Robeson Cutlery Co., Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1946

67 N.L.R.B. 481 (N.L.R.B. 1946)

In the Matter Of ROBESON CUTLERY COMPANY, INC. and INTERNATIONAL
ASSOCIATION OF MACHINISTS
Case No. 3-C-734.-Decided April 18,1946
DECISION
AND
ORDER
On October 19, 1945, the Trial Examiner issued his intermediate
Report in the above-entitled proceedings, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that the respondent cease and desist therefrom
and take certain affirmative action, as set forth in a copy of the
Intermediate Report attached hereto. Thereafter, the respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board has considered the rulings of the Trial Examiner and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed. None of the parties requested oral argument before
the Board at Washington, D. C., and no argument was had.
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
with the addition noted below :
We agree with the Trial Examiner that on May 2, 1945, and at
all times thereafter, the Union represented a majority of the em-
ployees in the appropriate unit and that on May 8, 1945, and there-
after, the respondent refused to bargain with the Union not because
of any good faith doubt as to the Union's majority status but because
of the respondent's opposition to self-organization among its em-
ployees and to the principle of collective bargaining. The record
shows that the respondent, after its unlawful refusal to bargain with
the Union on May 8, laid off 9 union members, which left the Union
with 42 members out of the remaining 91 employees in the appro-
priate unit. However, inasmuch as the lay-offs were made on a dis-
criminatory basis, as detailed in the Intermediate Report, we find,
as did the Trial Examiner, that the lay-offs do not impair the
Union's previously established majority status.' Moreover, we would
IN. L. R. B. v Bradford Dyeing Association , 310 U S 318 Franks Bros Co v
N. L R B , 321 U. S. 702
67 N. L R. B, No. 64
692148-46-vol 67-32 481
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arrive at the same conclusion even if the lay-offs had not been violative
of the Act, because they occurred after the respondent's refusal to
bargain with the Union. Under all the circumstances, we find, for
the reasons stated in our Supplemental Decision in Matter of Karp
Metal Products Co., Inc.,2 that the policies of the Act will best be
effectuated by requiring the respondent to bargain collectively with
the Union.
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, Robeson Cutlery Company,
Inc., Perry, New York, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in International Association of Ma-
chinists, or any other labor organization of its employees, by laying
off or refusing to reinstate any of its employees, or by discriminating
in any other manner in regard to their hire or tenure of employment,
or any term or condition of employment;
(b) Refusing to bargain collectively with International Associa-
tion of Machinists as the exclusive representative of its production
and maintenance employees, including the stock clerk and shipping
clerk, but excluding working foremen, office, clerical and supervisory
employees, in respect to rates of pay, wages, hours of employment,
and other conditions of employment;
(c) Dominating or interfering with the formation and adminis-
tration of any labor organization of its employees, and contributing
support thereto;
(d) 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 International Association of Machinists, 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 Harry Van Scoter, Ray Arnold, and Charles J.
Passamonte full and immediate reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority
or other rights and privileges;
(b) Make whole Charles J. Passamonte, Harry Van Scoter, Leroy
Mason, Ruby Converse, Marie Calkins, Ray Arnold, Charles Krauss,
2 51N L R.B 621
ROBESON CT-TLT`RY COMPANY, INC. 483
Grace Krauss, and Cassius Howe, for any loss of pay they may have
suffered by reason of the respondent's discrimination against them,
by payment to each of them of a sum of money equal to the amount
which he or she normally would have earned as wages from the date
on which he or she was laid off to the date of reinstatement or offer
of reinstatement, less net earnings during said period;
(c) Upon request, bargain collectively with International Associa-
tion of Machinists as the exclusive representative of its production
and maintenance employees, including the stock clerk and the ship-
ping clerk, but excluding the working foremen, office, clerical and
supervisory employees, in respect to rates of pay, wages, hours of
employment, and other conditions of employment;
(d) Refrain from recognizing the Cooperative Committee, or any
successor thereto, as the representative of its employees for the pur-
poses of dealing with the respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other con-
ditions of employment;
(e) Post at its plant at Perry, New York, copies of the notice at-
tached to the Intermediate Report, marked "Appendix A." 3 Copies
of said notice, to be furnished by the Regional Director for the Third
Region, shall, after being signed by the respondent's representative,
be posted by respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are custo-
marily posted. Reasonable steps shall be taken by the respondent
to insure that said notices are not altered, defaced, or covered by
any other material;
(f) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply therewith.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.
