Faultless Caster Corp.

In the Matter of FAULTLESS CASTER CoIt'oRATIoN and UNITED ELECTRI- CAL, RADIO AND MACHINE WORKERS OF AMERICA, AFFILIATED WITH THE C. 1. 0. Case No. C-2025.-Decided October 30, 19.12 Jurisdiction: furniture hardware industry. - Unfair Labor Practices Interference, Restraint, and Coercion: activities of respondent's officials and supervisory employees in threatening to close the plant rather than deal with or recognize the union, warning and advising employees not to join the union, threatening to discharge employees who joined the union, declaring in effect that the union could be of no economic advantage to the employees, and refer- ring to the union in derogatory terms. - Company-Dominated Union: formed in the midst of respondent's anti-union declarations for the express purpose of "keeping the `outside' union out" and stimulating its existence by continuing its campaign of hostility towards the "outside" union-support : activities of representatives of management who urged employees to renounce the "outside" union and join the "inside" union ; secured an employee's application card for the "inside" union on threat of discharge and collected his dues ; and requested an employee to persuade prospective employees to join the "inside" union-threats by supervisory employee that anyone who did not join the "inside" organization would not work for him-demotion of an employee because of his interest in and activi- ties on behalf of the "outside" union. Discrimination: repeated demotions of an employee who was an active member of the "outside" union, of which respondent had knowledge, because of his union interest and activities ; reinstatement and subsequent demotion held to have been part of respondent's design to discourage such employee's interest in "outside" organization or activities. Remedial Orders : disestablishment of dominated organization ordered; demoted employee awarded back pay and-ordered reinstated to the position which he held prior to his first demotion. Mr. Robert D. Malarney, for the Board. Mr. Isidor Kahn, of Evansville, Ind., for the respondent. Mr. William Sentner, of St. Louis, Mo., for the Union. Mr. Paul H: Schmlidt, of Evansville, Ind., for the Independent. Mr. Herman J. DeKoven, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Electrical, Radio and Machine Workers of America, Local No. 1002, affiliated 45 N. L. R. B., No. 31. - - - 146 FAULTLESS CASTER CORPORATION 147 with the C. I. 0., herein called the Union, the National Labor Rela- tions Board, herein called the Board, by the Regional Director for the Eleventh Region (Indianapolis, Indiana), issued its complaint, dated September 18, 1941 , against Faultless Caster Corporation, Evansville, Indiana, herein called the respondent , alleging that the repondent had engaged in and was engaging in unfair labor practices affecting commerce , within the meaning of Section 8 (1), (2), 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, together with notice of hearing thereon, were duly served upon the respondent, the Union , and the Independent Hardware Workers Union, herein called the Independent. In respect to the unfair labor practices, the complaint alleged in substance that the respondent : (1) dominated and interfered with the formation and administration of, and supported the Independent; (2) transferred Bert Hudson , an employee, from his position as a set-up man to less desirable work, and thereafter refused -to restore him to his former position, because of his membership and activities in the Union; , (3) interfered with the self-organization of its employees and discouraged membership in the Union by threatening to close its plant should demands of "a labor organization" be too extreme, and by referring to its employees who had joined the Union as communists ; and (4 ) by the foregoing acts interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent filed an answer in which it denied that it had engaged in any unfair labor practices. - Pursuant to notice , a hearing was held in Evansville , Indiana, from October 20 to 23, 1941 , inclusive, before Horace A. Ruckel, the Trial Examiner duly designated by the Chief Trial Examiner: At the hearing, the Trial Examiner granted a motion by the Independent to intervene, but limited its participation in the proceeding to matters related to the allegations in the complaint of unfair labor practices within the meaning of Section 8 (2) of the Act. - The Independent thereupon filed an answer to the complaint in' which it denied that it was company-dominated. The Board, the respondent, the Union, and the Independent " were represented and participated in the hear- ing. 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 opening of the hearing, the respondent moved to dismiss the complaint on the ground that it was not prop- erly issued. The Trial Examiner denied the motion. During the hearing, counsel for" the Board moved to strike certain portions of the Independent's answer, which . motion was granted by the Trial Examiner. During the hearing, the respondent objected to the ad- 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mission in evidence of an exhibit identified as Board Exhibit No. 11. The Trial Examiner reserved ruling thereon but sustained the objection in his Intermediate Report. At the close of the Board's case, the respondent moved to dismiss the complaint in its entirety, and the Independent moved to dismiss certain allegations of the complaint. The Trial Examiner denied these motions. At the close of the hearing, counsel for the Board moved that the pleadings be conformed to the proof in regard to minor matters such as names and dates. This motion was granted over the respondent's objection. Various rulings were made by the Trial Examiner during the course of the hearing on other motions and objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner, and finds that no prejudicial errors were committed. The rulings are hereby affirmed. After the hearing, the respondent and the Inde- pendent filed briefs with the Trial Examiner. On December 3, 1941, the Trial Examiner issued 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 respondent cease and desist therefrom and take certain affirmative action, including the payment of wages lost by an employee dis- criminated against, to effectuate the policies-of the Act. He fur-, ther recommended that the complaint be dismissed insofar as it al- leged that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. Thereafter, the respondent filed exceptions to the Intermediate Re- port and a brief. The Board has considered the briefs filed by the respondent and the Independent and the respondent's exceptions, and finds the ex- ceptions to be without merit insofar as they are inconsistent with the findings, conclusions, and order set forth below. