American Broach & Machine Co.

In the Matter of AMERICAN BROACH & MACHINE CODIPANY and INTER- NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA , (UAW-CIO) Case No. C-X276.-Decided October 31, 194° Jurisdiction : broaching machinery manufacturing industry. Unfair Labor Practices In General: without determining supervisory status of instructors, Board held employer responsible for their acts when they were reasonably regarded as supervisors and had-acted at express direction of supervisory employees. Intei Terence, Restraint, and Coercion: questioning employees concerning union membership, soliciting information as to union meetings and activity; indicat- ing displeasure with employees' joining union Companny-Dona vated Union: solicitation of members in plant on behalf of "inside" union by instructors and others at dilectinin of supervisory employees. Dtscrnnii nation: discharge of five employees because of union membership and activity; allegations of, as to two other employees, dismissed Remedial Orders : cease and desist unfair labor practices; disestablish company- dominated organization, cease giving effect to contract with company-dunu- oated union; back pay awarded five employees discriminated against Mr. Frederick P. Mett, for the Board. Mr. Louis E. Burke, of Ann Arbor, Mich., for the respondent. Messrs. Maurice Sugar and N. L. Smolder, of Detroit, Mich., for the Union. Mr. John B. Mellott, of Ann Arbor, Mich., for the Association Miss Marcia Hertzrnark, of counsel to the Board. DECISION AND ORDER STATEMENT OF TILE CASE Upon charges and amended charges duly filed by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), herein called the Union, the Na- tional Labor Relations Board, herein called the Board, by the Regional Director for the Seventh Region (Detroit, Michigan), issued its com- plaint dated May 12, 1942, against American Broach ,& Machine Com- pany, Ann Arbor, Michigan, herein called the respondent, alleging that 45NLRB,No41. 49 35OS-4'1-vol 45-16 241 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent had engaged in and was engaging in unfair labor prac- tices 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, accompanied by notice of hearing , were duly served upon the respondent, the Union, and American Broach Em- ployees Protective Association, herein called the Association , a labor organization alleged to have been dominated , interfered with, and sup- ported by the respondent and to be a party to an illegal contract with the respondent. Concerning the unfair labor practices , the complaint alleged in sub- stance that the respondent (1) on specified dates in March and April 1942, terminated the employment of seven named employees, and at all times thereafter refused fully to reinstate each of them and fully to reimburse each of them for the back -pay losses suffered, because of their membership in and activities on behalf of the Union; (2) by various acts in and after March 1942 , interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act ; (3) in and after March 1942 , dominated and inter- fered with the formation and administration of the Association and contributed financial and other support to the Association. In its answer to the complaint the respondent denied that it had engaged in the unfair labor practices alleged and affirmatively stated reasons for the termination of employment of the, employees alleged to have been discriminated against. Pursuant to notice, a hearing was held between May 28 and June 12, 1942, at Ann Arbor, Michigan, before William R. Ringer, the Trial Examiner duly designated by the Chief Trial Examiner . The Board, the respondent, the Union, and the Association were represented by counsel and participated in the hearing . Full opportunity to be heard, to examine and cross -examine witnesses , and to introduce evi- dence bearing upon the issues was afforded all parties . At the open- ing of the hearing the Association renewed its written motion to intervene, previously filed with the Regional Director for the Seventh Region. This motion was granted , limited to the interest of the Association in,the issues . The answer of the Association denied that the respondent had dominated or interfered with the formation or administration of the Association , or had contributed financial or other support to the Association. At the beginning of the hearing , the Trial Examiner granted certain motions of the Union to strike out portions of the answer of the Association . At the close of the hearing , the Trial Examiner granted a motion by counsel for the Board to amend the complaint to conform to the proof with respect to dates , names, and minor matters. At the close of the hearing , counsel for the Board, the re- AMERICAN BROACH & MACHINE COMPANY 243 spondent, and the Association presented oral argument on the record before the Trial Examiner. During the course of the hearing, the Trial Examiner made a number of rulings on motions and on objec- tions to the admission of evidence. The Board has reviewed the rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On July 27, 1942, the Trial Examiner issued his Intermediate Re- port, copies of which were duly served upon the parties, finding that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from engaging in such practices; that it withdraw all recognition from and completely disestablish the Association and cease giving effect to a contract dated May 2, 1942, between the respondent and the Asso- ciation ; and that it make whole six of the seven employees alleged to have been discriminated against. He recommended that the allegations as to one employee be dismissed. The Union and the Association filed exceptions to the Intermediate Report and briefs in support of the exceptions. The Board has con- sidered the exceptions and briefs and, insofar as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, a Michigan corporation having its office and place of business in Ann Arbor, Michigan, is engaged in the manufacture, sale, and distribution of broaches and broaching machinery. The respondent annually purchases raw materials of more than $200,000 in value for use in its manufacturing operations at its Ann Arbor plant, approximately 20 percent in value of which is shipped to said plant from points outside the State of Michigan. It annually produces at its Ann Arbor plant broaches and broaching machinery valued at more than $500,000, approximately 50 percent of which in value is shipped by the respondent from said plant to points outside the State of Michigan. The broaches and broaching machinery now be- ing produced by the respondent are almost entirely furnished to numerous firms producing guns and other military equipment for the prosecution of the war. The respondent is a wholly owned sub- sidiary of Sunstrand Machine Tool Company, the stock of the re- spondent having been purchased by said Sunstrand Machine Tool Company in 1936. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . IT. THE ORGANIZATIONS INVOLVED International Union, United Automobile, Aircraft and Agricul- tural Implement Workers of America (UAW-CIO) is a labor organi- zation admitting to membership employees of the respondent. American Broach Employees Protective Association is an un- affiliated labor organization admitting to membership employees of the respondent. 111. THE UNFAIR LABOR PRACTICES A. Background, 1937 to March 19-112 In early 1937 , the United Automobile Workers of America, the predecessor of the Union , began organizational activities among the respondent's employees . In May 1937 , a local was formed and a shop committee elected. At that time, approximately 57 percent of the hourly rate production employees were members of the U. A. W. A. Demands were made on the respondent for recognition of the U. A. W. A. and for a written agreement . On July 2, 1937, the re- spondent issued a statement to its employees to the effect that it would deal with the U . A. W. A. as bargaining agent for its employees who were members of the U. A. W. A., that it would not sign a contract with the U. A. W. A., but would discuss wages , discriminations, etc.,, with the U. A. W. A., and stated its policies with reference to hours, vacations, and other matters. In August 1937 , a number of the em- ployees formed the Association out of a social organization which had existed among the employees from 1930 , and on October 21, 1937, it was incorporated . On December 21, 1937, a consent election was field among the respondent 's employees under the supervision of the Regional Director for the Seventh Region. The Association won by a vote of 40 for the Association to 28 for the U. A. W. A. On Jan- uary 14, 1938, the Regional Director issued a written statement to the parties that the employees had selected the Association as their sole bargaining agent by such vote. The evidence is undisputed that'the Association''did not at any time thereafter in 1938, 1939 , .1940, or 1941, negotiate with the respondent with reference to any contract, and that no contract was entered into between the respondent and the Association until May -2,1942. It.is,.moreover, clear that the Associa- tion, after its selection as exclusi^-e bargaining representative in 1937,. was inactive .as a labor organization until in 1942. It held some meetings in the recreation .room at,the plant, but they were poorly attended , and in March 1942, when the Union began organizational activities, many of the employees did not know that there was an existing association. Henry Sell, a witness called bythe Trial Exam- AMERICAN BROACH & MACHINE COMPANY 245 iner, testified that he was elected president in August 1940, and that there was no election in August 1941, because he was unable to get enough interested members to be present to hold such election. He testified also that in August 1941, a number of employees signed a petition for increased wages, but that the Association was not con- nected with the petition. A number of the signers went to the office of Lapointe, vice president of respondent, and presented the petition. Sell was called from his place of work to the office and was asked by Lapointe whether he had authority to speak for the "other men." Sell replied that he would talk to them and see how they liked it. It is thus apparent that the Association was not the exclusive representa- tive of the employees with reference to bargaining for wage increases. Counsel for the Association, in oral argument, implied that the As- sociation was not active from 1937 to 1942, for he stated that he did not think it could truthfully be said that the Association was dead, as it had remained a corporation in good standing so far as the State of Michigan was concerned, and there was no reason for the Associa- tion to be active since the men felt that the company was fair. Furthermore, Rico Ferri, foreman, a witness for the respondent, ad- mitted that when Orland Major applied for employment about No- vember 1941, he told Major that there were no union activities at the plant. On all the evidence, it is clear, and we find, that prior to the organizational activities of the Union in March 1942, the Associa- tion had not been acting as the exclusive representative of the em- ployees of the respondent and had not been active as a labor organization. 