INTERMEDIATE REPORT
Mr Francis X Helgesen, for the Board.
MacFarlane, Hari is & Goldman, of Rochester, .\' Y, by Mr. Harrtl D. Goldmoil,
for the respondent
Messrs J Paul Kessler and H. I. Smith, of Rochester, N Y. for the Union
STATEMENT OF THE CASE
Upon an amended charge duly filed on June 19, 1945, by International Associa-
tion of Machinists, A F. of L, herein called the Union, the National Labor Rela-
' Said notice, however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words, "The Recommendations of a Trial Examiner " and substi-
tuting in lieu thereof the words , "A Decision and Order "
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Board, herein called the Board, by its Regional Director for the Third
Region (Buffalo, New York), issued its complaint dated June 20, 1945, against
Robeson Cutlery Company, Inc, 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). (2), (3), and (5), and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint and notice of hearing were duly served upon
the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent: (1) from on or about April 1, 1944, engaged in acts of inter-
ference, restraint, and coercion ; ' (2) on or about August 1, 1944, did inaugurate,
create and establish a labor organization among its employees known as the
Grievance Committee,' hereinafter called the Committee, and at all times since
August 1, 1944, has dominated and interfered with the administration and func-
tioning of the Committee and contributed financial and other support to the
Committee; (3) on specified dates during May and June 1944 laid off Charles
J. Passamonte, Ray Arnold, Harry Van Scoter, Charles Krauss, Leroy Mason,
Grace Krauss, Ruby Converse, Cassius Howe, and Marie Calkins because of
their membership and activity in the Union and thereafter reinstated six named
employees and refused and failed to reinstate Chailes J Passamonte, Ray Arnold
and Harry Van Scoter in order to discourage membership in the Union; (4) that
all production and maintenance employees except for office, clerical and all
supervisory employees having authority to hire, promote, discharge, disc.pline
or otherwise effect changes in the status of employees or effectively recommend
such action constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of the Act; that from on or about May 1, May 9, and
May ii, 1944, a majority of the employees in said unit had designated the Union
as their bargaining representative and by virtue thereof the Union since said
dates has been the exclusive representative of the employees in said unit for
the purposes of collective bargaining; and that respondent since said dates has
refused and failed to bargain collectively with the Union, and (5) by the acts
described above the respondent iliteifered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act
The respondent duly filed its answer in which it admitted some of the allega-
lions in the complaint but denied that it had engaged in any unfair labor prac-
tices The respondent alleged aflirmatii ely that upon being notified by the Board
that the Committee was illegal, it discontinued and dissolNed said Committee
and that said Committee has not been in existence since September 1944. Further,
that the laying off of the persons named in the complaint wars for sound business
reasons occasioned by changes in production schedules and that all persons who
did not express an unwillingness to take other jobs were offered other jobs as
soon as work was available for said persons.
Pursuant to notice, a hearing was held at Perry, New York, on July 26, 27,
and 30, 1945, before the undersigned, the Trial Examiner duly designated by the
Chief Trial Examiner The Board and the respondent were represented by
counsel, and the Union by lay representatives. All parties participated in the
hearing Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded to all parties. At
the close of the Board's case the respondent moved to dismiss the complaint
The motion was denied. At the close of the hearing the undersigned took under
' Stated generally, these acts are alleged to consists of anti-union statements, questioning,
threats, advice, and discouragement against affiliation with the Union
2 Although the complaint sets forth the name of the Committee as above, according to
the by-laws introduced in evidence it was known as Co-Opei atii e Committee
ROBESON CUTLERY COMPANY, INC. 485
advisement the motion of the respondent to dismiss the complaint for lack of
proof. This motion is hereby denied. The motion of the Board's attorney to
<,onform the pleadings to the proof in formal matters was granted without
objection by the respondent. At the close of the hearing counsel for the Board
argued orally before the undersigned, counsel for the respondent waived the
making of any oral argument Counsel for the respondent subsequently filed
a brief.
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, Robeson Cutlery Company, Inc., is a corporation duly organized
under and existing by N iitue of the laws of the State of New York, having its
principal office in the city of Rochester, County of Monroe, State of New York.
It operates a plant in the village of Perry, County of Wyoming, State of New
York, which alone is involved in this proceeding It is there engaged in the
design, manufacture, sale and distribution of knives, cutlery and related products.
