Stewart Warner Corp.

National Labor Relations Board - Board Decisions

Mar 20, 1944

55 N.L.R.B. 593 (N.L.R.B. 1944)

In the Matter of STEWART WARNER CORPORATION and UNITED STEEL-
WORKERS OF AMERICA, LOCAL 2937, AFFILIATED WITH THE C. I. O.
Case No. 9-C-1855.-Decided March 00, 1944
Mr. Benjamin E. Cook, for the Board.
Mr. F. H. Towner, of Chicago, Ill., for the respondent.
Mr. James Robb, of Indianapolis, Ind., for the Union.
Mr. William T. 1TThitsett, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF Ti-Ix CASE
Upon an amended charge dated September 9, 1943, and duly filed
by United Steelworkers of America, Local 2937, affiliated with the
Congress of Industrial Organizations, herein called the Union, the
National Labor Relations Board, herein called the Board, by its Act-
ing Regional Director for the Ninth Region (Cincinnati, Ohio), issued
its complaint dated September 11, 1943, against Stewart Warner Cor-
poration, Indianapolis, Indiana, 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)
and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint, and
Notice of Hearing thereon, were duly served upon the respondent and
the Union.
With respect to the unfair labor practices, the complaint alleged
in substance: (1) that from on or about March 1, 1943, the respondent
questioned its employees concerning their union affiliation; stated that
there had never been and never would be a union in the respondent's
plant; maintained surveillance of the activities of the Union and its
members; vilified and disparaged the Union and its leaders and
organizers; (2) that on March 10 and 11, 1943, the respondent dis-
charged or laid off five named employees and thereafter failed and
refused to reinstate them for the reason that they joined and assisted
the Union and engaged in concerted activities with other employees
for the purposes of collective bargaining or other mutual aid and pro-
55 N L R B, No 108
578129-44-vol. 55-39 593
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tection; and (3) that by the above stated acts, the respondent discrim-
inated with respect to the hire and tenure of employment of the five
named employees and interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
On or about September 22, 1943, the respondent filed an answer, ad-
mitting the jurisdictional allegations of the complaint and denying
that it had committed any of the alleged unfair labor practices. The
answer averred that the services of the five employees, alleged to have
been discriminatorily discharged or laid off, were terminated for the
reason that they were incompetent and insubordinate.
Pursuant to notice, a hearing was held at Indianapolis, Indiana,
from September 30 to October 3, 1943, before William F. Guffey, Jr.,
the Trial Examiner duly designated by the Chief Trial Examiner.
The Board, the respondent, and the Union were represented and par-
ticipated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all parties. At the beginning of the hearing,
the respondent renewed its motion, previously denied by the Acting
Regional Director, to dismiss paragraph 5 of the complaint I upon the
ground that the allegations contained therein were too vague and
indefinite. The Trial Examiner denied the motion. The respondent
then orally moved for a bill of particulars with respect to the matters
contained in paragraph 5 of the complaint. The Trial Examiner
granted the motion insofar as it sought the names of the respondent's
officers or agents who were claimed to have engaged in the conduct set
forth in paragraph 5 of the complaint, and the approximate dates
upon which it was claimed that such conduct occurred. At the be-
ginning of the next hearing session, counsel for the Board stated on the
record the information thus required. Near the close of the hearing
counsel for the Board moved to dismiss the complaint, without preju-
dice, insofar as it alleged that Virgil O. Scales was discriminatorily
discharged. This motion, which was grounded on the impossibility
of adducing evidence in support of the allegation because of Scale's
induction into the armed services, was unopposed. Ruling thereon
having been reserved, tfie motion was granted by the Trial Examiner
in his Intermediate Report. During the course of the hearing, rulings
were made by the Trial Examiner on various other motions and on ob-
jections to the admission of evidence. The Board has reviewed the
rulings of the Trial Examiner made during the course of the hear-
ing, and finds that no prejudicial error was committed. The rulings
are hereby affirmed.
I Paragraph 5 of the complaint contains the allegations set forth in (1) of the second
paragraph herein.
STEWART WARNER CORPORATION 595
On November 10, 1943, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties, in which
he found that the respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section 8 (1) and (3)
and Section 2 (6) and (7) of the Act, and recommended that the re-
spondent cease and desist therefrom and take certain affirmative ac-
tion to effectuate the policies of the Act. He further recommended
that the complaint be dismissed insofar as it alleged that the re-
spondent violated Section 8 (1) of the Act by engaging in surveillance
of the Union and by vilifying and disparaging it.
On December 13, 1943, the respondent filed exceptions to the Inter-
mediate Report and a supporting brief. Oral argument, in which
the respondent and the Union participated, was had before the Board
at Washington, D. C., on January 13, 1944.
The Board has considered the exceptions and brief submitted by the
respondent, and, insofar as the exceptions are inconsistent with the
findings of fact, conclusions of law, and order set forth below, finds
them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Virginia corporation having its principal office
at Chicago, Illinois, and operating a plant at Indianapolis, Indiana,
where it is engaged almost entirely in the manufacture of military
supplies under contract with the United States Government. The
principal raw inaterials used at the respondent's Indianapolis plant
consist of steel, brass, wood, aluminum, copper, bronze, and chemicals.
During the year ending August 31, 1943, the value of the raw mate-
rials used by the respondent at its Indianapolis plant was approxi-
Inately $5,791,008, at least 90 percent of which was shipped to the
respondent's Indianapolis plant from points outside the State of In-
diana. During the same period the total value of the finished products
of the Indianapolis plant was approximately $7,509,884, almost all of
which was shipped to points outside the State of Indiana. The re-
spondent concedes that it is engaged in commerce within the meaning
of the Act.
II. THE ORGANIZATION INVOLVED
United Steelworkers of America, Local 2937, is a labor organization
affiliated with the Congress of Industrial Organizations, admitting to
membership employees of the respondent.