13. Interference, restraint, and coercion; domination of and inter- ference with the Association The events material to a consideration of the issues herein occurred between March 15, 1942, and the date of the hearing in this case. It is undisputed that the organizing campaign of the Union began about March 18, when Eckerle, an employee, secured some union authoriza- tion cards and undertook to obtain signatures. It is.undisputed that almost immediately, as soon as the union campaign became apparent in the plant, the Association, which had been inactive since 1937, began a campaign in opposition to the Union. It is also undisputed that four employees, including Eckerle who had started the organizing campaign, were discharged, laid off, or quit between March 23 and April 2, and that on April 18 and 20, three more employees were dis- charged or quit. It is the contention of the Board that between March 18 and May 10, a multitude of incidents, including the termina- tion of employment of the seven employees above referred to, took 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD place, all of which show not only the clear and unmistakable intention of the respondent to defeat the Union by threats and intimidation, but also to make sure that the Union would be thwarted in its efforts to organize by actively encouraging and assisting the revival of the previously dormant Association. The respondent contends, on the other hand, that some of the incidents did not occur, that, as to other events which may have occurred, it was not and is not chargeable .with responsibility, that the revival of the Association was a spontaneous action by employees who disliked the Union, and that the seven em- ployees whose employment was terminated were either discharged or laid off for cause or quit of their own accord. With respect to these seven, it should be noted that, with one exception, all have either been reinstated or have found other jobs and do not desire to return to work, so that the only issue with respect to the remedy, insofar as the six are concerned, is the amount of back pay, if any. Before considering the events in detail, however, it may be well to discuss generally the management aspects of the plant,in order that the participants in the events will be identified. In the spring of 1942, the respondent regularly employed in its plant about 300 persons. This was a much larger number than had been employed even a year before, the expansion being chiefly due to war contracts. Work performed by the employees is semi-skilled. The respondent worked two shifts, and during the period involved each shift worked from 10 ,to 12 hours a day. The vice president in charge of the plant is Francis Lapointe. One Kent is superintendent. There are four departments with a foreman in charge of each. Until 2 weeks before the hearing, Rico Ferri was the foreman of the broach and tool department. At the time of the hearing, he was a general foreman. There are no other acknowledged foremen or supervisors, although it is admitted that under the foremen there are instructors who assist and instruct the other employees. One of the instructors is Bob Ferri, brother of Rico Ferri. The Board contends that he is foreman of the night crew in the broach and tool department. The respondent contends that he is only an instructor. As a matter of convenience in this Decision, Rico Ferri is hereinafter usually referred to as Rico, and Bob Ferri as Bob. With this introduction, consideration will now be given to the testimony concerning the events on which the Board relies. Orland Major testified that on March 20 or 21 Rico Ferri came to him at his machine and asked him, What the hell is happening around here on nights?" After Major said he did not know, Rico stated that the C. I. O. was trying to get in and that he knew that the ring leaders were Eckerle, Bill Stagner, and Paul Everett. According to Major, Rico also said that someone was going to be "the fall goat"; that the AMERICAN BROACH & MACHINE COMPANY 247 employees who joined the C. I. O. would be eased out, but that mem- bers of the Association would be retained. Rico denied that he had said that C. I. O. members would be eased out or that Association members would stay,-but did not otherwise deny the conversation. For reasons detailed hereinafter, the Trial Examiner did not credit the testimony of Rico Ferri when contradicted by reliable witnesses, nor do we. We credit Major's testimony regarding the conversation. Albert Shipman, whose discrimination case is hereinafter considered, testified that about March 21 Bob Ferri called him into the back room and asked him whether he had heard anything about the Union being in the plant, that Shipman said he had not, and that Bob then said, "Just forget about it and don't tell anybody I asked about it." This conversation was not denied by Bob Ferri and is credited. On Sunday morning, March 22, Rico came to Claude Bater's machine and talked with him about who might be members of the C. I. O. Bater testified that Rico asked him if he knew whether the man back of him on a surface grinder was a C. I. O. man, that Bater replied that he did not, that Rico asked whether the men had ever approached Bater to join the C. I. 0., that Bater replied that they had not, that Rico asked whether anyone in the department had solicited him, and that Bater answered in the negative. Bater also testified that several days later Rico again talked to him at his machine, saying that there was one man working nights in the department who had tried to sign up a member in the C. I. O. while riding home after work, and that Rico asked him again whether anyone in the department had asked him to join the C. I. O. Bater further testified that after Rico left on this occasion he told another employee that he thought Rico suspected Paul Everett of being a C. I. O. member and that the next morning Rico came to his machine and asked Bater why he had not kept still about the conversation of the preceding afternoon. Rico denied hav- ing talked to Bater at any time about union activities. The Trial Ex- aminer was impressed by the straightforward testimony of Bater, and credited his testimony with respect to the above conversations with Rico, as do we., On March 22, Paul Everett, an employee to whom Eckerle had given cards for distribution, came to work at noon, and shortly there- after had a discussion with Rico at Everett's machine. According to Everett, Rico said that he thought that Everett was organizing for the C. I. O. and that there were two others in the, shop, and asked Everett to tell him who they were. Everett testified that Rico pointed to Eck-' erle's machine and said that the other one worked nearby; that for Everett to be active in organizing, especially in war time, was "like sticking a knife" in Rico's back after Rico had given him a job and taught him what he knew about grinding. Everett "s testimony further 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was that Rico asked him how far he was in the Union and whether he was actually organizing; that Rico said that he wanted Everett "to kind of stay along" on his side and drop the C. I. 0.; that Everett replied that so long as the shop was running on a full basis and they "didn't fire any of the boys out of there" he would be willing to go along with Rico. He testified also that Rico said that there was too much conversation between men on the day shift and those on the night shift, ands that thereafter the day shift would end at 6 o'clock and the night shift would begin at 7. Everett also testified that in that conversation he stated to Rico that the C. I. O. had quite a start by that time, and that a number of men had signed, to which Rico replied that somebody was going to get fooled and that he had a pretty good idea who they were. Rico, when questioned by respondent's counsel on direct examina- tion, was asked if he had had a conversation with Paul Everett about Everett's organizing activities. He answered; "I don't remember having any." He was further asked: "Mr. Everett further testified you said to him on one occasion that some of the men would be fooled and you knew who they were. Do you remember what that conversa- tion was about, if it took place?" His 'answer was, "Well, if it did take place, I imagine one side or the other would be fooled." After some discussion as to whether the answer was responsive, Rico stated that he did not recall. The Trial Examiner then asked, "You say it didn't occur?", to which Rico replied, "I don't recall it." On the last day of the hearing, after oral argumer_t, Rico was recalled to the stand by the respondent and definitely denied having ever accused anyone of being an organizer, denied that he had asked Everett to stay on his side and drop the C. I. 0., but admitted saying something to someone about "being fooled." He first stated that he did not remember whether he said it to Everett, but that it was said to an employee who had quit the respondent's plant, had gone to another plant thinking he would like it better, and had returned to work for the respondent. At this point the Trial Examiner asked, "Who was this now, you are talking about?" Rico answered, "Paul Everett." The evidence shows that Everett had voluntarily quit the respondent's employ in January 1942, had gone to work in another plant, and had returned prior to the date of the foregoing conversation. Everett