During the calendar year 1944 the respondent in the conduct of its business
Operations at its plant in Perry, New York, purchased raw materials consisting
principally of steel, leather and wood valued at approximately $30,000, of which
approximately 80 percent was shipped to its plant at Perry, New York, from points
outside the State of New York. During the same calendar year 1944 the respond-
ent manufactured products having a value approximated at $500,000, of which
approximately 90 percent was sold and shipped to points outside the State of
New York.
The respondent admitted at the hearing that it is engaged in commerce, within
the meaning of the Act.
II THE ORGANIZATIONS INVOLVED
International Association of Machinists, A. F. of L, affiliated with the American
Federation of Labor, is a labor organization which admits to membership employ-
ees of the respondent.
The Co-Operative Committee, an unaffiliated organization, at the times material
herein, was a labor organization admitting to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement
The details related hereinafter arose within the framework of these more
general facts : In March 1944, the Union instituted an organizational campaign at
the respondent's plant. On April 21, 1944, it wrote respondent that it represented
a majority, and it requested a meeting to discuss the procedure by which the
matter of representation could be handled. A meeting was held at the Union's
office in Rochester, New York, on or about May 8, at which the respondent stated
that it did not think the majority of employeeA wanted a union and thought it
would be best to proceed through the Board. On May 9, the Union filed a petition
for certification of representatives with the Board Several days later, on May
11, a conference was held in the office of the attorney for the respondent, attended
by representatives of the Union, the respondent, the respondent's attorney, and a
Field Examiner of the Board The Field Examiner suggested a consent elec-
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion to the parties. The respondent did not agree and held to its original position.
On May 12, according to the respondent, it laid off four male employees This
was followed, on May 13, by the lay-offs of two female employees ; on May 20, of
another male employee; and on June 1, of a male and female employee. At no
time during the conferences of May 8, and May 11, was any mention made by
the respondent of the prospect of any lay-offs. In a letter to the Board dated May
25, the respondent advised that it would then agree to a consent election, provided
the election was held promptly. Asa result of the lay-offs, the Union filed charges
with the Board and thereafter, on or about June 11, the Union requested permis-
sion of the Regional Director of the Board to withdraw its petition for certifica-
tion of representatives, which request was approved on June 13. On or about
August 1, the respondent inaugurated and established a labor organization among
its employees known as the Co-Operative Committee.
B Interference, restraint, and cocci ion
As heretofore found, organizational activities among respondent's employees
began in March 1944' The respondent was fully aware of these activities Thus
Emerson E. Case, general manager of respondent's plant and its vice-president,
testified that the day after the fist meeting of respondent's employees he' was
told about the Union being organized, by about 20 people. He explained that
Perry, New York is a small town and everyone seems to know what is going on.
During the month of Apfil, Jeannette Peters,' an employee of the respondent
for 12 yeais and one of those originally approached when union organization
was started, went into Case's office to use the phone Case asked her "how the
Union was coming along," Peters answered "line," whereupon Case said that he
understood Peters "was one of the faithful eleven."' About the second or third
week in May, Peters was visiting in the plant' when she was stopped by Saul
Frankel, respondent's president, who asked het how the Union was coming along.
Frankel, according to Peteis, also said, "it didn't matter much whether the plant
continued or not."'
During the latter pait of April or early May Charles Krauss and Leroy Mason,
employees who took an active part in the organizational activities of the Union,
3 1 Paul Kessler, business agent for the Union, testified credibly, that employees of the
Kaustine Company , a neighboring plant, where the I A. M. is the recognized bargaining
agent , contacted respondent 's employees and arranged for a meeting . Several of the
respondent ' s employees attended the meeting at the hotel in Perry , and after talking over
the matter of organization decided to put on a campaign
4 Incorrectly referred to in the transcript as Jeannette Peterson
5 Peters testified that she thought the reference to "faithful eleven," at the time meant
something about the Union, but that later in a conversation with another employee, she
was told that there were just 11 employees at the union meeting the night before when
Peters was there, but that after she left the meeting, more employees came in. Peters'
testimony in this regard was uncontradicted and is credited.
6 Peters suffered a fractured ankle about May 1 , and did not actually return to work in
the plant until sometime in June
4 Peters' recollection as to this incident was rather hazy. It was not until her recollec-
tion was refreshed by a statement that she had previously given to a Board agent, which
she admitted was a true and accurate statement at the time she gave it, that she remem-
bered Frankel's making the statement. Peters testified that she did not hatie more than
two conversations with Frankel regarding the Union , and could not recall at which con-
versation Frankel made the statement regarding the plant Frankel was unable to appear
as a witness at the hearing because of a serious illness The Trial Examiner upon being
advised of Frankel ' s condition , during the hearing called the attention of respondent's
attorney to Section 20 of the Board ' s Rules and Regulations , regarding depositions.