•596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Introduction
In December 1942, several of the respondent's employees requested
the Union to assist them in establishing a labor organization at the
respondent's Indianapolis plant. During January, February, and
March 1943, several organizational meetings were held among small
groups of employees. During the same period many of the employees
signed union membership cards and others obtained transfer cards
from other locals of the Union so that they would be available as soon
as a local could be established at the respondent's plant. On March
4, 1943, James Robb, the Union's district director, informed J. W.
Dunn, the respondent's plant manager, that the Union was attempting
to organize the employees. According to the testimony of employee
Earnest E. Wolff, whom we. like the Trial Examiner, credit, the
Union's activity in the plant prior to the early part of March was in
"grapevine" form; the Union "was talked from one employee to the
other." This activity, Wolff testified, was at its most intense stage
between March 5 and 15. On March 5 or 6, a group of employees met
and decided to request the Union to grant a charter for a local at the
respondent's plant. On March 8, there was distributed at the plant
gates a union leaflet announcing that such a charter had been granted.
G. M. Bates, the respondent's director of personnel who effected three
of the four discharges hereinafter discussed, saw the leaflet being dis-
tributed and received one from Organizer Robb.2
On March 9, Al Speck, the Union's temporary president, told Robb
that the Union's March 8 leaflet had "stirred up a lot of enthusiasm
in the plant," and suggested that a steward system be set up and that
the organizational activity be more widely extended throughout the
plant. Pursuant to Speck's suggestion, Robb scheduled a meeting for
the evening of March 10. On that day Speck advised Robb that cer-
tain foremen in the plant had learned of the proposed meeting. Never-
theless, the meeting was held as scheduled, but it was attended by only
six or seven employees. In less than 24 hours after the meeting em-
ployees Cline and Roberts, who had been instrumental in the success
of the Union's membership campaign, Weller, vice president of the
Union, and Lockett were discharged.
B. The discrimination in regard to hire and tenure of employment
Prior to March 1943, the respondent operated three 8-hour shifts in
its ordnance division.' In an attempt to achieve higher efficiency of
2 This finding is based on the testimony of organizer Robb and Veilin Wilhoit, an em-
ployee who was interested in the Union We, like the Tiial Examiner, do not credit Bates'
denial that he received one of the leaflets
3 The ordnance division is sometimes refers ed to in the record as the machine shop.
STEWART WARNER CORPORATION 597
production in that division and thus avoid the criticism it had received
from the United States Navy Department for failure to meet its con-
tract schedules , the respondent , on February 20, 1943, decided to com-
press the three 8-hour shifts into two 10-hour shifts , thereby enabling
the respondent to make better use of its available manpower and
allowing itself a few non -production hours daily for the servicing of
machines. At 6 p. m. on March 7, the 2-shift arrangement became
effective . As a result of the change from 3 to 2 shifts, it became neces-
sary to terminate the employment of approximately 100 employees 4
From March 8 through March 20, 46 employees voluntarily quit their'
employment . From March 8 through March 30, 67 employees were
discharged. Included among those discharged during this period
were employees Weller, Cline, Roberts , and Lockett , who were alleged
in the complaint to have been discriminated against. In its answer to
the Board 's complaint the respondent alleged that the 4 employees
were selected for discharge because of their incompetence and insub-
ordination.
Burrell Weller commenced working for the respondent in October
1940 as a drill press operator at the rate of 60 cents per hour. On
January 6 , 1943, he became a set-up man in the drill press department
and continued on that job until his discharge on March 11, 1943. By
March 9, 1943, Weller was earning $1 . 08 per hour . On that date,
Albert MacBeth , Weller's foreman, informed him that he had been
increased to $1.14 per hour.
Weller joined the Union in the latter part of February 1943. He
was vice president of the Union 's local in the respondent 's plant. He
was on the Union's organizing committee and attended that commit-
tee's meetings . He solicited members for the Union . He attended
the Union's organizational meeting in Robb's office on March 10, the
4 G. M Bates, the respondent 's director of personnel , and w. W J. Wiles, the respond-
ent's assistant plant manager , testified that the change from 3 to 2 shifts and the discharge
of approximate'y 67 employees as a result thereof were a necessary part of the respondent's
attempts to achieve higher efficiency in production. Shortly after February 20, Bates
issued a bulletin concerning the change in the number of shifts which stated in part : "The
new program will in no way affect the number of employees now working, as all machines
are to be manned 100 % during the two working periods" Bates testified that the reduc-
tion of personnel in the ordnance division was required despite his previous announcement
to the contiary, because, between the issuance of his bulletin and the time of the reduction,
many absentees had returned to work in the ordnance division, and the alamite division, to
which he had intended transferring some of the ordnance division employees, had almost
completely shut down because materials for that division were no longer available. Like
the Trial Examiner, we find that the change from 3 to 2 shifts and the consequent reduc-
tion of personnel was a bona fide attempt to achieve increased efficiency in production.
5 The severance papers of these employees state that they were laid off because no work
was available. Bates testified that it is the respondent's practice to label all severances as
lay-offs unless the reason for the severance is something requiiing extreme penalty Bates
testified, however, that the employment relations of these 67 employees were completely
severed but they were spared a discharge record against them He testified, that for the
respondent's purposes, the employees were discharged, but for public record, they were
merely laid off In view of Bates' uncontradictcd testimony, we find, as did the Trial
Examiner, that the 67 employees referred to above were discharged and not laid off
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evening before his discharge. A few days prior to Weller's discharge,
S. Ted Cline, another employee alleged to have been discriminatorily
discharged, stopped Weller in the plant as the shifts were changing
and requested Weller to give him a supply of union membership cards.
Weller gave Cline about 12 or 15 cards. This transaction took place
within 10 feet of Foreman William Gilbert, who was not called to
testify.
