foreman Brian John-
son was in charge of the machine shop at Plant 1. Clifton Malamphey, Jr., a
toolmaker, was Nichols' assistant, and was in charge of the tool room during
Nichols' absence.
Swope, an experienced mechanic, was employed by the respondent in June 1940,
and worked continuously thereafter for the respondent until February 17, 1944,
when he was laid off or discharged. From a starting wage of 50 cents an hour, he
received periodic increases and was, at the time his employment was terminated,
paid 95 cents an hour plus a 5 cents an hour bonus allowed for work on a night
shift. He was first employed on various machine operations in the machine shop,
and in August 1943, was transferred to the tool-room, after he had protested his
rate of pay and had requested a certificate of availability which would enable him
to seek employment elsewhere. At the time of the transfer, Swope's pay-roll
classification was changed from "radial drill press operator" to "tool maker,
Class C " 2 This change admittedly represented a promotion . He continued as a
tool maker until the termination of his employment.
Davis, an experienced machinist, was employed by the respondent in October
1941, and worked continuously thereafter until February 23, 1944, when he was
discharged or laid off He was first employed in the sub-assembly of aircraft
engines, and was later transferred to the machine shop on the second or " swing"
shift. Effective March 3, 1943, Davis was classified as a Class C tool maker, at
$1 05 an hour. On March 16, 1943, he received a merit increase of 5 cents an hour.
2 Tool makers are classified as A, B, and C, in descending order of skill and wage.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Effective July 16, 1943, he was reclassified as tool maker, Class B, at $115. Effec-
tive December 1, 1943, Davis received a "merit increase for superior quality work",
raising his basic wage from $1.15 to $1.20 an hour.
Gilpin, a machinist of many years' experience and with some 12 years of experi-
ence as a tool maker, was employed by the respondent as it machinist in December
1942, at $1.25 an hour After about one month in the machine shop, he was trans-
oferred to the toolroom, and worked continuously thereafter as a tool maker in
Plant 1, night shift, until February 23, 1944, when he was laid off or discharged.
Prior to July 16, 1943, he was classified as a Class B machinist; on August 16 of
that year he was reclassified as a Class A machinist. As of the date his employ-
ment was terminated, he was paid $130 an hour plus a 5 cent bonus.
It is seen from the foregoing, that at the time of the termination of their em-
ployment, Swope, Davis and Gilpin were experienced tool makers, a job classifica-
tion requiring the highest degree of skill, and were also qualified as machine
operators and all around machinists,' having been engaged on numerous machine
operations in their employment with the respondent, as well as previous thereto.
It further appears that the work of the named employees was satisfactory
throughout their tenure of employment. This is shown by their record of ad-
vancement in job classification and numerous wage increases. There are addi-
tional circumstances to support the conclusion Early in December 1943, Davis
approached Edward Davey, works manager in charge of production at Plant 1,
and,asked for a wage increase or a certificate of availability. Davey replied that
he would see that Davis was "taken care of," and commented that the hitter's
work had been very satisfactory, and that he had cited Davis to other employees
to show the advancement that could be obtained through meritorious work
Davey also remarked, "Your friend Gilpin is the best man I have got in the tool
room . . . I don't know what I would do without hum."' ' On another occa-
sion, in 1943, Brian Johnson remarked that Swope had broken a production record
on a radial drill press operation. Respondent's position that the sole reason for
the termination of their employment was lack of work, in effect, concedes that
Swope, Davis, and Gilpin were satisfactory in the discharge of their respective
duties
Beginning December 13, 1943, a hearing was held pursuant to the Board's
complaint which alleged that the respondent had dominated and rendered
illegal assistance to the formation and administration of Kinner Motor Em-
ployees' Association, Inc, herein called the Association.` The Board's complaint
was based on a charge filed by the Machinists In this hearing, Davis testified
as a Board witness and gave testimony adverse to the respondent and, in par-
ticular, contradicted the testimony of Brian Johnson, a witness for the respond-
ent. While neither Swope nor Gilpin testified in the hearing, they attended it
and, on occasion, sat with Davis. It is clear that their presence at the hearing,
was known to management. Subsequent to the hearing, when asked by employee
Edward Handzel how the hearing came out, Foreman Johnson remarked, "these
damn fools over in the toolroom are just a bunch of trouble makers," and further
said that he did not see why if they did not want to belong to the Association,
they had to take the matter to the Board.'