impressed the Trial Examiner as a straightforward witness with an accurate memory. The Trial Examiner found Rico's testimony as to the conversation unconvincing. We credit Everett's testimony as above set out.' ' Numerous witnesses testified with circumstantial particularity to various acts and statements by Rico Ferri which , if tine, clearly were untair labor piactices Rico testified on the hest day of the healing as an adverse witness called by the Board, later as a wit- ness for the respondent, and on the last day of the heaung, after oral arguments, as a witness for the respondent , called to deny or explain matters discussed in the oral aigu- AMERICAN BROACH & MACHINE COMPANY 249 Sidney Adams, an instructor in the face grinding department, tes- tified that he joined the U. A. W. A. in 1937 at Rico's request, attended its meetings, and reported to Rico what employees attended, what occurred at the meetings, and who were the leaders.2 He further tes- tified that in 1939, when the plant was enlarging and night work starting, Rico asked him to report any union activity which might arise. He also testified that immediately after union activity began in March 1942, Rico told him at his machine to keep his eyes and ears open and report any union activities to him, that on March 23, 1942, he told Rico that he had heard rumors of activities among the night crew, and that Rico said, " Wren, we will break that up today." This conversation was fixed by Adams as approxiiiiately 3 hours before Eckerle was discharged. Rico denied that he had ever asked anyone to attend tinion meetings and report to him, but admitted that in 1942 -he asked Adams to report union activities, and told men in Adams' department that Adams was so to report. On direct examination by respondent's counsel, Rico testified as follows : Q. He (Sidney Adams) made a statement that you told him that you wanted him to report union activities. Did you ask him to make such a report to you ? A. I did. Q. You mean union activities? A. Union activities, and I asked him to report to ine so I could go and tell the men to forget that inside the shop. Q. Did you inform any of the other men that Adams was going to make such a report to you? A. I have told that to two or three men. Rico denied that in the conversation with Adams he said that they would "break that up today," but admitted that Adams reported to him during this period as to membership in the Union and in the As- sociation, and that Adams had reported to him before March 1942. He admitted that Adams iv as a "willing reporter," but testified that he did not want the information which Adams was giving him. He ad- mitted that Adams on one occasion told him how many members had ment and concerning which there was doubt that the record showed denials or explana- tions It is apparent from the analysis of conflicting evidence throughout this Decision that Rico's testimony frequently was evasive, contradictory, and in places obviously mr probable As in the instance set out above, he at tunes stated that lie did not remember incidents, and later recalled parts of such incidents He admitted parts of conversations and incidents which are inconsistent with his general denials of interference and dis- cnumnation, and with his general testimony of complete neutrality between the Union and the Association The Trial Examiner found from observation of the witness and Iiem the content of has testimony that Rico was not it credible witness 2 The Trial Examiner did not believe that Adams' testimony should be discredited be- cause lie acted as an informer to the respondent with respect to union activities 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been present at a union meeting. The Trial Examiner found, as do we, that Rico was interested in receiving information of union mem- bership and activities both inside and outside the plant. In the face of his express admission that he asked Adams to report to him on union activities, Rico's explanation that Adams insisted on giving reports to him against his (Rico's) wishes, is patently incredible. We credit Adams' testimony with respect to his conversation with Rico. On that same morning, March 23, Kenneth Sisson, an O. D. grinder, brought to work a copy of a contract between a Detroit broach com- pany and its employees. Before work, he showed it to several employ- ees, pointing out the higher wages in Detroit for broach work. There- after, Rico came to his machine. It is undisputed that they discussed this contract, wages, and the Association. According to Sisson, Rico asked whether he was "the agitator," said that he understood Sisson had a paper which had prices on it, and asked to see it; they talked- about the Association, Sisson saying that he knew nothing about it; Rico asked him to see Henry Sell, the president of the Association, to see if it could be started again; and Sisson asked Rico to send Sell down to him. Rico's version was that Sisson showed him the contract without any request by him; that Rico told him he had nothing to do with the matter, but that the person to see was Henry Sell, since Sell was president of the Association, which in 1937 had been selected as the bargaining agent. Rico and Sell denied that Rico asked Sell to see Sisson, but it is undisputed that shortly thereafter Sell came to Sisson's machine and talked with him about reviving the Association, and that later that.day Rico, at Sisson's machine, asked him "how he made out with Sell." Sell's story of how he came to talk to Sisson at that particular time indicates that Rico asked him to see Sisson, although Sell also said that it was his own idea. A portion of his testimony on this point is as follows : Q. How did you happen to talk to him? A. I just happened to spot him and went up to talk to him. Q. You just happened to spot him? Where did you work with respect to Mr. Sisson? A. To see what I could do with him. They said he was-'will- ing [Italics supplied.] Q. Did you work far away from his machine or near or in a different department? A. 150 feet. Q. 150 feet away. You spotted him 150 feet away from your machine and you went over and talked to him. A. I knew him before. Yes. * * * * * * * 'AMERICAN BROACH & MACHINE COMPANY ' - 251 Q. Now, who told you before you went to talk to Sisson that he might want to sign up with the Association? A. No one. [Italics supplied.] Q. Well, you just told us a short time ago that someone had told you something on that subject. A. No, I went and talked to him. Q. You hadn't talked to anybody at all about Sisson before that? A. No. Q. You just went up to Sisson? A. Yes, I thought he would be a good man to talk to. Q. He wanted to know what kind of an outfit this was that you were president of, didn't lie? A. He did. Q. And you couldn't tell him much about it. A. No, I couldn't. Q. You didn't have much to tell him because the Association did not do anything; isn't that right? A. That is what I told him. Nobody wants anything ; that is why we couldn't do anything. The Trial Examiner found that on this occasion Rico Ferri-asked Sisson to see Sell and to revive the Association, and when Sisson asked to have Sell come down Rico caused him to come and talk to Sisson. We agree with this finding. That same morning Sell came to Sidney Adams and said that they were conducting an organizational drive in the Association, and asked if there were any men in his department who would like to sign up. According to Adams, he joked with Sell, saying that the men in his department were 100 percent C. I. 0., and Sell walked away. Adams testified that he thought the matter over and about 11/2 hours later went to Sell's machine and obtained several application cards for membership in the Association. Adams thereupon took the cards back to the face grinding department and began talking to employees, signing several men that day. Later in the afternoon, he returned to Sell and got four or five more cards which, according to his testi- mony, he gave to James Mackie that night when he left work. Adams testified that before lie left work that day Rico Ferri told him to sign up some of the men on the might shift, and that when lie gave the cards to Mackie he told Mackie that he was instructed to give them to him; that Rico asked him before he left whether he had signed up any of the night men and he told Rico that he had left the cards with Mackie. Rico denied that he had so talked with 252 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD Adams, but his denial was not credited by the Trial Examiner, nor do we credit it. James Mackie, an instructor and machine operator on the night shift, testified that he received the cards from Adams, and that about 20 or 30 minutes later Bob Ferri calve to his machine. Mackie's testimony as to Bob's statements at that time follows: A. He said, I suppose you know that you can go around and sign fellows up, take time from your machine and sign these fellows up. Q. What else did he say? A. He said to tell them that if they haven't joined any other union, I would like to have them join it; it was a union among the employees of the Broach. Q. What else did he say? A. He says, "No-,v, remember, I don't know nothing about this and haven't anything to do with it." According to Mackie, Bob returned in about 10 minutes and asked him if he had got any signers, and when Mackie told him that he had not yet spent any time on it, Bob said, "Well, try and get as many of them as you can. Maybe it is a dime an hour more you want, or better job"; that Bob said he had a list of men who were not to be approached with Association cards and that he would bring Mackie a copy of such list. Mackie testified that Rico was then in the room and Bob went over and talked to Rico, and that Rico then came over and said to Mackie, "You can take your time and try and sign these fellows up"; and, in addition, "Now, remember, I don't know any- thing about this. I have nothing to do with it." He testified further that in about half an hour Bob gave him the list, asked him to copy the names and said that he would come back later and get it; that Mackie copied the names, and Bob thereafter came and got the list. Bob Ferri substantially admitted Mackie's testimony about the conversation and the list. He testified: A. I gave Mackie a list of men * * * I think I told him * * * these men belong to the C. I. 