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Faultless Caster Corporation is an Indiana corporation having its principal office and place of business in Evansville, Indiana, where, it is engaged in the manufacture of casters and furniture hardware. During 1940, the respondent purchased raw materials, valued in excess of $50,000, approximately 75 percent of which was shipped from points outside the State of Indiana. During the' same year, the respondent gold finished-products, valued in excess- of $100,000, FAULTLESS 'CASTEiR CORPORATION - 149 approximately 75 percent of which was shipped to points outside the State of Indiana . During the first 9 months of 1941 , approxi- mately the same proportion of interstate and intrastate shipments obtained . The respondent admits that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED United Electrical, Radio and Machine Workers of America, Local No. 1002, is a labor organization affiliated with the Congress of In- dustrial Organizations and admits to membership employees of the respondent. Independent Hardware Workers Union is. an unaffiliated labor organization and admits to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Between 1933, when the American Federation of Labor attempted to organize the respondent's employees, and 1941, there had been no organizational activities at the plant. On or about January 18, 1941, the Union began an organizational drive among the respondent's, employees. Shortly thereafter, some of the employees began to wear union buttons while at work, and union circulars were distributed at the plant gates. Walter Noelting, vice president of the respond- ent and plant manager, admitted receiving copies of such circulars from the gateman. On January 27, 1941, the Union advised the respondent by letter that it represented a majority of the production and maintenance employees and requested to meet with the re- spondent for the purposes of collective bargaining. The respondent did not reply to this letter. The attempt of the Union to organize met with vigorous opposi- tion by the respondent. On or about January 24, 1941, meetings of employees were called at the plant by the respondent and addressed by Noelting. After stating that he could not understand why there was so much dissatisfaction among the employees in, view of the fact that they were working regularly, and that if they had any griev- ances they should take them up with the supervisors'and the re- spondent's officials, Notating told the assembled employees of their rights with regard to joining a labor organization of their own choosing 1 and then stated that the respondent could not pay higher wages and would close the plant if "pressed too hard" by any labor organization. I As hereinafter found (see Section III, B , infra), Noelting told the employees that they could join any organization , whether it be an "inside" or an "outside" union. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - Carl Sunderman , who was employed in Department 4, testified that in the latter part of January 1941 , Charles Wright, foreman in charge of Department 4, as well as other departments , told Sunder- man that "the C. I. O. is a bunch of communists and crooks, and it is poison. You better steer clear of it." Sunderman further testi- fied that in the middle of February 1941, Wright, referring to the union button which Sunderman was wearing, said to him : "I see you no longer want me to represent you." According to the testi- mony of August Kohl , another employee in Department 4, in the latter part of January 1941, Wright stated to Kohl , who was a steward for the Union and was wearing a steward's button at the time, that "this business that is going around here . . . was poison," that Kohl "had better lay off ," and that "the management .. . would close their doors and go to Florida, and what would you and I do." Thornton Sallee, who was also employed in Department 4, testified that during the first part of February 1941 , Wright re- marked to Sallee, who was a union steward , that he was surprised to see Sallee's name on a union handbill as one of the Union 's stew- ards, and that this was "bad stuff." Wright denied making the fore- going statements attributed to him by Sunderman , Kohl, and Sallee, but admitted asking Sallee if it was Sallee's name which Wright had seen on the aforementioned handbill . We credit, as did the Trial Examiner, the testimony of Sunderman , Kohl, and Sallee and find that Wright made the statements in question substantially as testified to by them. -Shirley Scraper, a union steward , testified , without contradiction, that during the latter part of January 1941, Kenneth Highland, under whom he was working, told him that the respondent would not "stand for" or negotiate with the Union and that it would move its plant to Florida before it would accept the Union . Highland was not called as a witness . We credit, as did the Trial Examiner, the testimony of Scraper and find that Highland made, in substance, the foregoing statements. According to the uncontradicted testimony of Orville Peters, on February 15, 1941, Highland, under whom Peters was then working, said to him : "I guess you - know all the boys that belong to the C. I. O. will eventually get weeded out." Peters also testified, with- out contradiction, that on March 31 , 1941, while he was wearing a union button , Merrill Metz, under whom he was then working, asked him if he was