3 "Machinist" represents a higher classification of skill than "machine operator ," since
the former is experienced in the operation of various machines whereas the latter may be
required to operate only one.type of machine.
' This finding is based on the uncontiadicted and credited testimony of Davis
See footnote 1, supra
This finding is based on Handzel',s credited testimony. Johnson denied that lie made
the statements attributed to him by Handzel or that lie had a conversation with Handzel.
In view of the entire testimony the undersigned is unable to credit his denial.
KINNER MOTORS, INC. 911
Subsequent to the Board hearing, Swope, Davis, and Gilpin participated ac-
tively in the Machinists' organizational drive. They each signed, authorization
cards, and wore Machinists' buttons while at work in respondent's plant, and
Davis was designated Machinists' stew'ard on his shift at Plant 1 and for some
10 days prior to his discharge or lay-off wore a steward button. Because of
their close association, the three employees were sometimes referred to by other
employees as "The Three Musketeers." 4
On January 25, 1944, the Board's Trial Examiner in Case No. 21-C-2307, issued
his Intermediate Report in which he based certain findings adverse to the re-
spondent on the testimony of Davis and discredited conflicting testimony of
Foreman Johnson.' On February 9, the Machinists distributed several hundred
circulars outside respondent's plant advertising a union meeting. On Febru-
ary 17, when Swope reported for work, Ross Nichols, foreman in charge of the
toolroom, advised him, without prior notice, that there was no further work
for him. When Swope asked why he had not been given advance notice of the
lay-off, Nichols replied, "Things are changing rapidly and one never knows what
happens from one day to the next." a Swope returned several days later and
was given his pay check and a termination slip which stated : "Laid off-
Termination of Contract." '
On February 23, when Gilpin and Davis reported for work at their usual
hour they found that their work cards were missing and were advised by a plant
guard that they were wanted at the personnel office. At the personnel office, a
Miss Gremmels advised them, "You are terminated. Didn't you know it?" and
reading from their termination slips, commented, "This says, `lay-off, lack of
work.' " Personnel Director Emmett J. Sullivan, called from an inside office,
said "Boys, I don't know a thing about this . . . Nick [Nichols] just called
me and said there wasn't any work for you." Davis and Gilpin were then escorted
inside the plant by an armed guard where they received their tool clearance slips.
They returned for their checks on the following day and received their termina-
tion notices which stated : "lay-off; lack of work. No available work for this
employee."
As previously noted, it is respondent's position that Swope, Davis and Gilpin
were temporarily laid off because of lack of work. It appears that on December
29, 1943, contracts in an amount of $1,500,000 involving production at Plant 1 were
cancelled, leaving a balance of $400,000 in contracts for that plant, and no new
contracts for that plant were obtained until subsequent to February 23 1944. It
further appears that no toolmakers have been employed in the tool room at Plant
1, on a night shift, since the named employees were discharged or laid off.
The tool room of the same plant on the day shift has functioned continuously
to the present, but without increased personnel. There has also been a gradual
reduction in personnel of the entire night shift at Plant 1 over a period of a year
or more. The foregoing, however, presents only a partial picture of respondent's
total operations.
In addition to Plant 1, respondent has had in continuous operation for the past
year, Plant 2. The two plants are physically separated by a narrow alley and in-
sofar as machine operations and tool making are involved, are engaged iin produc-
tion of the same general character, so that the transfer of personnel from one plant
to the other is not only feasible but is a matter of common practice as shown by
Y The Trial Examiner's findings were subsequently confirmed by the Board. See : 57
N. L. R B. 622.
8 This finding is based on Swope's credited testimony Nichols gave a somewhat different
version of the conversation but was, on the whole, a less credible witness than Swope.