0., so you needn't bother asking them. Q. Now, why did you suggest to Mr. Mackie that there were certain people that he shouldn't bother? A. Because they already belonged to another organization. Q. When you talked to Mr. Mackie, did you make any state- ment to him about getting some men to join the Association? A. I did. When I handed him the list I said, "See if you can get some members for the Protective Association, but you needn't AMERICAN BROACH & MACHINE COMPANY 253 bother asking these men because they already belong to the C. I. 0." I further said, "Just ask them-if they would join we would like to have them; that it isn't compulsory * * Q. Where did you get that slip? A. I made that up myself. Q. You knew who belonged to the C. I. 0. at that time; did you? * * * A. Yes. I knew these particular persons did. At the oral argument before the Trial Examiner, counsel for the re- spondent conceded that if Bob Ferri was a supervisory employee to the extent that he was considered by the employees as representing management, his admitted conduct in giving Mackie the list and ask- ing him to obtain signatures was assistance to the Association. The respondent and the Association contend, however, that Bob Ferri was not a supervisory employee and was not reasonably regarded by the employees with whom he worked as representing the manage- ment. It is therefore important to consider at this point the duties of Bob Ferri and his relations with the employees on the night shift in the broach and tool department,. As found above, Bob Ferri is the brother of Rico Ferri and a stock- holder in Sunstrand Machine Tool Company. For approximately a year, he has been an instructor at night in the broach and tool depart- ment. Rico Ferri has been the foreman of that department. His regular hours are during the clay, but it has been his practice to-return to the plant during the early evening and to remain at tines until 9 o'clock and occasionaly later, and to be subject to call during the entire night. When Rico is not present at night, there is ordinarily no one in the department having higher authority than Bob Ferri. There is little dispute as to what Bob does. Rico testified that it is Bob's duty to carry out his,instructions and that "lie supervises and carries out what I map out to him during the day"; that he reports to Rico all irregularities and good work on the night shift, and when Rico is not present issues-passes to employees to leave the plant and to return. Bob testified that lie calls Rico whenever he is unable to handle matters; if an employee does bad work he requires him to stop work on it and causes the defective work to be placed on Rico's desk; he reports to Rico instances of men being late, and has authority from Rico to approve ,time cards when the men fail to check in or check out; the employees come to Bob to ask about raises in pay, and Bob thereafter reports such requests to Rico. Shortly before the hearing a notice was posted by the respondent with respect to vacations in 1942, stating that "your foreman" would interview the-employees .to learn when the employees desired to take their vacations, and Bob thereafter, obtained the infor- 254 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD mation from the various employees in the department. Rico testified that each week he gives Bob a list of persons to whom wage increases have been granted, and does not give that information to the other instructors on the night shift. Furthermore, Bob testified that the men on the night crew look to him as being in charge at night. He later explained that he meant that the men look to him for instructions and suggestions as how best to do their work. The explanation amounts to a change of testimony. In addition to the above-mentioned testimony by Rico and Bob Ferri, a number of witnesses testified in regard to Bob's duties and actions and what relative position the men in the department consider him to have. Carstens, an instructor at night and secretary of the Association, an adverse witness called by the Board, stated that Bob is "his foreman" and the supervisor of the department at night, and that he gives orders to Carstens and all the men on the night crew. According to Albert Shipman, when Rico transferred him to the night shift and Shipman asked Rico for a raise, Rico told him to see Bob because Bob would be his boss. According to the testimony of Mackie, Boner, Eckerle, Major, and Butler, Rico told each of them in sub- stance that Bob would be his foreman or his boss. This testimony was denied by Rico in general terms, but this denial, for the reasons set forth above, is not credited. Butler's testimony was that when he asked Rico for a raise Rico told him to go back to Bob and ask him "because I don't want Bob to think you went over his head to get more money." Vlisides, an inspector, testified that after Vlisides had urged Albert Shipman not to quit Rico told him he should not have done so, but should have let "the foreman" decide such matters, and pointed at Bob Ferri. Vlisides also testified'that shortly after the C. I. 0. began organizing in the plant Rico 'instructed him to check particularly on several individuals and told him to,report thereon to Bob., He testified further that about the same time Bob directed him to check on "those guys" and to stay on the floor continuously in so doing. We credit Vlisides' testimony as did the Trial Examiner. Cardone and Everett testified that Bob gives them orders. Rico in his testimony, and counsel for the respondent in oral argu- ment,' conceded that it is impossible for Rico to maintain adequate personal supervision over the approximately 160 operators on the day and night shifts of the -department. Counsel for'the respondent fur- ther stated that if supervisory authority' was necessary at night when Rico was not present the instructor reasonably to be considered by the men as having such authority and control would be Bob. He con- tended, however, that no such control was necessary, and that no such- supervisory, authority rested in'Bob. , Common- knowledge' of ordi- nary business practice, as well as the direct ' evidence, :impels an oppo- AMERICAN BROACH & MACHINE COMPANY 255 site conclusion. It is clear, and we find, that Bob Ferri, at all times since the night crew was instituted, has been and is a supervisor, and regarded by the employees in his department as representing man- agement. Immediately following Bob Ferri's discussion with Mackie in which he' directed Mackie to solicit members for the Association, there was for several days an active drive in the plant to obtain such members. For example, Carstens testified that he secured signatures of 15 or 20 of the 30 spline grinders. C'ardone testified that Don Gfell, the stock chaser, was also active in soliciting; that on March 28 Cardone went to the tool crib to get a drill, and found Bob Ferri and Rico Ferri. Gfell came up and said to them, "They both signed up." Rico then said to Gfell, "How many times have I told you not to tell everyone?" This testimony by Cardone was not denied by Rico or Bob, and Gfell did not testify. We find that the conversation occurred as testified about by Cardone; and that Gfell was soliciting members for the Associa- tion with the knowledge and approval of Rico and Bob Ferri. Ac- cording to Vlisides, Gfell told him that he had to join the Association. Bater testified that Gfell came to Bater's bench, threw down an appli- cation card, saying, "You had better sign that," and passed cards to the various men in the department. When he returned to Bater's machine, Bater asked him where to sign it and Gfell suggested that he go out with him. They walked past Rico. They filled out the card at the same bench against which Rico was leaning, about 15 feet from them. Rico said nothing to Gfell or Bater about their absence from work, though they stayed there 7 to 12 minutes. Bater's testimony is undenied as to these circumstances under which he signed the applica- tion for membership in the Association, and we credit it. Rico's approval of the actions of Gfell in obtaining Bater's signa- ture during working hours contrasts with Rico's attitude toward Bater after he joined the Union about April 16. _ According to Bater, Rico came to his machine about April 19 and told him that he was going to have to ask him "to stop running through the shop with C. I. O. cards," Bater replied that he had not been doing it during working hours, and Rico said that it made no difference, he was not to solicit for the C. I. O. on the premises, and if he did he would be discharged. Rico denied any such conversation, and testified that about 3 weeks before the hearing he ordered Bater back to his machine, but that nothing was, said about organizational activities or soliciting. The Trial Examiner did not credit Rico's denial, and found that the con- versation occurred as testified to by Bater. This conclusion is corrobo- rated by Sisson's testimony that after Bater joined the Union, Rico came to Sisson's machine where Don Gfell and Sisson were talking 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and told Gfell to watch Bater and if he found him away from his machine to fire him. This testimony by Sisson was not denied, and is credited. On March 26 or 27, Bob Ferri told Mackie that Al Smith was fool- ishly signing up an employee named Honeywell, that he had told him not to do it, that it was the worst thing he could do, and that lie had told him to stay out of that department. Honeywell's name was on the list which Bob had prepared and given to Mackie, of persons who should not be solicited on account of membership in the Union. Though Mackie solicited members for the Association as requested by Bob Ferri, lie did not obtain any signatures. Bob, according to Mackie, asked him whether he had obtained any members, and Mackie told him he had not. Mackie had joined the Union about March 21. About March 30 or 31 he began wearing a C. I. O. button in the plant. According to Mackie, Rico then talked to him at his machine more than 2 hours with respect to obtaining increased production, having less conversation while at work, and at the end used vulgar language in referring to Mackie. Mackie testified that he said to Rico that he was afraid to discharge him, and that Rico said, "Yes, I know it. I have to get something on you first." Rico