When Weller reported for work at 7 a. in. on March 11, his time card
was not in the rack. He asked the timekeeper if there was some mis-
take concerning his time card. The timekeeper replied that there was
not and told him to report to the personnel department where he
awaited the arrival of Bates. When Bates arrived, he called Weller
into his office where his pay check and separation papers were pre-
pared and waiting for him. Bates told Weller of the reduction in
personnel, and said, "I hear you're unhappy with us, Burrell." Weller
replied that he was "very well satisfied" and reminded Bates that he
had worked for the respondent quite some time. Bates replied, "Yes,
I understand that, but you still will have to go." 6
The record is devoid of credible evidence supporting the respond-
ent's claim that Weller was discharged either for insubordination or
incompetence. Bates admitted, in fact, that Weller was not guilty
of any insubordination. The only evidence even tending to show in-
competence is Bates' vague and general testimony that Weller had
"not too much drill press experience" and that h: was "outrated as
far as his job was concerned." This testimony is unconvincing and
not credited in view of Weller's experience of almost 21/2 years as
either a drill press operator or a set-up man in the respondent's plant,
his promotion from operator to set-tip man, his increases in wages
from 60 cents to $1.14 per hour, his uncontradicted testimony that
his work had never been criticized, and the admission of the respond-
ent's attorney in oral argument before the Board that there was no
objection to Weller as a workman. Furthermore, at the time of the
discharge, he was qualified to act as inspector, drill press or drill
lathe operator. We find, therefore, as did the Trial Examiner, that
Weller was not selected for discharge because of incompetence and
insubordination.
S. Ted Cline began working for the respondent on January 19, 1943,
as a hand screw machine operator. He continued at this work until
his discharge on March 10, 1943.
Cline joined the Union about the first of March 1943. Thereafter,
he solicited union memberships at the plant and supplied membership
cards to other solicitors. He succeeded in persuading more than a
6 The foregoing is based on Weller 's credible testimony , which was not denied by Bates
in any substantial respect
STEWART WARNER CORPORATION 599
,dozen employees to join the Union. On one occasion seven or eight
signed membership cards were taken from his lunch pail by an un-
known person and were never returned. As noted in the discussion
of Weller's case, shortly before Cline's discharge, Weller supplied
him with union membership cards in the plant during the change of
shifts while Foreman Gilbert stood nearby.
Clint testified that on the night of March 10-11 he was working on
the shift which operates from 6 p. in. to 4: 30 a. m., and that at about
2 a. m. on March 11 lie was called to Bates' office. His pay check and
severance papers were prepared and waiting for him. According
to Cline, Bates said to him, "I understand you are very unhappy."
When Cline denied that he was unhappy in his work, Bates informed
him that the respondent was compelled to discharge some employees
and that Bates had selected Cline as one of the dischargees. Cline told
Bates that he could not understand it and reminded Bates that when
the respondent hired him it was understood that Cline was beyond
draft age and was being hired for the duration of the war. To that
Bates replied, "Well, that has no part to play with this now." Cline,
according to his testimony, asked Bates if there was anything wrong
with his work and Bates replied that there was not, but that the re-
spondent had to discharge some employees and that Cline's name was
on the list. Cline told Bates that his production rate was much higher
than that fixed by the time-study department for his job and asked
Bates if such things were not considered in the selection of people to
be discharged. Bates answered, "No, not in this case, we can't con-
sider them." There was some discussion between Cline and Bates con-
cerning the respondent's good faith in its selection of employees for
discharge. During this discussion Cline told Bates that he knew
that he had done his work well and that he would have to consider his
dismissal "a case of discrimination." To this Bates replied: "Haven't
you heard I am an attorney? . . . Well, I know how to take care of
those things so you call it whatever you want to and I will just call
it no work." According to Cline's further testimony, Bates also said
that the respondent was running the plant and that it would be run
"without any outside help, organized or otherwise." Cline was re-
quired to leave the plant immediately upon the conclusion of his
conference with Bates.
Cline also testified that a few days after his discharge he asked
Bates for a letter of reference; that Bates told him that as a rule the
respondent did not give letters of reference, and said, "I can't in this
case anyway because in your particular case there might be some things
of a very confidential nature that I can't put in writing." Bates, ac-
cording to Cline, stated that he would speak over the telephone with
anyone who called him with reference to Cline and his work. Bates
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then added, "I don't worry a damn bit about any union," and related
how "a fellow" came to him and apologized for having joined a union
and "just cried like a baby."
Bates testified that on the night of March 10-11 there were at least
10 or 12 operators, some of whom were senior to and more capable
than Cline, who were waiting for machines to be set up, that Cline
was away from his machine several times during that night, and that
Cline had spent much of his time talking to other operators. Bates
further testified that on that night he had a complaint from the assist-
ant plant manager, W. W. J. Wiles, that Cline was causing confusion
in the plant, that his production was clown, and that Cline's machine
should be running.? According to Bates, he then called Cline to the
office and told him that he was reducing the force by releasing those
who were either dissatisfied or did not care to continue working.
Bates denied telling Cline that the respondent would run its plant
without outside assistance. He did not deny stating that he was an
attorney and knew how "to take care of those things." Bates testified
that he did not recall Cline's request for a reference letter.
We, like the Trial Examiner, credit Cline's testimony and find that
the circumstances of Cline's discharge were substantially as Cline re-
lated and that Bates made the statements attributed to him by Cline.
We find further that Cline asked Bates for a reference letter and that
Bates on that occasion made the statements which Cline attributed to
him.