The undersigned, however, credits respondent's witnesses that it does not customarily give
advance notice of discharge or layoff.
618683-45-vol. 59-59
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the entire record. Five of the total of 19 employees on the night shift of Plant-1
as of August 1, 1943, were thereafter transferred to jobs in Plant 2 Whereas the
total employment at Plant 1 has been maintained at a fairly stable level, Plant 2
has had an increased personnel, exclusive of office help, of from 164 on July 31,
1943, to 450 on April 30, 1944. The cancellation of contracts involving Plant 1,
as alleged by respondent in support of its position, appears actually to have had
little effect on total employment, since respondent's own records show that a total
of only 19 employees of Plant 1 were laid off on asserted grounds of lack of work
or reduction in personnel due to cancellation of contracts. Of these, 16 were en-
gaged in motor mount installations in the field, and their employment was termi-
nated when the installations were completed. It appears therefore that only
Swope, Davis and Gilpin of all these employed on regular and continuous opera-
tions in Plant 1, had their employment terminated during this period for the
alleged reason of lack of work.
Not only did the cancellation of contracts affecting Plant 1, not necessitate or
cause a general reduction in personnel, but to the contrary, respondent substan-
tially increased its total personnel in the period immediately following the cancel-
lations, and throughout the period prior to and subsequent to the lay-off or dis-
charge of Swope, Davis and Gilpin, solicited applicants for jobs which these em-
ployees were qualified to fill, through advertisements inserted in various news-
papers. During the period of January 1, 1944 to April 20, 1944, respondent hired a
total of 137 employees for production or tool department jobs, at a wage rate of 85
cents an hour or more. Of these all were employed at Plant 2, except five who were
employed at Plant 1, and seven were rehired after a leave of absence.
Swope, Davis and Gilpin testified that there was no slackening of work in the
tool room at any time prior to their respective lay-offs or discharges. On Jan-
uary 1, 1944, subsequent to the cancellation of contracts, the respondent requested
occupational draft deferment for Davis on the ground that he was engaged in a
highly skilled operation, that it would take six months to replace him, and that
he could be replaced only out of industry. There is no plausible explanation
for this request if respondent anticipated a slackening of work following can-
cellation of contracts which would require it to terminate Davis' employment.
Assuming, however, that respondent closed its tool room on the night shift of
Plant 1 because it was no longer essential to production, it would appear that
as a matter of normal business practices, in view of the admitted difficulty in
recruiting highly skilled employees under war conditions, respondent would,not
have terminated the employment of Swope, Davis and Gilpin without some effort
to utilize their skills in the operation of its two plants. However, Nichols, who
caused the termination of their employment, and Davey, with whom he consulted
in the matter, both admitted that they gave no attention to the matter of utilizing
the skills of these employees in other departments That there was work
available for them is clearly indicated
On February 17, the date that Swope was discharged, respondent hired a tool-
maker at Plant 2. On February 21, 25, 27 and 28 it hired employees in the
following job classifications- milling machine operator, 'radial drill operator,
grinder, surface grinder, and engine lathe operator, at wages ranging from 95
cents to $1.20 an hour.
Swope, Davis and Gilpin were each qualified and experienced in these opera-
tions. Subsequently, respondent hired numerous other employees in machinist,
machine operator, and other equivalent job classifications which the three named
employees were qualified to fill. An incident which involved the hiring of Lee
Munkachy casts further doubt on the validity of respondent's contention that
Davis and Gilpin were laid oft because of lack of work.
KINNER MOTORS, INC. 913
On February 23, the day on which Davis and Gilpin were laid off, Munkachy
applied for tool and die work and was advised by Personnel Director Emmet J.
Sullivan" that there was no opening. On returning home that night he found a
letter from Sullivan, dated February 23, which bore the following text :
We regret that in error you were told that we could not use you. We can
start you in the tool room Monday night at $1.05 per hour.
Please report at 4 p in. Monday at the personnel office ready to start to,
work.