admitted that lie had a con- versation with Mackie, denied that he said he was afraid to fire him, but testified that he said that he would be foolish to fire him "for noth- ing." We find, as did the Trial Examiner, that Rico, having observed Mackie's C. I. O. button, spoke disparagingly to Mackie and in effect, threatened to discharge hint when a pretext other than his union membership could be found. Shortly after Mackie began wearing his C. I. O. button in the plant, Rico had a conversation with Adams about Mackie. Adams testified that Rico told him that lie had found out that Mackie belonged to the C. I. O. and that he had thought it queer that Mackie had not, signed up any members for the Association. Adams further testified about this conversation as follows: Q. What else did he say? A. He told ine he thought Mackie was a god damn, double- crossing rat and s . Q. Anything else? A. Not that I remember. Q. Was there any talk about scrap or scrapping something? A. He said, "I wonder how we can get him to scrap something." Rico admitted having had a conversation with Adams about Mackie. When first questioned by counsel for the respondent, he testified as follows regarding this conversation : Q. Now, Adams clciiined-thalt -you, found out-that Mackie had joined up with the. C. I. O. and when you found it out you said AMERICAN BROACH & MACHINE COMPANY 257 to Adams he was a double-crossing rat. What do you have to say as to that statement? A. What I meant was he "ratted,' on both sides. * * * * * * A. I never knew he was interested in either one of them., I just said that because he had told on both sides. Sid Adams came and told me about it. I never knew which side he belonged or anything at all. Q. Who told you? A. Syd told me. Q. That Mackie was interested in the C. I. O. and also in the - Association? A. That is right. And that's the way I said that he ratted on both sides. * * * * * * * Q. So when you got the information about what Mackie was doing, it was because Adams came to you and told you that? A. That is right. Q. Now would you be able to tell us when it was that Adams told you that Mackie was interested in the C. I. 0.? You remember on any particular occasion when he told you that? A. One'day he told me he had gone to one thing and another day told me he belonged to another. * * * * * * * Q. Now, why was it that you and Adams were in any discussion about Mackie at all? A. Just-I walked by there and Adams brought up to me-I don't know I was ever in a discussion Q. You say you have never solicited from Adams any infor- mation about Mackie. A. No, I wasn't interested at all. [Italics supplied:] On cross-examination, Rico testified that Adams was talking about Mackie and wanted to know what Ferri thought of him, that Rico's comment to Adams about Mackie "ratting on both sides" was a pass- ing comment on Mackie and had no reference to any disloyalty to Rico, but that "he was just ratting on both sides * * * The men asked me my opinion and I told him." Later, on being questioned by the Trial Examiner as to what was said by them, Rico testified .as follows : A. The exact words was that Syd came over and told me that Mackie was telling both sides and I said "He is just ratting" and,that ended the conversation. 493508-43-vol. 45-17 258 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD Trial,Examiner RINGER.. Telling on both sides-I don't under- stand telling on both sides. Did he use that word or what idea I- I are you trying to express? A. First you would hear one member joined one and another member joined the other. That's what I mean by "telling." Trial Examiner RINGER. What was, it you were referring to when you say that Adams told you,that Mackie was on both sides, was it, your idea he had joined one or the other after being a mem- ber of the first one? A. I didn't know which one he belonged to,and I still don't know whether he belongs_to both of them today or not: It has been found that Rico participated in Bob Ferri's instructions to Mackie to solicit members for the Association.- It is clear that when Rico observed him wearing a C. I. 0. button, after he had failed to obtain any members for the Association, Rico considered him disloyal to the "Association cause. and thus to him, and to the respondent. We 'find, as did-the Trial Examiner, that Rico's statement to Adams.that Mackie was a "double-crossing rat" referred to Mackie's failure to ob- tain'members for the Association, to his joining the Union, and to his wearing a union button. During the campaign for Association members, Ralph Perkins, in- structor of spline grinders on the day shift, urged Max Tobias,_ Car- done, and Everett Vreeland to join the Association. Henry Sell, an instructor 'of milling machine operators, testified that he was quite active in the campaign to obtain members and that he worked with some of his special friends in obtaining members. . - During the hearing testimony was introduced concerning the duties of the instructors, and the Trial Examiner -found in his Intermediate Deport that' tliey perform ,supervisory functions. We find it un- necessary to determine this question, since it is clear that instructors in the respondent's plant are reasonably regarded as supervisors by the machine operators,3 and since some of the individuals, including in- structors,vwho aided or solicited members for the Association did so at the express instructions of the respondent's employees who were clearly supervisory. The respondent is therefore liable for their actions re- gardless of whether or not the instructors are regarded as supervisory., The intensive drive for membership in the Association continued approximately a week until on or about March 29, when the Associa- tion elected new officers: The record indicates that such activity was' most intense form March 23 to March 26. During those 3 or 4 days, the employees, including instructors who were interested in the revival of the Association, went,freely from machine to machine and from department to department, talking with the employees and soliciting- 3 International Ass'n. of Machinists v. N. L. R. B., 311 U. S. 72, 61 S. Ct. 83. - AMERICAN BROACH & MACHINES COMPANY . 259: signatures on application cards. It is undisputed that respondent's higher officials and Rico knew that such organizational activity was occurring. Rico testified as follows : Q. (By Mr. Mett.) How do you know, so much about Carstens' activities in the C. I. 0. and the Association? - A. Why, everybody in the shop knew it. - Bob Ferri's activity in the revival' of the Association has already been indicated. He testified, in addition, when asked whether Carstens was securing applications in the Association : "I have reason to believe he was." Lapointe admitted that in the latter part of March he real- ized that there was "ganging up," and that he repeatedly instructed Rico to pay no attention to any organization matters. It is clear from all the evidence, and we find, that the respondent was aware of the organizational activities, approved and encouraged them, and was' responsible therefor. The record contains evidence of numerous additional acts and state- ments by Lapointe, and by the Ferris, Rico and Bob, indicating hos- tility to the C. I. 0. and a liking for the Association. Many of them' are undenied and some, are denied only in general- terms: A number_ ' of such incidents will now be mentioned. About March 26, 1942, Rico called Cardone to the inspection room and, according to Cardone, told him that he could have fired a lot of men during the year but he had had a soft spot in his heart and that he did not want Cardone to do "anything that would force him to, do something he didn't want to do," that there were two sides to every- thing, and that he was not threatening Cardone. Rico did not deny this conversation: About April 11, Cardone first wore his union' button. Rico stopped by his machine. Cardone told Rico that it looked as if he would be looking for another job if the C. I. 0. should not get in. Rico asked him why, and Cardone replied that he had stuck his neck out quite a ways. According to Cardone, Rico then said "Not necessarily, you can cool off, can't you?" Rico's testimony in regard to this conversation is of, importance in considering his credibil- ity with respect to his denials and partial denials on many incidents testified about in the record. Examined by counsel for the respondent, he testified that one morning Cardone did say that he would have to look for another job and that Cardone, on that occasion, was wear- ing his steward's button. Rico testified that he did not know what Cardone was referring to, but answered that it was not necessary and walked away. Rico's testimony thus admits substantially the conversation as testi- fied to by Cardone except the portion about Cardone's cooling off; and contains the implausible statement that Rico did not know what Car- done was referring to with reference to having to seek another job. 260, DECISIONS- OF NATIONAL LABOR RELATIONS BOARD We find, as did-the Trial Examiner, that Cardone's version of the con- versation'is substantially correct. - Sisson testified, and Rico admitted, that Rico told Sisson at the latter's machine that he had seen C. I: O. buttons go into the, waste can before. Rico's explanation was that the statement was made in a joking manner and based on the fact that in 1937, after the Associa- tion had won the election, the janitor had shown Rico a shovel full of buttons and thrown them into the ashcan. The Trial Examiner did not credit Rico's explanation that the statement was jokingly made, nor do we. On March 23, William Nugent, an O. D. grinder, was breaking in Shell, a new man, on his machine. On March 25, Rico asked him to hurry in breaking in Shell in order that Nugent could be moved to another machine. Adams also talked to Nugent that day, telling him that they wanted to change him but could not until he joined one of the unions, and thus showed which side of the fence he was on, and that he would have to stay on his present machine, if he did not join one of them. Nugent testified that about 3 hours later Rico came to him and asked him how the new man -was learning. Upon Nugent's state- ment that he was doing all right, Rico sent Nugent in to the other room for Sisson to show-him how to operate the better machine there. Sisson had just