not ashamed of himself for wearing such button. Metz was not called as a witness. We find that Peters is a' credible witness and that Highland and Metz made the foregoing statements substantially as testified to by Peters. The respondent contends that Highland and Metz are not super- visory employees. The record discloses that they direct and supervise FAULTLESS CASTER CORPORATION - 151 the work 'of. other employees; that they lay off employees after consulting with the foremen; that requests fot wage increases are made of Highland and Metz, who in turn present such requests to their respective foremen, and that the latter consult with Highland and Metz before acting on such requests; that the employees working under Highland and Metz regard them as supervisors; and that Highland and Metz were among the addressees on an inter-office communication concerning vacations, dated January 24, 1941, which was sent by Harvey Davidson, the plant superintendent, to super- visory employees who were instructed to relay the information to the other employees. Upon the basis of- the entire record, we find, as did the Trial Examiner, that Highland 2 and Metz are supervisory employees. According to the uncontradicted testimony of Eunice Market, a union steward, Raleigh' Spivey, her foreman, told her, in the early part of March 1941, that she was wasting her time with the Union because the respondent would never recognize the Union and would close the plant before doing so. Market further testified, without contradiction, that in the latter part of March 1941, Spivey told her that the Union was losing all its members and that it would "have to get busy or we will beat you after all." Spivey was not called as it witness. The Trial Examiner found Market to be a credible witness, as do we. We find that Spivey made the foregoing state- ments substantially as testified to by Market. On April 1, 1941, Superintendent Davidson handed copies of a local newspaper of that date to several employees who were active members of the Union and called their attention to an article which stated that Congressman Martin Dies had charged several repre- sentatives of the Union with being communists. Two of these employees, Harley Hollingsworth and August Kohl, testified, with- out contradiction, that when Davidson handed the article' to them, he told them to read it and said that it was "good news" and "good stuff." Davidson, who was called as a witness, did not testify with regard to this matter. We credit the testimony of Hollingsworth and Kohl and find that Davidson made the foregoing -statements substantially as testified to by them. Reuben Ward testified, without contradiction, that on or' about July 16, 1941, Ben Barth, foreman in charge of the night shift under whom Ward was then working as a die setter, referring to the union button which Ward was wearing, said to him : "I thought you pulled those off when you got your die setter's job." Barth was - 2 The Trial Examiner, after discussing Highland's supervisory status, concludes with the finding that "Wright" is a minor supervisory employee. It is apparent that his ref- erence in his concluding finding to "Wright" rather than "Highland" was inadvertent. It is admitted by all parties that Wright is a foreman. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not called as a witness. We credit'Ward's testimony and find that Barth made, in substance, the foregoing statement. According to the uncontradicted testimony of Hazel Nelson, on numerous occasions during August 1941, Barth, under whom she was then working, engaged her in conversations about the Union, in which she was active, during the course of which he stated many times that she might as well drop her activities on behalf of the Union because the Union could not improve the prevailing working conditions. We -credit Nelson's testimony and find 'that Barth made the foregoing state- ments to Nelson substantially as testified to by her.8 We find that by the above-described statements and activities of its officials and supervisory employees, including the threat to close the plant rather than deal with or recognize the Union, warning and advising employees not to join the Union, threatening to discharge employees who. joined the Union, declaring in effect that the Union could be of no economic advantage to the employees, and referring to the Union in derogatory terms, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section,7 of the Act. B. Respondent's domination of, interference with, and support to the Independent Shortly after the initiation by the Union of its organizational campaign among the respondent's employees, Walter Schmidt, an employee, whose brother was the son-in-law of Superintendent Davidson, and who had previously never engaged in union activity, proceeded to organize the Independent. After, discussing with other employees the merits of an unaffiliated organization as against the Union, Schmidt obtained the services of an attorney, who assisted him in the formation of the Independent. At approximately the same time that Schmidt was thus engaged - in organizing 'the Independent, Noelting, vice president of the respondent and plant manager, told the employees, at meetings called by the respondent, that they had the right to join any organization, whether it be an "inside" or an "outside" union.4 Noelting further stated at these s The Trial Examiner found that in accordance with the undisputed and credible testi- mony of "Eunice Market," Barth made these statements to Market. Nelson, and not Market; testified with respect to such statements , and it is apparent that the Trial Examiner's reference to Market in this regard was inadvertent. 