Munkachy saw Sullivan on Monday, February 28, and was advised by the latter
that he would be hired as a toolmaker at Plant 1. When he reported for. work
the next day, however, he was asked to take a temporary job in Plant 2. It was
his uncontradicted and credited testimony that he accepted the work with the
understanding that he would be transferred to toolmaker work in Plant 1. Find-
ing his work unsatisfactory in Plant 2. Munkachy asked for a release and was
told by Howard Sharrar, night superintendent at Plant 2, that within two weeks
he would be transferred to Plant 1 Sharrar took Munkachy into Plant 1, showed
him the tool room there, and advised him that he would work under Nichols.
Later, Sharrar told Munkachy to "keep it under" his "hat" about the transfer
and not to talk to other employees about it, since things were not yet ready for
the transfer.
Sullivan testified with reference to the February 23 letter, that at the time he
wrote the letter he did not know that Davis and Gilpin were being laid off He
also testifiLd that the respondent did not keep in touch with laid off employees
with reference to future employment. Admittedly, however, he saw Davis and
Gilpin in the personnel office after 5 p. m. o'clock on February 23, at which time
it is reasonably assumed, on the basis of his letter to Munkachy, he had received a
requisition to hire a toolmaker. In any event, Davis and Gilpin had further
contact with the personnel office on February 24, when they returned to get their
final checks, at which time the personnel office indubitably had knowledge of the
requisition It, further appears from Sullivan's testimony that requisitions for
hiring came to him from the plant or department head. Therefore, it must be
assumed that a requisition for the hiring of a toolmaker at Plant 1 had been
issued by either Davey or Nichols as of the date Davis and Gilpin were laid off
allegedly for lack of work That Munkachy was not actually assigned to work
in the tool, room of Plant 1 but was advised that he would shortly be transferred
to that departineut and cautioned not to tell his fellow employees of the promised
transfer. is strongly indicative, in the absence of any explanation whatever, of a
deliberate effort to conceal the actual circumstances of his hiring
In view of the actual hiring of numerous new employees at Plant 2 subsequent
to and contemporary with the dischaige of Swope. Davis and Gilpin. in positions
which these employees were qualified to fill, the transfer of certain other em-
ployees from Plant 1 to Plant 2, and the equivocal circumstances of the hiring
of a toolmaker on the date that Davis and Gilpin were discharged, as set forth
above, the undersigned' is unable to credit respondent's position that the em-
ployment of Swope, Davis and Gilpin was terminated because of lack of work.
Respondent's interference with the organizational activities of its employees,
is established in the Board's finding that the respondent, shortly after the
Machinists began an organizational drive among its employees, fostered and
rendered illegal support to the Association 19 Personnel Director Sullivan and
U At the time of the hearing Sullivan's title was Director of Industrial Relations, but
throughout the period involved herein he was respondent's personnel director.
11 See ' 57 N L. R B 622.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foreman Brian Johnson participated in this illegal activity Mention has been
made of Davis having testified in the prior Board proceeding adversely to the
respondent. It was not, however, until subsequent to the hearing and in the
period immediately preceding their respective discharges, that Swope, Davis
and Gilpin wore their Machinists buttons and that Davis was made steward on.
his shift. The Machinist's leaflet distributed throughout the plant on February 9,
is indicative of continuing organizational activity. Nichols, however, who,'with
Davey's approval, terminated the employment of the three named employees,
denied that he knew that Davis testified in the Board hearing, that he dis-
cussed the hearing with representatives of management, that he had any knowl-
edge that the Machinists were engaged in organizing respondent's employees
other than what he gained from a newspaper -iejiiirt, or that he had ever seen
Machinists buttons worn in the plant, although admittedly a number of employees
wore such buttons. In view of the total circumstances, Nichols' denials are not
credible and reflect an intent to conceal the actual motivation of the discharge.