started to show Nugent how to set up the machine, when Rico came in and told Sisson not to show Nugent further, that he was not going to make any changes until other changes' had been made. Rico then sent Nugent back to his old grinder, following him. At the machine, Rico talked to Nugent, who was somewhat angry at being sent back. Rico said that he was still boss, that his 'decisions stood, that he had hired men from gas stations, ice wagons, and stores, given them good jobs, that they still were not satisfied, wanted to make as much' as the older men, and then "wanted to run the place," that he had, done Nugent a favor in giving him a job, and that Nugent was making good money., Nugent replied that he appreciated what Rico had done, for him, that he knew what was wrong, and that "if it made that much difference" he would join the Association. Accord- ing to Nugent, Rico then said that he would see what he could do in the morning about changing; Nugent to the other machine. Nugent immediately went to Adams and signed an application. The next morning he began work on his old machine, still instructing Shell. About 10 o'clock, Rico came into the room. Nugent went over to him and told him that he had joined the Association, and asked him whether that made things all right. Nugent testified that Rico said that he could not get him to say anything, but that the new, machine would be empty shortly and when it was empty Sisson would then show him how- to operate it. Early that afternoon, Nugent was transferred to' the new machine. ' AMERICAN BROACH & MACHINE COMPANY 261 • Rico admitted the conversation substantially as testified to. by Nugent, testifying that after Nugent was sent back to his old machine he had said to Rico that if it meant as much as that he would join the -Association, that Rico replied that he did not care to listen to that kind of talk, that the next morning Nugent told him that he had joined the Association, and that he was put on Sisson's machine that day, but that Nugent's joining the Association had no connection with the transfer of Nugent, to the better machine. He testified that he had had an earlier conversation with Nugent in which he had talked about hiring men from gas stations, ice wagons, and stores, and giving them good jobs. We credit Nugent's testimony about the transaction, as did -the Trial Examiner. Ivan L. Boner was discharged on April 2, as hereinafter more par- ticularly discussed. On April 6, the night he returned, Al Smith, a hydraulic planer in the machine shop who had been active in reviving the Association, told,Bob Ferri that he wished to talk to Boner, who was under Bob in the broach and tool department. Bob, accordingly, brought Boner to Smith's machine, and a long conversation ensued. Boner testified that it lasted 2 hours. Bob Ferri and Smith testified that it was 1 hour in length. It is undisputed that Bob Ferri re- mained at Smith's machine during the entire conversation. The testi- mony as to the conversation is without substantial disagreement. The purpose of the talk with Boner was to persuade him to agree to sign an affidavit to indicate'that the C. I. O. was not responsible for his return to work. The Union had circulated handbills claiming credit for having obtained Boner's reinstatement. Regardless of which or- ganization had been responsible for his return,4 it is clear that the purpose of the conversation with Boner was to obtain an affidavit for use in organizational activity by the Association. Smith testified that such an affidavit -would have been "pretty good propaganda" for the Association.' The evidence indicates that Bob Ferri did not take an active part* in .the discussion, but he admitted that when 'asked what he would do, he stated that if it was the truth that the C. I. O. had not been responsible for Boner's return,, he would sign an affidavit so stat- ing. Smith's testimony that his only purpose in having Bob Ferri present was to witness what was said is not credited. During this ,conversation of at least an hour, Bob Ferri, Boner, and Smith were not working. It is.clear, and we find, as did the Trial Examiner, that, by the acts and statements of Bob Ferri and the acts 'and statements of Smith permitted and approved by Bob Ferri, the respondent inter- feed' with, 'restrained, and coerced its' employees and assisted the Association. d The evidence indicates that in the conversation Boner agreed that the Union had not obtained his reinstatement. , 262 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD We have found` above that Rico Ferri instructed Adams to obtain members for the Association, as well as to report on the activities of the-Association and' the Union. Adams testified that-Rico, several days later, during the intensive drive for Association members, asked him specifically whether he had obtained the signatures of employees Dishman, Worster, Nugent, and Allbright, and that Adams reported that Worster and Nugent had joined, and Dishman and Allbright had not. Adams testified that Rico urged him to "keep after" Allbright; otherwise the C. I. 0. would get him first. Rico denied asking Adams about the above-named individuals, but admitted that Adams reported to him about union and Association activities. In view of Rico's ad- missions and his activity in opposition to the Union and in support of the Association, as heretofore found, we credit, as did the Trial Exam- iner, Adams' testimony with respect to Rico's inquiries. About April 14, Adams, according to his testimony, decided not to report further to Rico about the C. I. 0., joined the Uilion, and openly wore a C. I.0. button in the plant. He testified that the first day he wore his button, Rico came to his machine and began to ask him questions about the meeting of the Union the night before, stating that Adams had at- tended and that he had heard that Adams was a member in good standing, that Adams replied that that was true, and added, "Is there any law against it?", to which Rico replied that he did not know that there was. Rico testified that he learned from Cardone that Adams had joined the C. I. 0., and admitted the greater portion of Adams' testimony about this conversation. We credit Adams' testimony, as did the Trial Examiner. The same day Lapointe came to Adams' machine. Adams' testimony as to the conversation follows in part: A. Well, the same day about lunch time he came to my ma- chine and -he asked me what my name was and I told him and he said, "I thought so." He said, "I understand you are pretty much dissatisfied here," and I said I wasn't exactly dissatisfied, and he said, "well," he said, "You have got something up here," and he pointed at his head, and then went on to state that the boys in Bataan were working for a lot less money than I was making, and he also said he looked at some of my pay checks and they were pretty high, around $80 or $90. Lapointe admitted having a conversation with Adams pertaining to his dissatisfaction, but stated that his attention was called to Adams by a conversation he had with another employee. Lapointe's version of this conversation is as follows : A. I told him that I understood that he was dissatisfied: He did not answer. I told him I was informed by others in the plant that he had been out trying to get them dissatisfied and making cer- (AMERICAN BROACH &. MACHINE COMPANY 263 tain remarks regarding the firm and the work I was doing * * * and I pointed to my head and told him if he would use his head and think back a little, "I think you will agree what we have done for you since you have been here has been the right thing, and that you will do the right thing here. We will use you that way. Otherwise if you are dissatisfied here you have a right to work some other place if you want to." He stated that he wasn't that much dissatisfied. I asked him, "But you are dis- satisfied," and he said "Yes." That is all I said. Q. Mr. Lapointe, do you know whether or not-do you know how long Mr. Adams has been working for the company? A. A few years. I recall we took him; he was on relief; that is what I referred to if he would think back, and we had sent him on the road once or twice to instruct one of our customers. We tried to bring him up, and he didn't seem to take it. Lapointe testified that nothing was said by Adams or by him about any union activities. In view of the timing of Lapointe's remarks,, following shortly after Adams' conversation with Rico Ferri recited above, it is clear, and we find, as did the Trial Examiner, that the statements by Lapointe about Adams' being dissatisfied, trying to get the men dissatisfied, and about using his head and doing the right thing, constituted a thinly 'veiled reference to the fact that Adams had joined the C. I. O. and an effort to have Adams resign from the Union. As the result of the organizing campaign on behalf of the Asso- ciation, it obtained a substantial membership by March 29. On that date it held an election at which new officers were selected. There- after the Association met with the respondent on several occasions and conducted negotiations concerning a contract with respect to wages, hours, and conditions of employment. Thereafter, on May 2, contract was executed, to expire 1 year from that date. Conclusions From the-'above'•consideration of the evidence, there can be little question that during March, April, and May 1942, the respondent actively engaged in a campaign to interfere with the rights of its employees to select their bargaining representatives and to join the Union or the Association as they voluntarily might decide. Like- wise, there can be no doubt that the respondent at the same time actively assisted the Association in its "revival and its campaign to defeat the Union. The evidence of anti-union and pro-Association activity on the part of_ Rico Ferri, Bob Ferri, and the instructors working with Rico and Bob-Ferri is overwhelmingly clear. In ad- dition, Lapointe, vice president of respondent, is shown -to have par- 264 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD ticipated in similar activity. The numerous incidents testified to by various individual employees with circumstantial detail were, in gen- eral, unshaken on cross-examination , and admitted in many instances and to various extents by Rico Ferri, Bob Ferri, and the instructors involved. When denied or explained in