Respondent 's counsel did not ask for a continuance of the hearing nor (lid he make appli-
cation to take the deposition of Frankel . The undersigned credits Peters ' testimony in
this regard and finds that Frankel made the statement substantially as testified to by
Peters
•ROBESON CUTLERY COMPANY, INC. 487
were told by Stanley Powell, assistant superintendent of respondent's plant, to
see Case in his offices During the course of a conversation which lasted almost
2 hours mostly about unions, Case asked the men why they wanted a union
and what he had done to make them want to organize Case said he did not
think unions were good for the working man and wanted to know what good
it would do them When the men remarked that union goods sold better than
non-union made goods, Case said he did not think that was so Case then
went on to state that a union was just a money making job for certain men who
have no interest either in the company or the employees, but were interested
onl" in organizing people to obtain their dues and by that means the organizers
earned their livelihood. Case also cited several cases from a book which he had,
which in his opinion pointed out that unions did not help the employees. Case
then told Mason and Krauss that b_'cause they had signed authorization cards,
that did not make them union men and further that they were neither bound nor
under obligation to join the Union merely because they had signed cards, unless
they wanted to join. At one point in the conversation Case asked the number
of employees who had signed up with the Union.'
It is the respondent's contention raised in its brief, that any statements made
by Case during the conversation with Mason and Krauss were clearly permissible
under the doctrine of free speech. While it may well be, that standing alone the
statements-might be considered privileged, nevertheless, when coupled with other
circumstances, such statements have been held to constitute interference with
the rights of employees guaranteed in Section 7 of the Act 10
Viewed in the context of the respondent's entire course of conduct, its dis-
couragement of the employees against affiliation with the Union, its disparaging
and derogatory statements about unions, its inquiry regarding the number of
employees signed up in the Union, the lay-offs hereinafter found to be discrimina-
tory, its refusal to bargain with the Union hereinafter found, and its formation,
sponsorship and support of the Committee, hereinafter found, Case's statements
were clearly coercive and not privileged or permissible'
It is clear, and the undersigned finds, that by the activities of Frankel and
Case, as found hereinabove, the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act, in violation of Section 8 (1) of the Act.
C. The lay-offs
In February 1944, the respondent was awarded a government contract to pro-
duce 115,000 hunting knives for the U. S. Navy.12 Delivery in accordance with
the terms of the contract was to be made, Y/.3 in, February, 1 in March, and the
balance in April. In March, the respondent hired 13 new employees, and in
April 9, new employees 13 In its effort to continue its civilian production, the
8 Case testified that he called both men to his office at the same time so there would be
no question raised as to what one might or might not have said
8 The findings in this paragraph are based upon the testimony of Mason and Krauss.
Case did not deny that he discussed unions with these employees As a matter of fact,
Case admitted that the substance of his conversation with Mason and Krause in his office,
was that he wanted to know if there was sufficient interest in the plant among the men to
have an election and a union. The undersigned finds that the statements attributed to
Case were made substantially as testified to by Mason and Krauss
10 N L. R. B v. Trojan Powder Co , 135 F. (2d) 337 (C. C. A. 3), cert. den. 320 U. S. 768.
11 See N L R. B. v M E Blatt Company, 143 F. (2d) 268 (C. C. A. 3).
"The respondent had awards from the government previously in 1942 and 1943 and
had manufactured hunting knives for both the Army and Navy.
13 New employees were hired during the month of April on the following days ; one on
April 3; one on April 7 ; four on April 17; one on April 18; one on April 24; and one on
April 26.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent fell badly behind in its schedule of delivery to the Navy and as
a matter of fact did not meet any of the delivery dates set forth in the contract.
Sometime in April, Case conferred with Alfred W. Ferrell, superintendent of
respondent 's plant, and Stanley Powell , assistant superintendent in charge of
production, told them that civilian production would have to stop and to use
all employees that could possibly be used on the government contract and to
temporarily lay off those employees for whom work could not be found on the
government contract. Ferrell and Powell in turn instructed the eight working
foremen in the plant accordingly, and further told them that if there were any
employees whom they were unable to place on the government work in their
own departments, to refer them to Ferrell or Powell for transfer to work in
other departments in the plant."
According to the respondent's records, seven terminations of employment took
place during the month of April for various personal reasons of the employees.