Bates testified, in effect, that the reason Cline was included among
the discharged employees was that Cline had repeatedly requested a
wage increase, that he had claimed that he could produce much more
than the set rate for his machine but that he would not do so until he
received a wage increase, and that he had received reports that Cline
spent too much time away from his machine which caused considerable
confusion among the other operators. F. H. Morgenthaler, one of
Bates' personnel assistants, testified that Cline asked him for a wage
increase several times and that Cline's foremen, Robert Humphrey
and William A. Loveall, stated that Cline deserved no increase be-
cause of his frequent absences from his machine. Humphrey testi-
fied that he had given Cline the same reason for not recommending an
increase. Loveall testified, however, that he had told Morgenthaler
that Cline did not have enough seniority to warrant an increase. He
further admitted that he knew of no other reason why Cline's wage
rate should not be increased.
Cline testified that during the 71/,, hours he worked on the night
of his discharge he completed what would amount to 10 hours work
on the basis of the production rates set by the time-study department;
7 Wiles neither corroborated nor denied Bates' testimony ; he did admit, however, that
he had never spoken to Cline
STEWART WARNER CORPORATION 601
that during the preceding night he turned out during the 10-hour
shift the equivalent of 171/,> hours work on the basis of the rate set by
the time-study department; that his production had always been at
about that same rate during the time he worked for the respondent;
and that his scrap ran less than 1 percent while the scrap of the shift
preceding him ran from 10 to 25 percent of total production. Cline's
testimony concerning his production and scrap rates is uncontradicted.
Cline also testified that he had received no complaints concerning the
quality of his work and that he was never warned about being absent
from his machine except on one occasion just prior to his discharge
when he had been washing his hands for lunch and the set-up man told
him that Foreman Humphrey had said for him to get back to work.
Cline testified that his work had been complimented by inspectors,
set-up men, and Foreman Loveall and Humphrey. He testified that
when he was leaving the plant after his discharge, he told Foreman
Humphrey about his discharge and asked Humphrey about the quality
of his work. According to Cline, Humphrey replied, "Your work was
definitely all right, and if you have been fired . . . I don't know
a damn thing about it." Cline testified that William A. Lytle, the
plant guard who escorted him to the gate after his discharge said,
"If you ever want any reference or ever want anything let me know,
I'll be glad to have you call on me because I know you got a rim-
ming in there," and added, "I have passed there many times and you
was always busy working, I know you was a good worker." Lytle
denied making the statements which Cline attributed to him. Hum-
phrey testified that he could not recall ever complimenting Cline on
the quality of his work. Loveall admitted that Cline's production
"was about normal."
We, like the Trial Examiner, credit Cline's testimony and find that
his production rate was higher than the set rate, that his work was
commended by his superiors and others who observed his work, and
that he had received no serious complaints about his work.
The respondent endeavored to show that Cline was guilty of ex-
cessive absenteeism. Cline's labor analysis card, kept by the respond-
ent in the normal course of business, does not support this claim.
It shows that during the 71/2 weeks Cline worked for the respondent, he
was absent a total of only 4 days. Cline, without contradiction, testi-
fied that a relapse from double pneumonia accounted for 3 of the 4
days of absence. There is no showing that Cline's absences were un-
excused or that they were excessive when compared with the absences
of other employees. Moreover, absenteeism was not uncommon in
the respondent's plant, as is shown by the respondent's assertion that
some employees were discharged in March to make jobs available for
returning absentees.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cline denied that he was ever insubordinate. The only evidence
of insubordination is Bates ' testimony that "there were several reports,
at least from supervisors over different arguments , I think" between
Cline and his supervisors ." The evidence fails to support the re-
spondent 's contention that Cline was insubordinate.
We find, as did the Trial Examiner, that the respondent 's claim that
Cline was selected for discharge because of incompetence and insub-
ordination is not supported by the evidence.
Nellie Edna Roberts was employed by the respondent on October 5,
1942 , as a drill press operator . At the time of her discharge on March
10, 1943, she was employed as a hand screw machine operator.
Roberts became interested in the Union in January or the early part
of February 1943, and began soliciting other employees to join the
Union. Cline testified that Roberts was active on behalf of the Union
and that he had seen her solicit union memberships and had heard her
talk about the Union in the plant . Leona David , an employee who
worked next to Roberts , testified that she heard Roberts discuss the
Union. Roberts further testified that she distributed union member-
ship cards to other employees before she went to work on the night
of March 10 , 1943; that during the change of shifts Bates was stand-
ing at the cafeteria counter in the plant at the time when Roberts had
in her possession 25 union membership cards, 2 of which she then gave
to employees Dorothy Lockett and Gertrude Woodley; and that
Bates saw her hand the membership cards to Lockett and Woodley.
Lockett corroborated Roberts' testimony concerning this incident.
Lockett testified that after Roberts gave her the membership card and
she started to sign it , Roberts mentioned the fact that Bates was stand-
ing nearby ; that she, notwithstanding that fact , completed signing
the card at that time; and that Bates saw her sign it.° Bates testified
that he did not remember this incident ; that he did not see Lockett sign
a union card ; that he never saw Roberts distribute union cards in the
plant. We, like the Trial Examiner , credit the testimony of Roberts
and Lockett , and find that Bates saw Roberts hand Lockett the card
and saw Lockett sign it.
Roberts testified that she saw Bates standing in the plant during
the evening of March 10 and that about 10 :30 on that evening she was
8 The nature of most of Bates ' testimony is illustrated by that relating to the source
of the claimed reports concerning Cline's arguments:
Q Can you remember who made the report?
A Of course , its hearsay I won d say one of my personnel assistants , and some-
body in the plant might have been the one, maybe the plant superintendent, or the
foreman. It might have been Mr Gilbert.
8 Lockett testified that the season she was certain that Bates saw her sign the card was
because of the fact that at the time she started to sign the card, Bates was getting some
pickles from a jar at the cafeteria counter and when Lockett began to sign the card, Bites,
for a few minutes , stopped his activity and held a fork full of pickles above the jar while
he watched Lockett sign the card.
STEWART WARNER CORPORATION 603
called to Bates' office where the following conversation took place.