4 A number of employees testified to the effect that Noelting stated at these meetings that the employees had the right to join any organization , whether it be an "inside" or an "outside" union Noelting admitted stating that the employees were free to join any organization but denied using the expression "inside or outside," and the testimony of Superintendent Davidson , Foreman 'Wright, and Walter Schmidt, president of the Inde- pendent, who attended the meetings, is also to the effect that Noelting did not use such expression Upon the basis of the entire record, «e credit the testimony of the afore- mentioned employees that Noelting stated that the employees were free to join an "inside" or an "outside" union, and we so find. FAULTLESS CASTER CORPORATION 153 meetings that the respondent could not pay higher wages and would -close the plant if "pressed too hard" by any labor organization. Also, during the period of the Independent's formation, the respond- ent, as found above, warned and advised employees not to join the Union, referred to the Union in derogatory terms, and threatened to close the plant rather than deal with or recognize the Union. At the first general meeting of the members of the Independent held on February 11, 1941, Schmidt was elected president. Schmidt 'addressed the assembled employees and stated that he realized that the officers of the Independent were too closely related to and "hooked up" with management, but that "it was the best they could do at the present time, the job had to be done and they couldn't get anyone else to do it, and it had to be done in order to keep the C. I. 0. out," and that "after the Independent got to going good, they would elect new officers." Schmidt, while admitting making these statements, testified that he made-them sarcastically and because of the admitted presence in the audience of several members of the Union. We find, as did the Trial Examiner, that Schmidt spoke seriously and that in stating that the officers of the Independent were too closely related to management, he had reference to the fact that his brother was Superintendent Davidson's son-in-law, and that those present so understood it. Schmidt has served as president of the Independent throughout the period of his employment by the respondent. Active support was rendered the Independent by the respondent through the activities of supervisory employees. Thus, according to the uncontradicted testimony of William, Gossett, on or about March 20,1941, Merrill Metz,' under whom Gossett was working, told Gossett, who had become a member of the Union, that Gossett was on the "wrong side of the fence" and would have to "change over" and join the Independent or else Metz 'would have to lay him off. Gossett further testified that Metz secured his signature to a membership 'application card for the Independent, collected 1 month's dues from him, and gave him a receipt_ therefor. This receipt was signed by .Metz as "Authorized Representative" of the Independent. As already indicated, Metz was not called as a witness. In its motion to dismiss the complaint, the Independent admitted that Metz is one of its mem- bers. We credit Gossett's testimony and find, as did the Trial Exam- iner, that Metz made the foregoing statements and secured Gossett's membership in the Independent substantially as testified to by Gos- sett. Gossett further testified, without contradiction, that later the same day (March 20), Metz told him that he was planning "to bring a new man in" and that he wanted Gossett to talk to the new man "and As found above (Section III, A), Metz is a supervisory employee whose activities are attributable to the respondent. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD get him on the right side with us." We credit Gossett's testimony .and find that Metz made the last mentioned statements to him. We further find that, in view of Metz's earlier statements and activities that same day, discussed above, and his membership in the Independ- ent, by "the right side with us " Metz meant the Independent and that Gossett so understood it. Further pro-Independent activity is at- tributed to Metz by Orville Peters. Peters testified , without contra- diction, that sometime between March 26 and 31 , 1941, during which period he worked under Metz's supervision, he overheard a conversa= tion at the plant between Metz and several employees , in which Metz stated that anyone who did not join the "company union" would not work for him. We credit Peters' testimony and find that Metz made the foregoing statement substantially as testified to by Peters. We further find, on the basis of the entire record, that by "company union" Metz meant the Independent and that the employees so understood it. Eunice Market, a steward of the Union , testified , without contra- diction, that sometime in March 1941, Raleigh Spivey , her foreman, told her that she might as well join up with the "other side," inasmuch as she and two other employees whom Spivey named "are the only three left in the union now." As indicated above, Spivey was not called as a witness. We credit Market's testimony and find, as did the Trial Examiner , that Foreman Spivey made the foregoing state- ment as testified to by her. Upon the basis of the entire record, we further find, as did the Trial Examiner, that by "the other side" Spivey meant the Independent , and that Market so understood it. On or about May 7, 1 941, Lester Vowels, who was president of the Independent from March - to August 1941 , while Schmidt was not working for the respondent , circulated during working hours in Department No. 1, which was composed of approximately 75 em- ployees, a petition requesting the respondent to grant a 2-week vacation to employees, in place of the ' 1 -week vacation previously announced- by the respondent. The petition was signed -by members of the Independent and of the Union, and by unaffiliated employees. Within 2 days after the circulation of this petition, a group of from 6 to 8 employees , all of whom were members of the Independent, conferred with Noelting and asked him- to increase • the vacation period. They told him that the afore-mentioned petition had been circulated by Vowels among the employees, but that they could not present it to Noelting because Vowels , who had possession of it, was not available. Approximately 1 week later, the respondent posted a notice announcing a 2 weeks' vacation policy. Thereafter, the Inde- pendent publicized the fact that it had been responsible for and secured the vacation increase . On May 21 and July 21, 