On the basis of the foregoing findings of fact and the entire record, the under-
signed finds that the respondent discharged Swope, Davis and Gilpin because
of their union affiliation and activities, and, with especial reference to Davis,
because of the latter's having testified in a prior Board hearing By the afore-
said action, the respondent discouraged membership in the Machinists and in-
terfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
It is the respondent's further contention that, as.-mining orguendo it laid off or
discharged Swope, Davis and Gilpin because of their union activity. certain
statements and conduct occurring while they were still employees of the respond-
ent'but which came to the knowledge of resf>$ndent subsequent to February 23,
constitute cause for a refusal of reinstatement and should, as a matter of Board
policy, bar their reinstatement." In support of this position, respondent adduced
testimony showing that each of the discharged employees made statements ad-
verse to the purchase and sale of war bonds. Leslie Dayhotf, a Board witness,
and Frank Holmes, John Shelley, Glenn Gilmore, John Szabo, Clifton Malamphey,
Vera Allan, and Theodore Gerth, respondent witnesses, testified concerning the
alleged statements, which appear to have occurred during the several war loan
drives conducted by the U. S. Treasury Department 1R The testunony of these
it The respondent also asserted as a bar to the reinstatement of the discharged employees,
that they had failed to avail themselves of grievance procedure which tt e respondent alleged
was provided in its contract with the Association The Board having found that the Asso-
ciation was company dominated , It is obvious that the employees were not regwred to pursue
a grievance procedure of a contract which was invalid from -its inception
12 Dayhoff testified that Swope and Davis saiditl=at it Was foolish to spend money for war
bonds, that they would not "materialize ," and that nobody -would,ge't - their money back front
them. He further testified "We had had arguments off and on about it " He admitted that
he told Foreman Johnson that he did not believe in the sale of war bonds himself Shelley
testified that on an occasion when he had bought a bond , Gilpin reniai kcd "I gue,s we can
paper the house with them when the war is over, " and that on another occasion . Davis re-
marked that the bonds would not be worth a "darn " after the war. Gilmore testified that
in the Fall of 1943, he heard both Gilpin and Davis say that the bonds would be no good
after the war. ' He further testified that after the second bond drive , Gilpin offered to S,' ' l
him a bond for $10 and remarked, "If I buy them , I sell them, anyway" Malamphey, a
tool maker and assistant to supervisor Nichols, testified that lie had heard Davis and Gilpin
say that the bonds would be no good after the war and they "were also selling them as soon
as possible ." According to Malamphey, Gilpin said that the Government would not have
enough money to pay off the war bonds after the war because of a different "system " Ap-
parently this was a reference to some doctrine of technocracy which appears to have fur-
nished the basis for the statements that the bonds would have little monetary value cftei r e
war. Siabo • testified that when he told Gilpin that he had bought about $ 1500 worth of
KINNER MOTORS, INC. 915
witnesses , collectively , is to the effect that on numerous occasions Davis and
Gilpin, and much less frequently , Swope, expressed an opinion that war bonds
would be worth little or nothing after the war. None of the aforesaid witnesses
reported or complained to manqggmnt concerning the aforesaid statements,
iu•ior to the discharge of the three employees, except Frank Holmes. Holmes
testified that when he received his first bond, he told Davis and Gilpin that he
had bought a $50 bond, and they replied that the bonds would not be worth $5
after the war. On that same day, Holmes told Foreman Brian Johnson of the
statements Johnson testified that he advised Holmes on that occasion, "Frank,
don't take that seriously They are just kidding you. You are just an old
man and they are kidding you " Johnson did not consider, at that time-which
according to him was the Fall of 1943-that the matter was serious enough
to bring to the attention of management.
Gilpin admitted that be had stated that it was not patriotic to buy war bonds
at a,profit "I would say that here or anywhere," he testified, "that I thought
anybody that would buy war bonds for a profit while the boys are dying in France,
wasn't very patriotic I say give the money ; they were giving their lives. He
denied, however, that be stated that the bonds would be worthless. Davis ad-
nutted that he told Dayhoff on one occasion that he did not believe in "tying up
all the money that a man had in War Bonds, because they might be frozen at
any time and he wouldn't have the opportunity to get necessary money in case
of sickness or so forth " He did not recall having said at any time that the
bonds would be worthless "I said." he testified. "that it was possible that the
Government debt would get so big they couldn't pay off. I didn't say they would.