Bates told Roberts that he had received complaints that she was pass-
ing out "some literature" and asked her if she was buying or selling
lottery tickets. Roberts replied that she was not; whereupon Bates
inquired, "Well, do you know what the unrest is among the employees
and especially the women?" Roberts told Bates that she did not
know there was any unrest and asked Bates if there was anything
wrong with her work. Bates replied that there was nothing wrong
with her work and then turned to Esther Haggard, one of Bates' per-
sonnel assistants, who was present, and asked her if there were any com-
plaints about Roberts' work. Haggard, according to Roberts, replied
that there were not. Bates then told Roberts that "It was very nice to
have this talk with you. Go on back to your machine." Roberts
further testified that at about 2: 30 on the morning of March 11 she
was again called to Bates' office where Bates informed her that she was
one of the employees to be discharged and said, "Get this straight, we
have never had a union here, by God, we never will have. If you
want to join a union you better go over to Curtiss Wright's, they have
got a good union there." Roberts' check for the money due her and
her separation papers were prepared and ready for her when she
entered Bates' office. At the conclusion of Roberts' conference with
Bates at about 2: 30 a. m., she was required to leave the plant immedi-
ately and, pursuant to Bates' prior arrangements, was-taken home by
one of the plant guards. Roberts testified, without contradiction, that
on the way out of the plant she told Humphrey, her foreman, that she
had just been discharged and that Humphrey tersely expressed his
surprise by saying, "Well, I'll be God damned."
Bates testified that during the evening of March 10, he received
reports from the police matron that Roberts had, spent a considerable
number of hours in the rest room and that she was not working; that
at the same time he received reports from the assistant plant engineer
that there were too many people away from their machines and
others were just standing around; that he received reports that Rob-
erts was spending her time selling tickets for a lottery; and that for
those reasons he called Roberts to his office. According to Bates'
version of the conversation which took place in his office, Roberts
denied selling lottery tickets and stated that she was unable to work
a 10-hour shift because she was heavy on her feet and that as far
as she was concerned the respondent would have to go back to the
three 8-hour shifts. Bates then told Roberts of the complaints made
by the police matron and that Assistant Plant Manager Wile had
noticed that she had been away from her machine too long. When
Roberts replied that she was willing to try the 10-hour shift and
that she wanted to work and do a good job, Bates told her to return
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to her work and that she must stay at her machine. Bates further
testified that Roberts returned to her. machine, remained there for
about 5 minutes, went to the wash room, again "spent considerable
time" away from her machine, and that he then called her into the
office and discharged her. Bates testified that when Roberts was in
his office on this occasion Roberts said, "I have nothing to do with
the union," and that he replied that the respondent was concerned
about production and not about unions and that whether or not
Roberts belonged to a union was immaterial so long as she would stay
at her machine and do her work. Bates denied that he had ever told
Roberts that there never had been and never would be a union in the
plant. He testified that he could not recall asking Roberts about
unrest in the plant.
Haggard testified that she was in Bates' office at the time when he
talked to Roberts early in the evening of March 10; that she did not
recall the conversation very clearly but that she did remember Bates
discussing with Roberts the reports that she had spent a great deal
of time in the rest room away from her machine and that she had been
selling lottery tickets. Haggard further testified that she had no first
hand knowledge of Roberts' activities and that she knew only what
the police matron had reported about Roberts loitering in the rest
room. Haggard testified, however, that after Bates had talked to
Roberts the first time on the evening of March 10, she made her
own check of Roberts' absences from her machine and reported that
matter to Bates. She also testified that Roberts had been reported
for loitering in the rest room prior to March 10. Foreman Humphrey
testified that he was Roberts' supervisor in March 1943, that at that
time he noticed Roberts away from her machine on a number of
occasions, and that about March 10 he warned Roberts to pay more
constant attention to her machine. He was unable, however, to state
just how often she was absent from her machine. He testified that
when Roberts was absent from her machine she was told that he had
no objection to her going to the rest room but only to her "staying
up there so long," but that he did not know how long she had stayed
there.
Roberts testified that on the night she was discharged she did not
spend more than 15 minutes in the rest room and that Bates did not
mention loitering in the rest room during either of her conferences
with him during that night 10 She testified that the only thing she
said to Bates concerning the 10-hour shift was that none of the em-
ployees liked it because the hours were too long and that she particu-
larly found it difficult to remain on her feet that long. Roberts denied
that she ever indicated that she would quit her job because of the
10 I3aggard admitted that female employees are permitted a 15-minute rest period.
STEWART WARNER CORPORATION 605
10-hour shift. She testified that she never left her machine except
when necessary and that she had never received any complaints about
leaving her machine or about the quality of her work. According
to her uncontradicted testimony, Roberts' work had been compli-
mented by Joe Mahoney, an inspector, and Bob Cisk, a supervisor of
the drill press operators; on the night of her discharge, when her
machine was working poorly and the set-up man was unable to get it
properly adjusted, she asked three or four times to be removed from
the machine and Foreman Humphrey refused to grant her request,
saying that Roberts "was as good an operator" as he had. Further-
more, in addition to the work which she was performing at the time
of her discharge, she was qualified and had experience on the assem-
bly line and operating a turret lathe and a drill press.
We, as did the Trial Examiner, reject the testimony of Bates, Hag-
gard, and Humphrey concerning Roberts' working habits and the cir-
cumstances surrounding her discharge and credit Roberts' testimony
regarding these matters. Like the Trial Examiner, we also find that
Bates inquired about unrest in the plant, and that he made the anti-
union statement attributed to him by Roberts. We find further that
Roberts received compliments about her work from her supervisors
and that she received no criticism of her work or because she was
absent from her machine.