1941, the FAULTLESS CASTER CORPORATION 155 Union wrote the respondent requesting various improvements in working conditions; there is no showing that such requests were acted upon. The constitution and bylaws of the Independent, which were adopted by its membership on April 17, 1941, made eligible for mem- bership-any employee not having supervisory or discipliiiary author- ity and provided, among other things, for regular monthly meetings, the collection of dues, and the handling of grievances. The Inde- pendent held regular meeetings, was active in soliciting members, col- lected dues and initiation fees, and distributed circulars violently denouncing the Union. Except for the matter of the vacation in- crease, discussed above, the record is barren of any other evidence showing activity by the Independent as a labor organization, and it affirmatively appears that the Independent never presented any griev- ances to the respondent's The Trial Examiner, after finding substantially the same facts, as are outlined above, concluded that while the respondent encouraged the Independent and interfered with it, the interference was not substantial, and recommended a dismissal of the allegations of the complaint that the respondent dominated and interfered with the Independent. We are unable to agree with this conclusion. - As found above, the respondent, through statements and activities of various officials and supervisory employees, vigorously opposed- the .Union. In addition, as hereinafter found,' the respondent demoted an employee because of his interest in and activities on behalf of the Union. The Independent was engendered, for the expressed pur- pose of "keeping the C. I. 0. out," in the midst of the respondent's anti-union declarations which gave substantial impetus to the Inde- pendent's formation. Likewise the Independent's existence since its creation has been facilitated and stimulated by the respondent's con- tinued campaign of expressed hostility towards the Union. The re- spondent's antagonism towards the Union is in marked contrast to its declared preference for and outright solicitation on behalf of the Independent. Thus, one of the respondent's foremen urged an em- ployee to leave the Union and join the Independent. Another of the respondent's supervisors became a member of the Independent ; ex- horted an employee to drop his union membership and join the Inde- pendent, secured his application card for the Independent on threat of discharge, and collected his dues; requested that employee to per- suade a prospective employee to join the Independent; and stated to e On February 5, 1941 , the Independent advised the respondent by letter that it repre- sented a substantial number of the production employees and "in any collective bargaining .. . should be recognized and designated as the exclusive . . . bargaining agent" for such employees The respondent did not reply to this letter. ' See Section III, C, infra. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other employees that anyone who did not join the Independent would not work for him. Under such employer domination , interference, and support, it is plain that the Independent has constituted a con- tinuing obstacle to genuine self-organization among the employees. We find that the respondent has dominated and interfered with the administration of and contributed support to the Independent , and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The respondent's discrimination against Hudson The complaint alleges that the respondent transferred Bert Hud- son from his position as set-up man to less desirable work because of his union membership and activities . The respondent contends that Hudson's transfers were due to his inability and failure to learn certain set-up work assigned to him. Bert Hudson was first employed by the respondent in February 1935 as an assistant set-up man 'in. Department 1. In 1937 he be- came a set-up man in that department for a battery of from 10 to 14 operators- on drill and tap machines , herein called "group A." His duties consisted of setting up dies and preparing the machines for the operators, and he was responsible for the quality and quan- tity of their work. During the latter part of 1940, the respondent began to use cast brass in place of plastics , and this resulted in a diminution in the work of group A and an expansion of work among the operators of the hand screw machines, herein called "group B." The number of operators in group A having dwindled to from 3 to 5, the respondent, on about November 1, 1940, consolidated group A with group B. The set-up work in group B is different from that in group A. Hudson testified that when this consolidation took place, he and one Cullen, the set-up man in group B, were merely told to work together and share equally the bonus from the. earnings of the two groups; that thereafter Hudson continued to do set-up work for group A and to serve as an operator in that group when there was no set-up work to be done ; and that, while he was given the "privi- lege" of learning the set-up work in group B, he was not instructed to learn it, did not learn it, and never did any work in group B. Noelting, vice -president of the respondent and factory manager, tes- tified that the consolidation was effected because the work in group A was diminishing, and the work in group B was increasing and required 2 set-up men ; that instead of hiring another set -up man for group B, the respondent decided to consolidate the 2 groups and have Hudson assist Cullen in setting up for group B when Hudson was not busy setting up for group A; and that Hudson was instructed by FAULTLESS 'CASTE'R CORPORATION 157 the respondent to learn the set-up work in group B, that Cullen at- tempted to teach Hudson such set-up work, and that Hudson had tried but failed to learn that work. According to Hudson's uncontradicted testimony, in the latter part of December 1940, while discussing the Christmas bonus with Raleigh Spivey, his foreman, Hudson stated that he thought a union was needed in the respondent's plant and that he "would get to the front" and "get something