I said it was possible " He also admitted that he told Dayhoff that he did not
know that the bonds would be good "since the war bonds in the first war were
not redeemed at full price and this was a much bigger debt at this time than it
was before " Swope testified that after reading a newspaper article in January
bonds, Gilpin said . "Well they won t be worth a nickel after the war. They won't be no
account " Ile also testified that in January , 1944 , when Swope was solicited to purchase a
bond, Swope replied "I wouldn't give you a nickel for any War bond " Vera Allen testified
that Davis came to her machine and "made the statement that the bonds would not be worth
it nickel aftei the war . ' Gertb testified that he had heard Swope, Davis and Gilpin each
say that the bonds would be no good after the war . , The aforesaid witnesses were generally
unable to give a detailed account of the conversations in which the aforesaid statements
occurred
Szabo who manifested an antagonism toward the discharged employees , admitted that he
was opposed to labor unions Allen was identified with the company-dominated Association
and in a wiitten statement given to Foreman Johnson on February 28, stated that Swope,
Davis and Gilpin had refused to buvibonds during the fourth war loan drive, but made no
mention of Davis having made the statement mentioned in her testimony . Malamphey as
assistant to Foieman Nichols, was identified with management, and after the Board hearing
of December 1943, in which Davis testified as a Board witness, told Davis and Gilpin, "You
guys didn t have any business bringing my name up down at the bearing " On another
occasion, observing that Davis wore a Machinists' badge, Malampbey reminded him that he
had previously said that he was against unions , and remarked , "I don't think much of a
fellow that will say one thing and do another " Gerth, when Davis said that he believed
that the employees might be represented by the Machinists "before long," replied : "I don't
agree with you Knowing the company executives as I do, they will close the plant
before they will allow any such union in this building" With due consideration of such
bias as is reflected by the foregoing, the undersigned is convinced upon thh basis of the entire
testimony that Swope, Davis and Gilpin made statements relative to the sale and purchase
of war bonds substantially as set forth in'the preceding paragraph The undersigned does
not credit Szabo's testimony to the effect that Gilpin remarked on one occasion that the
Red Cross profited from the sale of blood donations There was no corroboration of this
testimony and Gilpin denied that he made the statement. It was his undisputed and credited
testimony that he donated blood on one occasion and was advised by his physician against
further blood donation
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1944, on the amount of money spent by the U. S. Treasury in advertising the
sale of war bonds, lie remarked to Dayhoff that it might be more practical to
spend the money on ' the purchase of war materials instead of advertising. He
did not recall ever having stated that the bonds would be worthless. Swope,
Davis and Gilpin each participated in pay-roll deductions for the purchase of
war bonds. Swope when first presented by Foreman Johnson with a form au-
thorizing pay-roll deduction for the purchase of bonds, advised Johnson that he
would take all he could, and later authorized an increase in his pay-roll deductions.
Upon the basis of the entire testimony, the undersigned is convinced that
Swope, Davis and Gilpin each made statements to fellow employees, which would
be understood by the employees. addressed as adverse to the purchase of war
bonds. The undersigned believes, however, that these statements were gener-
ally made in a context ' of casual discussion and argument among employees,"
and that while, in the opinion of the undersigned, certain of the statements were
ill-advised and improper, they did not represent a wilful and malicious obstruc-
tion of the war effort, and are not distinguishable in principle from such criti-
cism of certain phases of the war effort as is heard in and out of industry, and
which is privileged under our constitutional guarantee of free speech. Through-
out the period when these statements were made, Swope, Davis, and Gilpin were
actually cooperating in the purchase of war bonds through pay roll deductions,
and there is no evidence that their talk provided an actual impediment to the
sale of war bonds 14 or created disorder or commotion in the plant, or in any way
interfered with respondent 's production or discipline ." Had it done so, it
assuredly would 'have reached the ears of management, and yet Ross Nichols,
immediate supervisor of the discharged employees, admitted that he never heard,
and respondent admitted that it had no knowledge of, the statements prior to the
date when the employment of Swope, Davis and Gilpin was terminated.