The respondent endeavored to show that Roberts was guilty of ex-
cessive absenteeism. Her labor analysis card, kept by the respondent
in the normal conduct of its business, shows that from the week end-
ing January 5, 1943, to the date of her discharge, Roberts was absent
about 19 days. She testified that during this period she was incapac-
itated for 2 weeks with a sprained ankle and that she lost 2 additional
days when her daughter underwent an operation. There is no
evidence of her absenteeism prior to January 5. What evidence
there is of absences is of little if any probative value since, except
for Roberts' explanation, there is no showing that the absences were
unexcused or that they were excessive in comparison to the work
records of other employees or as tested by the expectancy of absen-
teeism in the respondent's plant at the time in question.
There is no evidence in the record of any insubordination on Rob-
erts' part except the testimony of Bates that Roberts was insubordi-
nate on the night she was discharged "inasmuch as she disobeyed the
company rule about working." Since the evidence of Robert's neg-
lect of her work has been discredited, there is no credible evidence of
insubordination even by Bates' standards.
We find, therefore, that the respondent's claim that Roberts was
selected for discharge because of incompetence and insubordination
is not supported by the evidence.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roberts testified that after her discharge the United States Em-
ployment Service sent her back to the respondent for employment in
the ordnance division and that Haggard refused to accept her for
employment. Haggard could not recall this incident but testified that
it might have occurred. We credit Roberts' testimony and find that
the respondent refused to reemploy Roberts after her discharge.
Dorothy Lockett began working for the respondent on November
27, 1942, as an assembler on the alamite line. She became an inspec-
tor in the ordnance division about December 27, 1942, and continued
in that work until her discharge on March 11, 1943.
Lockett joined the Union on March 9, 1943. Roberts, Lockett's
mother, gave her a union membership card and Lockett signed it while
they were in the cafeteria about 6 p. in. on March 10 and while Bates
was standing nearby. The circumstances surrounding Lockett's sign-
ing of the union membership card are related above in connection with
the discussion of Roberts' discharge. We have found that Bates saw
Lockett sign the card.
When Lockett returned to her work after lunch at about noon on
March 11, she found a note on her desk asking her to see Haggard.
Lockett's testimony regarding her conference with Haggard is sub-
stantially as follows: When Lockett went to Haggard's office, Hag-
gard informed her of the necessity of reducing personnel because of
the change in the number of shifts and stated that Lockett had been
selected as one of the dischargees. Lockett objected to signing certain
papers in connection with the discharge pursuant to Haggard's re-
quest and asked Haggard under whose orders she was making the dis-
charge. Haggard replied, "I can't talk to you about that, I have my
orders." Lockett inquired why she was being discharged while the
respondent was still hiring new employees and Haggard replied, "I
don't know. It's just the orders I have." Haggard asked Lockett
if she was satisfied with her work. Lockett replied that she was.
Haggard then stated, "You would be more satisfied with the union"
in the plant, whereupon Lockett replied that, as far as wages and
hours were concerned, she would. Haggard then said, "Well, there
has never been any union here and there never will be." Lockett was
required to leave the plant immediately upon the conclusion of her
conference with Haggard notwithstanding the fact that the shift was
only about half completed.
Haggard denied that she had anything to do with discharging
Lockett. She testified that she may have talked to Lockett but that
Bates handled the discharge. We, like the Trial Examiner, credit
Lockett's testimony and find that Haggard discharged Lockett and
that, at the time of the discharge, Haggard made the statements
related by Lockett.
STEWART WARNER CORPORATION 607
Three or four days after Lockett was discharged she returned to
the plant to obtain the birth certificate she had submitted when she
was hired. On this occasion Lockett told Bates that she had been
discharged and desired the return of her birth certificate. According
to Lockett, some discussion then ensued between her and Bates as to
whether Lockett had been discharged or merely laid off. Lockett
insisted it was a discharge and told Bates he ought to know why she
considered it a discharge. Lockett testified that Bates replied, "Well,
it certainly wasn't over a union." Bates did not contradict Lockett's
testimony in This regard. He testified that he did not recall any con-
versation with Lockett concerning her birth certificate and that he
did not recall telling her that her discharge was not because of her
union activities. We, like the Trial Examiner, credit Lockett's
testimony, and find that Bates made the statements attributed to him.
Bates testified that during the morning of March 11, Lockett came
to his office, expressed her dissatisfaction with working conditions in
the plant, and said that she did not care to work under such condi-
tions. Lockett denied going to Bates' office on March 11 and that
she made the statement as claimed by Bates. Like the Trial Examiner,
we credit her denial.
The only evidence tending to show that Lockett was incompetent
is Bates' vague and general assertion that Lockett had had very little
previous experience in the type of work that she was doing for the
respondent and that she "seemed to be" inefficient. He related no
facts in support of his conclusions. According to Lockett's credible
testimony, she never received any complaints about the quality of her
work, but she had, on the contrary, been complimented by an inspector
from the respondent's Chicago plant, and at the time of her discharge
was offered a letter of recommendation by Ed Oden, her immediate
superior, if she desired to obtain a job as an inspector in some other
plant. WTe, like the Trial Examiner, credit Lockett's testimony in this
regard.
The respondent endeavored to show that Lockett was guilty of
excessive absenteeism. Her labor analysis card, kept by the respond-
ent in the normal course of its business, shows that from the week
ending January 5, 1943, to the date of her discharge, Lockett was ab-
sent about 10 days and worked less than 8 hours on 9 other days.
There is no evidence of her absenteeism prior to January 5. Lockett
testified, without contradiction, that she received no complaints about
absenteeism. As in the case of Roberts, this evidence is of little if
any probative value since there is no showing that the absences were
unexcused or that they were excessive when tested by the absentee
records of other employees or by the expectancy of absenteeism at the
respondent's plant at the time in question.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no evidence that Lockett was ever insubordinate. She
testified that she never had been, and Bates testified that he could
not recall whether she had been insubordinate.
We find, as did the Trial Examiner, that the respondent's claim
that Lockett was selected for discharge because of incompetence and
insubordination is not supported by the evidence.