started in the line of getting a union there," and that Spivey replied : "I wouldn't do it if I was you. It will just be hard on you, if you do." As already indicated, Spivey was not called as a witness. We credit Hudson's testimony and find, as did the Trial Examiner, that the foregoing conversation took place as (testified to by Hudson. On or about January 13, 1941, Hudson was removed as a set-up man and was transferred to the truck caster assembly department where he remained until the first part of February 1941. His duties in this department consisted of assembling truck casters, which work, according to Hudson's uncontradicted testimony, did not require any ,degree of skill. His rate of pay was lowered from 58 cents an hour, which he received as a set-up man, to 45 cents an hour. Hudson testified, without contradiction, that the only reason Foreman Spivey gave him for the transfer was that the respondent could no longer "afford to pay a set-up man on [Hudson's] job." Noelting testified that Hudson was transferred because he failed or refused to learn the set-up work in group B, and that prior to the transfer, Cullen, Spivey, and Superintendent Davidson advised Noelting that they were not satisfied with the progress Hudson had been making in learning the set-up work in group B, and that on one occasion, apparently sometime between November 1940, the date of the con- solidation of the two groups, and Hudson's transfer, Noelting told Hudson that he was not "proving out here," that he was not "get- ting on to the work," and that the respondent would have to find "something else" for him. Hudson admitted that somebody repre- senting management spoke to him just before the first of the year (1941) about the necessity of "shifting" him because, of "lack of work," but denied that there were complaints about his work during the 6 months preceding January 1, 1941. Hudson did not testify as to whether there were such complaints after January 1, 1941. As hereinafter indicated, we do not credit the afore-mentioned testimony of Noelting. During the first part of February 1941, Hudson was reinstated to his former position as set-up man in Department 1 at a wage of 63 cents an hour, 5 cents an hour more than he was receiving on January 15 before the transfer. Noelting testified that the reason for Hudson's 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstatement was that there was- need for a set-up man and that the respondent wished to and did give Hudson another opportunity to ]earn the set-up work in group B. Hudson testified that when he was reinstated he was told by Foreman Spivey to "go back to setting up like you did when you left here before"; that he was not told to learn, and did not learn, the set-up work in group B and was not taught such work, though he was given the "privilege" of learning it; and that he did not work in group B, but merely set up for group A, which had about three operators, and spent the remainder of his time as an operator in group -A. After his reinstatement, Hudson worked in Department 1 for from 3 to 6 weeks, after which he was again transferred, this time, to work as a helper in the heat treating department at a wage of 50 cents an hour. According to Hudson's uncontradicted testimony, his duties in the latter department were those of a "laborer" requiring no degree of skill. When he was transferred this second time, Fore- man Spivey, according to Hudson's uncontroverted testimony, told him that the respondent "couldn't keep a man on that job, setting up." Noelting testified that the reason for Hudson's second transfer was that he again failed to learn the set-up work in group B and shirked it; that -Cullen, Spivey, and Davidson again told Noelting that Hudson's work was not satisfactory ; that Noelting and Spivey had about six conversations with Hudson after his reinstatement in which they told him that he was not "getting on"; and that Hudson himself had indicated that he did not like "the work," did not wish "to stay there longer," and asked Noelting at about the time of the second transfer out of the set-up position to find other work for him of a- permanent nature. As indicated below, we do not credit Noelt- ing's testimony. After his second transfer, Hudson was employed in the heat treating department-up to the date of the hearing, with the exception of another short turn in the truck caster assembly depart- ment, a brief period•as a sweeper, and several extensive lay-offs." Hudson joined the Union on January 27, 1941. Shortly thereafter he was elected a union -steward. Noelting admitted seeing Hudson's, name as a union steward on a circular distributed by the Union in the first part of February 1941. ,At about this time, Hudson was 8 According to Hudson's uncontradlcted testimony, since his first transfer out of the, set-up pbsition, he has been laid off for appro%fmately 2 weeks in January and February, 2 weeks in march, 1 or 2 weeks in April, and from approximately October 13 to the date of the hearing. A handbook for its employees published by the respondent- provides that seniority is to be considered in determining lay-offs. According to Hudson's uncontroverted' testimony, one of the employees in the heat treating department, where Hudson has been principally employed since his second transfer, who has less seniority than he, has been,- kept on almost all the time that Hudson has-been laid off. 