Sullivan testified that he first learned of the bond statements on February 28,
from Foreman Brian Johnson who volunteered the information, and that he in-
structed Johnson to obtain proof of the statements in writing. Pursuant to these
instructions, Johnson approached the employees during their working hours and
asked them "Do you want to make a statement in regard to the talk these boys
have been passing around about the war bonds?" It appears that only Gerth,
Allen and Szabo, of the employees thus approached, were willing to give written
statements. Johnson testified that he told Sullivan that the employees were
'*incensed" over the bond talk and he thought something could be done to "restrain
those boys," and that getting the written statements was his idea. It is recalled,
however, that in the interval since Holmes talked to Johnson about statements
of Gilpin and Davis on war bonds, at which time Johnson did not consider the
matter serious enough to call to the attention of management, Davis had testified
in a Board hearing concerning Johnson's activity in assisting the formation of
13 Shelley having testified that Davis told him the bonds would not be worth a "darn"
after the war, on being questioned by Board's counsel , "what did the other people say
about it , if they said anything'" answered , "Just a matter of laughter , and that is all
... ' He also testified , "I said myself I didn't think they would be any good ." According
to Shelley , who worked on a day shift, "Anything the night shift does , the day shift jumps
on them. Anything the day shift does, the night shift jumps on them. Any argument,
it is always pro and con ; it has always been that way "
14 Sullivan testified . "For the Fourth War Bond we were awarded the Treasury Depart-
ment Minute Man flag with the T and the star."
1" Respondent ' s contention that reinstatement of the discharged employees would be
disastrous to employee morale , appears groundless since there is no evidence that during
a period extending from the summer of 1943 to February 1944, the morale of respondent's
employees was adversely affected by the statements relative to the purchase and sale of
war bonds.
KINNER MOTORS, INC. 917
the Association, in contradiction of Johnson's testimony in the same proceeding.
Johnson's report to Sullivan and activity ni procuring written statements from
employees, many of whom were under his supervision, during their working hours,
is properly evaluated in the light of these circumstances, and in the light of
Johnson's admission that the men in the tool room were "disagreeable" to him.
On or about March 3, 1944, there was a hearing before the local committee or
representatives of the War Manpower Commission, on the matter of the rein-
statement of the discharged employees The respondent neither then nor there-
after until the present hearing, asserted the statements on war bonds as reason
for its refusal to reinstate the discharges. The undersigned is convinced in the
light of the entire circumstances,16 that the respondent's position relative to the
war bond statements, represents an effort and intent to evade the consequences
of its illegal act of discriminatory discharge, and that its actual motivation both
in the discharge and in the refusal thereafter to reinstate, is properly found in
the union affiliation and activities of the three employees The question there-
fore becomes one of remedy and it is for the Board to determine whether as a
matter of policy it should direct the reinstatement of Swope, Davis and Gilpin.
While in no sense condoning the statements of the discharged employees rela-
tive to the purchase and sale of war bonds, the undersigned believes that in the
absence of an affirmative showing that the said statements resulted in an inter-
ruption of or interference with production and/or discipline, the Board should
not depart from its normal practices as to remedy.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in con-
nection with the operations of the respondent as 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 disputes burdening and ob-
structing commerce and the free flow of commerce. '
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, it will be recommended that the respondent cease and desist from such
conduct and take certain affirmative action which the undersigned finds necessary
to effectuate the policies of the Act.
The undersigned has found that the respondent discharged Richard Arthur
Swope, Lewis Gilpin, and James Macon Davis because of their union affiliations
and activities, and, with particular reference to James Macon Davis, because he
gave testimony under the Act. The undersigned will recommend that the re-
spondent offer Swope, Gilpin, and Davis; immediate and full reinstatement to
their former or substantially equivalent positions and make each of them whole
for any loss of pay he may have suffered by reason of the discrimination against
him, by payment to him of a sum of money equal to that which he normally would
have earned as wages from the date of his discriminatory discharge, to the date
of the offer of reinstatement, less his net earnings 4 during said period.