Conclusions
Upon the facts set forth above and upon the entire record it is
clear that Weller, Cline, Roberts, and Lockett were selected for dis-
charge because of their membership in and activity on behalf of the
Union." The respondent was fully aware of the union activity of
its employees. Organizer Robb had informed Plant Manager Dunn
on March 4, 1943, of the Union's organizational activity, much of
which was thereafter carried on in and about the plant. On March
8, Bates received a copy of the Union's leaflet, which was being dis-
tributed in front of the plant and which announced the granting
of a charter to the Union. This leaflet engendered considerable
union enthusiasm among the employees, which was noticeable in their
discussions the following clay. Weller, vice president of the Union,
kept a supply of membership cards on hand in the plant, a number
of which he turned over to Cline in the presence of Foreman Gilbert.
Cline, in turn, distributed cards to other solicitors and successfully
canvassed the plant for members. Roberts' open advocacy of the
Union was well known to her fellow employees. Bates saw her
obtain the signature of Lockett to a union membership card just a
few hours before the discharges began. It is significant that the
discharges of these energetic union adherents followed immediately
after the union meeting of March 10 of which the respondent's fore-
men had knowledge. Also significant is the summary and precipitate
manner in which the dismissals were effected. Cline, Roberts, and
Lockett were discharged in the middle of their shifts and sent home
without being permitted to finish their work. This treatment, the
respondent's attorney admitted in his oral argument before the Board,
was contrary to the respondent's policy and normal procedure.
Moreover, the respondent shifted its position with respect to the
reasons assigned for the discharges. At the time of the discharges,
Weller, Cline, and Lockett were told that they were "unhappy" or
n Thee a is no mei it to the respondent's contention that any discriminatory motive is
rebutted by the fact that only 5 discharges out of a total of 67 were alleged to have been
discriminatory. Moreover, the record shows that other employees, both members of this
Union and of another union, claimed that their discharges were discriminatory ; some of
them did not desire to press their claims for personal reasons, while others had filed charges
through their respective unions.
STEWART WARNER CORPORATION 609
``dissatisfied "; while Roberts was questioned about the "unrest" in
the plant and told to go to Curtiss Wright's if she wanted to join a
union. - However, in its answer to the Board 's complaint , the re-
spondent alleged that the above-mentioned employees were dis-
charged for incompetency and insubordination, allegations which we
have found unsupported by the evidence. At the hearing before the
Trial Examiner, Bates testified that, in selecting the employees for
discharge, the respondent considered efficiency, dependability, co-
operation, satisfaction with their duties, and seniority. The evi-
dence, however, does not show that these employees were deficient in
these respects. That the respondent did not rely on such standards
in the case of these four employees is shown by the fact (1) that the
respondent's counsel admitted at the oral argument before the Board
that the respondent had no objection to Weller as a workman; (2)
that Weller's 3 years seniority vas ignored; (3) that Bates told Cline
at the time of his discharge that his work was satisfactory and that
the fact that his production record was higher than the set rate could
not be considered; and (4) that Roberts was informed by Bates
shortly before her discharge that there was nothing wrong with her
work.
When the foregoing factors are considered in the light of the
respondent's statements and conduct at the time of the discharges and
shortly thereafter, the real motive for their selection becomes apparent.
Thus, when Cline accused Bates of discriminating against him, Bates
implied that as a lawyer lie was capable of effecting a discharge with-
out revealing his discriminatory purpose. Bates then stated that the
respondent would run its plant "without any outside help, organized
or unorganized." While agreeing to talk to anyone who called him
about Cline's work, Bates refused to give him the requested letter of
reference because "in your particular case there might be something
of a very confidential nature that I can't put in writing." Roberts was
first questioned about the "unrest" among the employees and was later
discharged with the remark that, "we never had a union here, by God,
we never will have. If you want to join a union, you better go to Cur-
tiss Wright's, they have a good union there." The respondent gave no
explanation for its refusal to rehire Roberts when she was later sent
back by the United States Employment Service, which regularly fur-
nished the respondent with its employees. In response to Haggard's
question, Lockett admitted that she would be more satisfied with the
union in the plant; whereupon Haggard replied , "Well , there has
never been a union here and there never will be." Shortly thereafter
when Lockett returned to get her birth certificate, Bates made the
unsolicited assertion that Lockett's discharge "certainly wasn't over
a union."
575129-44-vol 55-40
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, we find that the "dissatisfaction," "unhappi-
ness.," "unrest," and "confidential" things over which the respondent
was concerned had reference to the Union and the organizational ac-
tivities of the employees. We find further that the respondent se-
lected for discharge the four employees in question because of their
union membership and activities.
The respondent contends that any discriminatory motive is re-
butted by the fact that the Union's temporary president and some of
its other members were retained after the March discharges and by
the fact that many employees, including Cline, were hired with knowl-
edge that they were members of one union or another. We find no
merit in these assertions. Clearly, a complete house cleaning of union
members and supporters is not essential to a finding that some em-
ployees have been discriminated against. In support of the other as-
sertion, the respondent introduced in evidence a list, which it claims
to be incomplete, of 26 persons employed by the respondent at the time
of the hearing , whose applications for employment state that they
were members of some union at the time they were hired . There are
about 17 different unions represented by these 26 employees. There
was no threat by any of these organizations to organize the entire
plant. The situation presented by these few scattered and unrelated
union members is in no way analogous to the Union's energetic or-
ganizational campaign which confronted the respondent in March
1943.
Upon the entire record, we find that the respondent discriminated in
regard to the hire and tenure of employment of Burrell Weller, S. Ted
Cline, Nellie Edna Roberts, and Dorothy Lockett, by discharging and
refusing to reinstate them because of their membership and activ-
ities in the Union, and thereby interfered with, restrained, and co-
erced its employees in the exercise of the rights guaranteed in Section 7
of the Act.