'Hudson further testified, without contradiction, that prior to his first demotion lie had never been laid off-for' any length of time. - - FAULTLESS CASTER CORPORATION 159 actively engaged in distributing application cards for the Union among the employees. According to Hudson's uncontradicted testi- mony, in February 1941, shortly after he was reinstated, Superintend- ent Davidson asked him how the Uniolr and the Independent were getting along. Hudson replied : "Well, I am 100 percent C. I. O. myself." Davidson then said: "Oh, I realize that. I saw your name on the handbill to that effect." Hudson went on to say : ". . we have got the biggest majority, got practically all the plant. The Independent Union hasn't got anyone ..." Hudson further testi- fied, without contradiction, that later the same day, Foreman Spivey approached him and asked him why he took the "attitude" he did toward the respondent and why he had joined the Union; that Spivey further stated that if the Union "gets in," the employees would lose many of the benefits which they enjoyed, and that the respondent could not pay high wages and would close the plant before it would lose money; and that the conversation ended with Hudson's declaring that he intended to "stick" with the Union. Davidson, who was called as a witness, did-not testify with regard to the foregoing con- versation, and, as already indicated, Spivey was not called as a wit- ness. We credit Hudson's testimony and find, as did the Trial Examiner, that the foregoing conversations with Davidson and Spivey took place as `testified to by Hudson. We find, as did the Trial Examiner, that the respondent knew, at all times material to the decision herein, that Hudson was interested in and was an active member of the Union. Upon the basis of the entire'record, we find, as did the Trial Exam- iner, that the motivating cause for -Hudson's demotions was his interest in the unionization of the respondent's employees and his membership in and activities on behalf of the Union. We do not find it necessary to determine whether, upon the consolidation of groups A and B and upon his reinstatement, Hudson was unequivo- cally told by the respondent that he must learn group B set-up work, for, assuming that ' Hudson was so instructed, we do not credit the respondent's contention that his failure to learn such work was responsible for his transfers. Nor, upon the entire record, do we find that Hudson was reprimanded for not learning group B-set-up work or that he was told that he was being transferred for failure to learn such work .9 We believe that but for his interest in the unionization of the respondent's employees, Hudson, who was an old and trusted employee and had been promoted by the respondent to the position ° Even if we were to credit Noelting's testimony that Hudson was reproached for not "getting on to the work" and other testimony of Noelting with regard to this matter, which, upon the basis "of the entire record, we do not, his testimony does not establish that Hudson was clearly reprimanded for not learning group B set-up work. 160 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD of set-up man which he held for almost 4 years, would not have been transferred from a position requiring skill and an aptitude for overseeing the work of others, to work of a totally different charac- ter, involving comparatively little, if any, skill, and commanding a substantially smaller wage. In this connection, it is significant that, according to Hudson's uncontradicted testimony, which we credit,. the respondent had never before transferred a set-up man to a less desirable position or to other than set-up work. That the operative reason for Hudson's first demotion was his interest in collective bargaining is manifested by Foreman Spivey's reaction to Hudon's declaration a short time prior to his first transfer that he would "get to the front" and "get something started in the line of getting a union" at the respondent's plant. Spivey warned him against it and stated that it would "just be hard" on him. Hav- ing made known to the respondent his intention to organize the respondent's employees, Hudson thus came to be viewed by the re- spondent as a union protagonist. In domoting Hudson, the respond- ent was simply giving concrete expression to its previously declared attitude toward an employee who professed an intention to organize its plant. That Hudson's alleged inability or failure to learn group B set-up work was not the real cause for his demotion is further evidenced by the respondent's reinstatement of Hudson shortly after his demotion. If, as, the respondent contends, Hudson had clearly demonstrated, over a period of 21/2 months, that he was unable to perform the required set-up work, and that the respondent, therefore, found it necessary to transfer him elsewhere, it seems unlikely that the respondent would have reinstated him to that very same position shortly after the transfer. Further, even if, as the respondent con- tends, the 5-cents-an-hour increase was part of a general wage in- crease among the employees, it seems equally unlikely that the respond- ent would have restored Hudson to a position from which he had only a few weeks prior thereto been demoted for alleged incompe- tence at a 5-cents-an-hour increase over what he had received prior to the demotion. We believe that, under the circumstances , of this case, Hudson's reinstatement was merely part of the respondent's design to discourage his interest in organizational activities by "mak- ing it hard on him," through demotion, long enough to indicate con- cretely the respondent's displeasure with his interest in organizing the employees, and then reinstating him. After the reinstatement, the respondent, through Superintendent Davidson, proceeded to elicit from Hudson an expression of his,views on the Union and the Independent. Hudson declared to Davidson that he was "100 percent C. I. O." Later the same day the respond- ent, through Foreman Spivey, expressed its displeasure with Hud- FAULTLESS CASTER, CORPORATION - 161 son's attitude," rebuked him for having joined the Union, and attempted to discourage his further activities in the Union by urging that the Union could be 'of no economic advantage to -the employees and that,if the Union "gets in" the employees would lose many of the existing benefits. Hudson, however, would not be intimidated and closed the conversation with Foreman Spivey by declaring that he intended' to ."stick" with the Union. It thus became clear to the respondent- that Hudson was adamant and had not yet "learned his lesson," whereupon the respondent, shortly thereafter, again demoted him. The respondent's- demotions of Hudson because of his interest in the unionization of its employees and his membership and activi- ties in the Union was merely one aspect of the respondent's general hostility