36 The respondent asserted as further reason for its refusal to reinstate. that the employees
engaged in cooking on company premises in violation of company rules, but abandoned this
defense when its position was rendered untenable See also footnote 11, supra.
17 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the 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 Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N L R. B. 440. Monies received for
work performed upon Federal, State, county, municipal or other work-relief projects shall
be considered as earnings . See Republic Steel Corporation V. N. L. R. B., 311 U. S. 7.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists , affiliated with the American Fed-
eration of Labor, is a labor organization within the meaning of Section 2 (5)
of the Act.
2. By discriminating in regard- to the hire and tenure of employment of Rich-
ard Arthur Swope, Lewis Gilpin, and James Macon Davis and thereby discour-
aging membership in a labor organization , the respondent has engaged in and is,
engaging in unfair labor practices , within the meaning of Section 8 ( 3) of the
Act.
3. By discriminating against James Macon Davis in regard to hire, tenure, and
conditions of employment because he gave testimony under the Act, the respondent
has engaged in and is engaging in unfair labor practices , within the meaning of
Section 8 ( 4) of the Act.
4. 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.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 (6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent , Kinner Motors , Inc., its officers,
agents, successors , and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in International Association of Machinists, af-
filiated with the American Federation of Labor, by discharging or refusing to
reinstate any of its employees or in any other manner discriminating in regard
to their hire or tenure of employment , or any term or condition of employment;
(b) Discharging or otherwise discriminating against any of its employees
because he has given testimony under the Act ;
(c) In any manner interfering with, restraining , or coercing its employees in
the exercise of the right to self-organization , to form labor organizations, to
join or assist International Association of Machinists , affiliated with the Ameri-
can Federation of Labor, to bargain collectively through representatives of their
own choosing , and to engage in concerted activities 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 undersigned finds will effec-
tuate the policies of the Act: ,
(a) Offer to Richard Arthur Swope, Lewis Gilpin , and James Macon Davis im-
mediate and full reinstatement to their former or substantially equivalent employ-
ment without prejudice to their seniority or other rights and privileges ;
(b) Make whole Richard Arthur Swope , Lewis Gilpin , and James Macon Davis
for any loss of pay they may have suffered by reason of the discrimination against
them, by payment to each of them of a sunT of money equal to that which he
normally would have earned as wages from the date of his discriminatory dis-
k
KINNER MOTORS, INC. 919
charge, as found herein, to the date of the respondent's offer of reinstatement,
less his net earnings 18 during such period;
(c) Post immediately in conspicuous places in each of its Glendale, California
plants, and maintain for a period of at least sixty (60) consecutive days from
the date of posting, 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 paragraph 1 (a), (b) and (c) of these recommendations; (2) that the
respondent will take the affirmative action set forth in paragraph 2 (a) and (b)
of these recommendations; and (3) that the respondent's employees are free
to become or remain members of International Association of Machinists, affili-
ated with the American Federation of Labor, or any other labor organization
of their choice, and that the respondent will not discriminate against any
employee because of membership in or activities on behalf of International
Association of Machinists, affiliated with the American Federation of Labor,
or any other labor organization.
(d) File with the Regional Director for the Twenty-first Region, in writing
within ten (10) days from the receipt of this Intermediate Report what steps
the respondent has taken to comply therewith;
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notify said Regional Director
in writing that it has complied with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November' 26, 1943, any
party or counsel for the Board may within fifteen (15) days 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, Rochambeau
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 permission to
argue orally before the Board request therefor must be made in writing to the,
Board within ten (10) days from the date of the order transferring the case to
the Board.
WILLIAM E. SPENCER,
Trial Examiner.
Dated August 5, 1944.
18 See footnote 17, supra.