general, or specifically as to portions of conversations, the denials and explanations are frequently unreasonable and sometimes incredible. The • entire record impels the finding that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has dominated and interfered with the administration of the Association and contributed support to it. The Association contends in its brief that it was the duly certified bargaining agent of the respondent's employees, by virtue of certifica- tion by the Regional Director on January 14, 1938, and that it there- fore was entitled to insist upon the respondent's entering into the contract of May 2, 1942. In view of our findings above as to the character of the Association and the interference with and domination thereof by the respondent, there is no merit in this contention. ' We find that on May 2, 1942, the respondent entered into a contract ,with the Association with respect to wages, hours, and conditions of employment, and that such contract was made with a labor organi- zation which had been dominated, interfered with, supported, and assisted by the respondent. C. The discharges It has been found that 'the respondent, beginning in March, 1942, interfered with,, restrained, and coerced its, employees in the exercise of, the rights guaranteed in Section 7 of the Act, and dominated and interfered with the administration of the Association and contributed support to it. , It is clear,, from the findings made above, that during the period in question the respondent attempted to discourage mem- bership in the Union and to encourage membership in the Associa- tion. The complaint alleges that the respondent "terminated the employment-of" seven named employees on or about specific dates and his at all times' thereafter refused 'to reinstate fully `and reim- burse fully.each_for back-pay losses suffered by him, all'because of his membership in' and activities on behalf of'the Union, ahd for the purpose, of discouraging membership and activity on behalf' of the-. Union, as follows : ' Alfred Eckerle----------------------------------- March 23, 1942, Walter Butler---------------------------- -------March 23, 1942 Albert Shipman-"_: 25, 1942, Ivan , L. Boner_______________________-------- ----March 26; 1942' Orville Nowlin---------- ------------------------April 18, 1942, Royce Porath-------------------------------------- April 18, 1942, Max Tobias---------------------------------------April 19,, 1942 AMERICAN BROACH & MACHINE COMPANY 265 These alleged discriminations will be considered in order. Prelimi- narily, however, the evidence will be considered as to whether the record shows a purpose or intention on the part of the respondent to discriminate as a means of discouraging membership in or activity ,,on behalf of the Union and to encourage membership in or activity on -behalf of the Association. Findings have already, been made which bear on this point. It has ,been found that on March 20 or 21 Rico Ferri told Orland Major, referring to the union activity among the night crew, that someone was going to be "the fall goat" and that employees who joined the C. I. O. would be eased out, but that members of the Association would be retained. It has been found that Rico, in a conversation with Paul Everett about March 20, referring to the union activity, said that someone was going to get fooled and that he had a good idea who they were. It has been found that about March 26 Rico told Cardone that he could have fired a lot of men during the preceding year, but that he had a soft spot in his heart and had not done it, and that he did not want Cardone to do anything "that would force him to do something he didn't want to do," that there were two sides to everything, and then added, "I am not.threatening you." It has been found that after Bater joined the Union Rico told Gfell to fire him if he left his machine, in contrast to the unquestioned freedom which solicitors for the Association had enjoyed throughout their campaign for memberships. It has been found that about March 30, after Mackie joined the Union, Rico told him that he was afraid to fire him and had to get something on him first. Rico admitted that he told Mackie "it would be foolish to fire men, for nothing." It has also been found that Nugent was not per- mitted to move to a better machine until after he had joined the Association. The above acts and statements by Rico Ferri, taken in connection with the interference, restraint, and coercion, and assistance to the Association, clearly indicate that the respondent, during the period' in question, had a purpose, desire, and intention to discriminate 4,against..members and persons active in the Union, as a part of its attempts to discourage membership and activity in the Union and to encourage membership and, activity in the Association. Whether the respondent discriminated in the individual -cases will now be considered. Alfred Eckerle was first employed by the respondent on July 15, 1941, as a surface grinder on'the night shift at 55 cents an hour. On March 23, he was receiving 88 cents an hour, having received his last raise in February. As has been found above, he caused an organizer to come to Ann" Arbor from Detroit on March 18, and the net day began passing C. I. O. application cards among the employees on the 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD night shift. It is clear that he was the person primarily responsible for the C. I. O. activity in the plant, and that-by March 23 he and his helpers had obtained 30 or 32 signed applications. At this time Eck- erle was working, each week, 111/2 hours on 5 days and 7 hours on Saturday.. The respondent had been operating on Sundays, mainly in the afternoons. On Sunday work, the practice was to ask employees whether it was convenient for them to work that day, and not to require Sunday work. Eckerle had been asked on a number of occasions, and had indicated his preference, not to work on Sundays, but to work on Sunday morning rather than Sunday afternoon when the respondent particularly desired Sunday work for him. Accordingly, he had worked 5 or 6 Sunday mornings in January and February, but imme- diately prior to March 23, had not worked on Sundays for 4 or 5 weeks. He testified that he had not been asked to work on those Sundays. On Monday morning, March 23, Eckerle was called in to the plant at Rico Ferri's request. Eckerle's testimony as to the con- versation is as follows': A. Well, we started walking do-%^n the steps, down through the plant, and he started to telling me that they was behind with the work and had to get out more work, had to put in longer hours, and I says "You know the hours I am putting in now, I am put- ting in 641/2 hours a week," and I says "After this war started I did step up my hours, I was only putting in 60 hours a week, so I ,stepped it up 41/2 hours a week." He says "We11, we have got to have more yet." Well, I says "I can work more Saturday nights" and he says "We. will take that all right, but you have got to work Sundays, too." I says "You know how I feel about Sun- day work, I don't want to work Sundays" and he says, "Well," he says "we know that." I says "Don't you think I am putting in enough hours the way it is?" He said "That's beside the point, we have got to have this work out." I said "Do you like to put in as many hours as you are putting in?" and he said "No" and I said "I don't either." He says "We will take it for granted you will work later Saturday nights?" I said "All right, how long do you -want me to work,? ". Well, he asked me that, again, and lie went on_ and said "You will still have to work Sundays, too.". I said "I don't care about working Sundays at all." So he- said, "well," he says "You ' have to work Sundays." I said "If I have to work, I will work, but" I says "I won't' unless I have to." Well, he says "It's too bad now, but I have got a .man in your place." "Well, that's kind of a hell of way to do, hire a man in niy place, without even asking me to work." He said "You wouldn't work with the right attitude anyway, and 'we have got a man in your AMERICAN BROACH & MACHINE COMPANY 26Z place that will work, work with the right.attitude, and he wants to work Sundays." Q. What else was said between the two of you? A. Well, then we walked out to my machine, and he says, "Well, get your tools" and I says "I haven't got my key" and he says "Well, can you or when can you get them?" I said "I don't know, but I will be in to pick them up sometime." Q. Yes. A. I asked him "Now, Rico, be man enough to tell me the real reason why you fired me, it isn't because of Sunday work" and I says "There's some other reason." He saids "No, that's the only reason, just because you won't work Sundays." I said "Yes, but I told you I would work Sundays, if it cost me my job I would work Sundays," and I said "I don't want you to forget that or ever forget it; I will work Sundays if I have to, to hold my job." He says, well, he says "I got a man in your place, so that's all there is to that." I said "Well, if that's it, that's it," and I walked out. Rico did not deny this conversation, but testified that 6 or 8 weeks before March 23 he had told Eckerle that he would have to work Sun- day afternoons instead of Sunday mornings because one of the day men would be using his machine on Sunday mornings and because the men were complaining that Eckerle was being favored by permission to work on Sunday mornings. It is undisputed that Eckerle was not requested to work on March 23 and that lie had never refused to work on Sundays. The evidence shows that all Sunday work was aban- doned within 1 or 2 weeks after Eckerle's discharge. The answer of the respondent with reference to the incident of March 23 alleged that Eckerle refused to work on Sunday unless he was al- lowed to determine the time when he worked, and that the respondent thereupon put in his place a man who would work as directed by the respondent. ' Lapointe testified that he instructed Rico on Sunday, Match 21, to lay Eckerle off, intending to recall him later to some posi- tion where Sunday work would not be so important. He testified that Rico had told' him repeatedly that Eckerle refused to work on Sunday unless in the morning. It is undisputed that Eckerle had never so refused. According to Eckerle, whom we, credit, as did the Trial Examiner, he stated to