towards the Union. We find, as did the Trial Examiner, that, by the afore-mentioned demotions of Hudson, the respondent has discriminated against him in regard to the' terms and conditions of 'his employment, thereby discouraging membership in the Union and interfering with, restrain- ing, and coercing its employees in the exercise of the rights guaran- teed in Sect-ion 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES' UPON COMMERCE We find that the activities of the respondent set forth in Section III, above, occurring in connection with the operations of the re- spondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has ^ engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that the respondent dominated and interfered with the administration of and contributed support to the Independent. We find that the effects and consequences of, such domination, inter- ference, and support render the Independent incapable of serving the respondent's employees as a genuine collective bargaining agency, and that recognition of the Independent as the bargaining representa- tive of any of the respondent's employees would constitute an obstacle to the free exercise by the employees of their right to self-organiza- tion and to bargain collectively through representatives of their own choosinc. We shall order the respondent to refrain from recognizing 493508-43-vol 45-11 . 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Independent as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment., or other conditions of employment, and to completely disestablish the Independent. We have found that the respondent discriminated in regard. to the terms and conditions of employment of Bert Hudson. We shall order the respondent to offer Bert Hudson immediate and full rein- statement to the position occupied by him prior to his first demotion, or to a ` substantially equivalent position, without prejudice to his seniority and other rights and privileges, and to snake him whole for any loss of pay he may have suffered by reason of his discriminatory demotions, by payment to him of a sum of money equal to that which he normally would have earned, had he not been demoted,, during the periods between his first demotion and his reinstatement, and his second demotion and the date of the offer of reinstatement, less the. sums received by him from the respondent for other work performed during these, periods. Upon the basis of the foregoing findings of fact and upon the en- tire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Electrical, Radio and Machine Workers of America, Local' No. 1002, affiliated with the Congress of Industrial Organiza- tions, and Independent Hardware Workers Union are labor organi- zations,-within the meaning of Section 2 (5) of the Act. 2. By, dominating and interfering with the administration of, and ,contributing support to, Independent Hardware Workers Union, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the terms.and conditions of em- ployment of Bert Hudson, thereby , discouraging membership in United Electrical,, Radio and Machine Workers of America, Local No. 1002, affiliated with the Congress of Industrial Organizations, th6 `respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting, commerce, within the meaning of Section 2 (6) and (7) of the Act. , FAULTLESS CASTER CORPORATION - 163 ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations, Act, the National Labor Relations Board hereby orders that the respond- ent, Faultless Caster Corporation, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of Inde- pendent Hardware Workers Union, or with the formation or admin- istration of any other labor organization of its employees, and from contributing financial or other support to said labor organization or. any other labor organization of its employees; (b) Discouraging membership in United Electrical, Radio and Machine Workers of America, Local No. 1002, affiliated with the Congress of Industrial Organizations, or any other labor organiza- tion of its employees, by discriminating in regard to the terms, con- ditions, hire, or tenure of employment of any of its employees; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed 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 p9licies of the Act : (a) Refrain from recognizing the Independent Hardware Work- ers Union as the representative of any of its employees for the pur- pose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other con- ditions of employment, and completely disestablish the Independent as such representative; (b) Offer to Bert Hudson immediate and full reinstatement to the position occupied by him prior to his first, demotion, or to a substantially equivalent position, without prejudice to his seniority and other rights and privileges; (c) Make whole Bert Hudson for any loss of pay he may have suffered by reason of his demotions by payment to him of a sum of money equal to that which-he normally would have earned, had he not been demoted, during the periods between his first demotion and his reinstatement, and his second demotion and the date of the offer of reinstatement, less the sums received by him from the re- spondent for other work performed during these periods. 164 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD (d) Post immediately in conspicuous places throughout its plant, and maintain for a period , of not less than sixty (60) consecutive days from the date of posting, notices to its employees , stating : (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3) that the respondent's employees are free to become , or remain members of United Electrical, Radio and Machine Workers of Amer- ica, Local No. 1002, affiliated with the Congress of Industrial Organ- izations , and the respondent will not discriminate against any* em- ployee ,because of membership or activity in that organization; (e) Notify the Regional Director for the Eleventh Region in writ- ing within ten (10 ) days from the date of this Order what steps the respondent has taken to comply herewith. CHAIRMAN MILLIS took no part in the consideration of the above Decision and Order.