Starting with May 1, and up to and including June 1, there were, Case testi-
fied, eleven terminations of employment as follows : one for poor health ; one
discharged for poor work; and nine for the reason "no work." All mne of the
employees who were laid off because of "no work" had signed authorization cards
for the Union ; six of the nine constituted the organization committee of the
Union.16
On May 6, before the lay-offs of the nine employees because of."no work"
began, the respondent employed in its plant 100 persons exclusive of office workers,
working foremen, and other supervisory employees.16 According to the Union's
records, 51 of the 100 employees had signed union authorization cards, consti-
tuting a proportion of 51 percent14
Thus, although the proportion of employees who had prior to May 6, authorized
the Union to represent them was 51 percent, 100 percent of the employees who
were laid off were union members
As the Board stated in the Woolworth case,18
It would be expected that in a selection of employees to be laid off without
regard to union affiliation, the proportion of union members among those laid
off would approximate the proportion existing in the group from which
selection was made . . . The natural assumption would be that in any
selection to which the factor of union affiliation was irrelevant, union mem-
bership would be distributed among those laid off and those retained as if by
the operation of chance. Of course, any combination is a possible result on
the basis of pure chance. Variation from the expected does not necessarily
establish that the operation of chance has been frustrated by intelligent
selection. When, however, the variation is marked . . ., the hypothesis that
union membership was irrevelant to the selection gives way to the inference
that the selection was made upon a discriminatory basis.
14 The findings in this paragraph are based upon a reconciliatiton of the testimony of
Case, Ferrell, and Powell
16 This finding is based on the testimony of Harry Van Scoter which is undenied and
credited . Van Scoter was chairman of the organizing committee , and one of the nine
employees laid off. The other members of the organizing committee who were laid off
were Charles Krauss , Grace Krause , Charles Passamonte , Leroy Mason , and Ray Arnold.
16 This finding is based on Case 's testimony which is credited , and a list of employees
for the week May 6, prepared by the respondent and received in evidence as a Board
exhibit
1TAlthough the Union ' records showed 52 cards, the figure 51 is arrived at because the
name Ira Terwillager which appeared on the authorizations was not included on the list of
employees referred to in footnote 16, supra.
19 Matter of F. W . Woolworth Co., 25 N. L. R. B . 1362, aff'd 121 F. (2d) 658 ( C C A. 2).
ROBESON CUTLERY COMPANY, INC. 489
As heretofore found, upon the inception of union activity in the respondent's
plant, Case became aware that the union was being organized. He testified that
in it small town like Perry, New York, everyone was aware of what was going on.
The knowledge on the part of the respondent as to the nature of these activities
appears to have been more precise however, than that the Union was carrying
on its organizational activities in the plant. Case testified that as to the first
meeting of the Union he was informed of it by about 20 people. As to the third
and last meeting of the Union, he was able to refer in a conversation with Peters,
with exactness, when he stated that it was his understanding that she " was one
of the faithful 11" present at that meeting" Powell, testifying as to the Union's
activity in the plant, stated that he heard about it from various employees.
Ferrell testified you "You couldn't very well walk up and down Main Street with-
out knowing about it "
With respect to the membership in the Union of Van Scoter, Charles Krauss
and Mason and their activity in its behalf, it is clear that the respondent had
knowledge prior to their lay-off and the undersigned so finds. As hereinabove
related in a conversation with Krauss and Mason, Case asked why the employees
wanted a union. As to Van Scoter, Powell testified that he was aware of Van
Scoter's activity in behalf of the Union. The afore-mentioned employees together
with Grace Krauss, Passamonte and Arnold made up the organization committee
of the Union, which openly carried on its organizational activities 20 The under-
signed finds that the respondent knew of the union activities of Grace Krauss,
Passamonte and Arnold prior to their lay-off.
The undersigned further finds that the respondent knew or believed that Howe,
Calkins, and Converse were members of the Union Experience evidenced by
the Board's consideration of many similar situations over the past several years
and a realistic view of the matter. makes it evident that in small plants in a
community such as this, union activities and those engaged therein become gen-
erally known It is most significant that of its 100 employees, the nine laid off
were all union members, including the entire organization committee, and as
hereafter found, the respondent's reasons for the lay-offs were inadequate. As
was stated by Mr. Justice Douglas in the Link-Belt ease : 21 "The Board was
justified in relying on circumstantial evidence of discrimination and was not
required to deny relief because there was no direct evidence that the employer
knew these men had joined Amalgamated and was displeased or wanted to make
an example of them."