C. Interference, restraint, and coercion
The complaint alleged that the respondent questioned its employees
concerning their union affiliations. The respondent uses an applica-
tion for employment which requires the applicant to list all organiza-
tions, "church, lodge, P. T. A., brotherhood, fraternity, club, civic
league, or luncheon clubs, military or others" to which the applicant
belongs.12 Any objective interpretation of this language would require
an applicant to reveal his union affiliations. It is clear from the record
that many applicants so interpreted it and did list the labor organiza-
tion of which they were members. We find that the language above
'^ Bates testified that the answering of this question is entirely voluntary and that appli-
cants are not pressed for this infoi oration He testified , however , that the applicant is
not informed that listing this information is voluntary
STEWART WARNER CORPORATION 611
quoted requires an applicant for employment to reveal his union affili-
ations and that it constitutes a questioning of applicants for employ-
ment concerning their union affiliations.
We find that by the discriminatory discharge of the four above-
named employees, by the anti-union remarks of Bates and Haggard as
found above, and by the questioning of applicants for employment
concerning their union affiliations, the respondent interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
We find that the evidence does not support the allegations of the
complaint that the respondent maintained surveillance of and spied
upon the Union and its members and that it vilified and disparaged
the Union and its leaders and organizers. We shall order that these
allegations of the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the respondent de-
scribed in Section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in and is engaging
in unfair labor practices, we shall order it to cease and desist there-
from and to take certain affirmative action designed to effectuate the
policies of the Act.
We have found that the respondent discriminated in regard to the
hire and tenure of employment of S. Ted Cline, Dorothy Lockett,
Nellie Edna Roberts, and Burrell E. Weller. We shall order that the
respondent offer to Weller, Roberts, and Lockett immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, and
make them whole for any loss of pay they may have suffered by reason
of the discrimination by payment to each of them of a sum of money
equal to the amount which he normally would have earned as wages
from the date of the discrimination against him to the date of the
respondent's offer of reinstatement, less his net earnings 13 during
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 woikmg elsewhere
than for the respondent, which would not have been incurred but for his unlawful d scharge
and the consequent necessity of his seeking emploSment clsewhene See Afattei of Crossett
Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber
and Sawmill Workers Union, Local 2590, 8 N. L. R. B 440. Monies received for work
perfoi coed' upon Fedei al, State, county, municipal, on other work-relief projects shall be
considered as earnings See Republic Steel Corpo?ation v N L R 8.,'311 IT S 7.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said period. Since Cline testified that he did not desire reinstatement,
we shall merely order that the respondent make Cline whole for any
loss of pay he has suffered by reason of the discrimination, by payment
to him of a sum of money equal to the amount which he normally would
have earned as wages from the date of the discrimination against him
to September 30, 1943, the date upon which the hearing herein com-
menced, less his net earnings 14 during said period.
We have found that the applications for employment used by the re-
spondent require applicants for employment to disclose their union
affiliations, if any. We shall order that this question be deleted from
the application or amended to except labor organizations.
We shall further order that the allegation of the complaint that
Virgil O. Scales was discriminatorily discharged, be dismissed without
prejudice, inasmuch as his induction into the armed forces prevented
the adducing of evidence in support of that allegation.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, Local 2937, affiliated with the
Congress of Industrial Organizations, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of S. Ted Cline, Dorothy Lockett, Nellie Edna Roberts, and
Burrell E. Weller, and thereby discouraging membership in United
Steelworkers of America, Local 2937, affiliated with the Congress of
Industrial Organizations, the respondent has engaged in and is en-
gaging in unfair labor practices, within the meaning of Section 8 (3)
of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not engaged in surveillance and spying upon
the Union and its members or in vilifying and disparaging the Union,
its leaders and organizers, in violation of Section 8 (1) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
14 See footnote 13, supra.
STEWART WARNER CORPORATION 613
the National Labor Relations Board hereby orders that the respondent,
Stewart Warner Corporation, Indianapolis, Indiana, and its officers,
agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers of America,
Local 2937, affiliated with the Congress of Industrial Organizations,
or any other labor organization of its employees, by discharging or re-
fusing to reinstate any of its employees, or by discriminating in any
other manner in regard to their hire or tenure of employment or any
terms or conditions of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights 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 policies of the Act :
(a) Offer Dorothy Lockett, Nellie Edna Roberts, and Burrell E.
Weller immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority and
other rights and privileges;
(b) Make whole Dorothy Lockett, Nellie Edna Roberts, and Burrell
E. Weller for any loss of pay they 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 normally would have
earned as wages from the date of the discrimination against him to
the date of the respondent's offer of reinstatement, less his net earnings
during such period;
(c) Make whole S. Ted Cline for any loss of pay he has suffered
by reason of the respondent's discrimination against him, by payment
to him of a sum of money equal to the amount which he normally
would have earned as wages from the date of the discrimination against
him to September 30, 1943, less his net earnings during such period;
(d) Delete from its applications for employment the question re-
quiring the disclosure of union affiliation or amend the question so
as to except the listing of labor organization affiliations;
(e) Post immediately in conspicious places in its plant in Indian-
apolis, Indiana, and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees stat-
ing: (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a) and (b)
of this Order; (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a), (b), (c), and (d) of this Order; and
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) that' the respondent's employees are free to become and remain
members of United Steelworkers of America, Local 2937, affiliated
with the Congress of Industrial Organizations, or any other labor
organization, and that the respondent will not discriminate against
any employee because of his membership or activity in that or any
other labor organization ;
(f) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps the re-
spondent has taken to comply herewith.
AND IT IS FTTRTHER ORDERED that the complaint, insofar as it alleges
that the respondent violated Section 8 (1) of the Act by engaging in
surveillance of the Union and its members, be, and it hereby is,
dismissed.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent violated Section 8 (3) of the Act with respect to
Virgil O. Scales, be, and it hereby is, dismissed without prejudice.