Having in view (1) the respondent's opposition to the Union as found in Section
III, B supra; (2) the respondent's knowledge of union activities and of the indi-
viduals actively engaged in such activities; and (3) the excessive proportion of
union members laid off, it was incumbent upon the respondent at the hearing to
offer proof negativing the inference that the lay-offs were discriminatory. As
was said by the United States Circuit Court of Appeals for the Seventh Circuit
in the Montgomery Ward case. 22
This inference of discriminatory discharge leaves it up to the employer to
give an adequate "explanation of the discharge," even though the burden of
proof remains on the Board [i e, upon the ]Board's prosecuting agents],
since it is obvious that the reasons of the discharge "lay exclusively within
i° See footnote 5, supra.
S0 The record reveals that Grace Krauss was the most active woman member of the
Union. Passamonte testified that he solicited memberships openly in the plant during
lunch hours and at the homes of employees in the evening. Van Scoter testified that
Arnold was one of the employees assisting him in organizational activities.
'IN. L . if. B v Link-Belt Company , 311 U. S. 584
22 Montgomery Ward & Co , Inc v N. L . R. B., 107 F (2d) 555 ( C. C A 7)
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its [the employer 's] knowledge" ( citing N. L. R. B. v. Remington , Rand, Int.,
94 F (2d ) 862 (C. C A. 2) ).
The Board does not claim nor does the evidence establish that the lay -offs were
not necessary It is the contention of the Board , however, that in making its
selections of the persons to be laid off, the respondent took into account and was
actuated by considerations related to their union membership and activity. The
respondent 's answer alleges that the lay-offs were occasioned by reason of changes
in production schedules . In addition the respondent contended at the hearing
that the lay -offs were brought about because of the limited amount of machinery
in the plant and the fact that all machines had to be used for grinding blades
for the government contract . The undersigned will now consider the lay-offs
of the employees named in the complaint and examine such explanation as the
respondent has given for the lay -offs and the manner in which they were effected.
Harry Van Scoter: Van Scoter commenced his employment with the respondent
in July 1918 , and with the exception of two periods of several months duration
each, worked continuously until he was laid off in May 1944 In the course of
his more than 20 years of experience , Van Scoter testified that he had performed
most of the jobs around the plant . Powell admitted that Van Scoter was a very
good worker. Van Scoter joined the Union at the inception of union activity,
was chairman at the meetings , and was chairman of the organizing committee.
Prior to his lay-off, according to Van Scoter 's undenied testimony, he was
employed in the assembly department as a tang finisher working on jackknife
blades, and would alternate this work with assembly work on hunting knives.
Van Scoter further testified that about six other employees performed the same
work lie did
Immediately prior to his lay-off, Van Scoter testified that he was working on
a three-bladed knife , on which he had finished two blades . The third blade had
not come up from the grinding room and Van Scoter was told by his foreman,
Willard Segling , that he would have to come back to the plant to finish the
third blade , whereupon Van Scoter left the plant about 11 a m. since apparently
he was not assigned to any other work.' Upon his return home , and after talk-
ing over with his wife what took place in the plant , they decided , that if Van
Scoter was not going to have steady work at the respondent's plant, he had
better get other employment . On Friday morning , while on his way to register
at the U. S E S. office, Van Scoter stopped at the plant and told Ferrell of his
plans. Ferrell according to Van Scoter 's uudenied testimony said, "I don't
want you to do that ." Ferrell then told Van Scoter to come in to work Monday
morning to complete the third blade on the knives on which he had been work-
ing, and further said, "In the meantime I will talk with some of the other men
here and see if they can't transfer one of the other men and give you work." '
Under these circumstances Van Scoter did not proceed to the 13 . S E S office
Van Scoter testified that upon his return to the plant the following Monday
morning, he completed the work on the third blade in about 3 hours and then
asked his foreman, Segl ing , what he was to do next , whereupon Segling told
him that he was to be laid off on orders from the office. This order seemed
strange to Van Scoter , and he told Segling that Ferrell had promised him work.
Segling then told Van Scoter he would have to see Ferrell ae
28 Van Scoter testified that prior to his lay-off, he had been continuously employed for
8 years
24 Van Scoter did not remember whether this took place on Monday or Tuesday. Segling,
according to Van Scoter, did not tell him when to come back to the plant
m This finding is based upon the uncontradicted, credible testimony of Van Scoter
20 This finding is based upon the undenied, credible testimony of Van Scoter. Segling
testified at the hearing as a witness for the respondent but was not questioned regarding
Van Scoter's lay-off.
ROBESON CUTLERY COMPANY, INC. 491
A