Rico on March 23 that he, would work' on Sunday if it was required, and that 'Rico then stated that he had' another man already selected and that'"you wouldn't work with the right attitude anyway." Rico's selection of a replacement for Eckerle, before asking him further about working on Sundays, taken in con- nection' with the respondent's campaign against the, Union,, which Eckerle had brought- into the plant only 4 days before, makes it entirely 268- DECISIONS OF NATIONAL LABOR RELATIONS BOARD clear that the attitude referred to was his union attitude and that the matter of Sunday work was the excuse, not the cause, of his discharge. We find, as did the Trial Examiner, that Alfred Eckerle was dis- charged on March 23 on account of. his union membership' and activ- ities. On April 15, Eckerle returned to work after negotiations participated in by the Union, the respondent, Victor Sweringen of the Michigan State Mediation Board, and representatives of the War Labor Board. Lapointe testified that he told.Eckerle that if he came back he would have to, stop all organizing in the plant. Eckerle testified that he did not thereafter solicit members during working hours. It is clear that both Eckerle and respondent's supervisory officials were resentful about the, situation. Eckerle testified that he was put on a poorer machine and given harder work than he had had before his discharge. We do not find the evidence sufficient to support Eckerle's contention. However, Lapointe admitted that Eckerle sought to talk to him about the work being given him and that Lapointe brusquely refused to dis- cuss the matter. It is undisputed also that from the date of Eckerle's return a special and particular check was made on his work. - Lapointe admitted that ordinarily he did not receive daily reports on work of individual operators, and that it has not been done recently except in Eckerle's case. Rico testified that after April 15, he checked Eckerle's work daily under instructions from Lapointe to take to Lapointe every broach Eckerle might spoil, and that such instructions were given only as to Eckerle. Eckerle knew that his work was being closely checked. It is the respondent's contention that this special checking on Eckerle's work was at the request of Sweringen. Lapointe and Rico both so testified. It is clear, however, that any requests by Sweringen to have Eckerle's work checked followed and were the result of inquiries of Lapointe of Sweringen as to whether the respondent would have to to keep Eckerle if his work was bad. Lapointe testified that he called Sweringen about May 13 and asked if he had to continue to employ Eckerle "when he wasn't attending to his job and doing his work ,properly," and that Sweringen advised him to call Eckerle in and warn him. It is undisputed that on the same day Lapointe called -Eckerle into his office and explained to him that he was doing slow and poor work. At that time, Eckerle's work had been checked closely and continuously since his return on April 15. On May 14, the respondent wrote a letter to Sweringen, one paragraph of which sheds consider- able light on the respondent's attitude toward Eckerle . It is as fol- lows : I really believe that the trouble with this fellow is that his mind is not on his work and he has an idea that he is quite an authority on general conditions all over the plant. Rather than tend to 0 l AMERICAN BROACH & , MACHINE COMPANY 269 business and do the job right, his mind is roving on the imaginary ability he has on other problems., I make this statement based ,on his sort of definite and positive statement he made to the paper and also on my observation of him while working. , Lapointe testifed that the paragraph referred particularly to an article in the Michigan Daily of April 29, in which Eckerle was quoted as stating that the respondent was responsible for the decrease of produc- tion • in the plant on account of its opposition to the organizational drive of the Union. It is clear that Lapointe considered Eckerle's union attitude as the main thing that was "the trouble with this fellow." On May 18, at about 8 p. in., Eckerle turned off his machine and asked several of the men if they were going out witl him.- Nine quit work at that 'time and an hour and a half later three more'-walked out. Eckerle testified that this walk-out was on account of his feeling that he was being discriminated against in his work. There is no charge in the complaint that this walkout was an unfair labor practice strike. It is clear; however, that Eckerle walked' out because of the respond- ent's check on his work and repeated warnings and his belief that he was being discriminated against on account of his sponsorship of the Union and his previous activities in obtaining members. By the next night, all the men who had walked out had returned to work except Paul Everett and Eckerle. Everett decided not to return. Eckerle, however, on May 22, was told by Rico Ferri that he was not to be permitted to return and that he had orders not to let Eckerle in. On May 23; Eckerle talked to Lapointe, who told him that -he was all through, and that his casewas before the Labor Board. The respond- ent conceded that it refused to take Eckerle back after the walk-out. Its explanation is that his work was slow and poor. In its answer, the respondent averred that Eckerle was returned to work on April 15, and that "since returning has spoiled pieces of• work and is not over 50 percent efficient on his work at the present time, as compared with other men on similar jobs." There was considerable evidence intro- duced with respect to three broaches on which- Eckerle had worked. The respondent's testimony indicated that the work done by Eckerle on them was slow and poor. It is clear, however, that all the work done by Eckerle on these broaches was done while he was being checked daily to his knowledge and while he was the only employee so being checked, 'and that on May 13 he was merely warned that his work would have to improve. In view of the'respondent's discriminatory discharge of Eckerle on March 23, its clear purpose to check his work to find unsatisfactory work, and its 'resentment towards Eckerle on account of his quoted statements in the Michigan Daily of April 29, we are convinced and find that the respondent's' refusal to reinstate 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him at all times after May 22 was because of liis union membership and activities. Eckerle stated at the hearing that he did not wish reinstatement and that he had so decided on June 1 when he obtained employment at another broach company. Walter Butler was discharged by Lapointe on March 24, the day following Eckerle's discharge. The respondent contends that he was discharged for "incompetency and inefficiency." In March 1942, he was a face grinder on the night crew under Bob Ferri's supervision. It is undisputed that about 3 or 4 weeks before his discharge he demanded a wage increase and was given it, effective 7 days before he was dis- charged, making his pay 821/2 cents an hour. Several days before his discharge, he'had been asked by Carstens to join the Association and had refused. At that time, Carstens stated that most of the men not signing up would be let out after things had cooled down. On March 23, as heretofore found, Eckerle was discharged. That evening, hand- bills were distributed announcing a union meeting the following morn- ing. Sisson took a handbill to Rico, who telephoned someone, referred to the handbill and said "this man scraps a broach every night or two anyway, and he possibly will scrap one tonight." Butler attended the C. I. O. meeting on the morning of the 24th, protesting the discharge of Eckerle, at which a considerable number of the night crew were present. That night, shortly after Butler returned to work, Bob Ferri called him and sent him to Rico. Rico told him that he had scrapped a broach the preceding night. Butler said that he did not know of it. Rico called Below, an instructor of the surface grinders on the day shift, and Everett Vreeland, the head inspector. They checked a broach and said that it was scrapped. Rico told Butler that he was discharged. Butler testified that he told them that he had not worked the previous night on the broach which,they had checked and said that he thought he was being discharged because of his attendance at the union meeting that morning. Butler asked for his pay check, and Rico replied that he could not have it until the next day. Butler refused to leave until he should get his pay check and his tools. The police were called and Butler was escorted outside the plant. It is undisputed that Butler had scrapped broaches before to the knowledge of Bob Ferri, and that until Butler's case discharges for occasionally scrapping broaches had not occurred. Butler testified that the broach which he had worked on the previous night was not a perfect job and had burn marks on it. When Vreeland testified on behalf of the respondent he first identified respondent's Exhibit 2 as the broach which Butler had worked on and which he had checked in Butler's presence. On cross-examination he stated that when he iden- t AMERICAN BROACH &, MACHINE, COMPANY 271 tified it he had ,not looked at the,face of the broach, and stated that the broach which he had checked in Butler 's presence had been roughed out and "we would probably get a burn on it, yes." He then admitted that he assumed that the one he had identified was the broach which he had checked. Later, still on cross-examination,.he was asked by Board's counsel to point out the burn marks on the exhibit. Respond- ent's Exhibit 2 has no burn marks on its face. The following testimony was then given : A. That isn't burned very badly. Q. Well , the fact is there aren 't any discernible burn marks on there at all, are there? A. Not too much, no. Trial Examiner RINGER . Well, are there any? The WITNESS. No. In view of Vreeland's evasion and his testimony indicating that the broach on which Butler had worked and which was shown to Butler had burn marks on it, we have grave doubts that the respondent's Exhibit 2 is a broach for which Butler was responsible. In addition, Rico gave confused and contradictory statements as to when he decided to discharge Butler. He said that he found out from Below on the morning of March 24 , that Butler had scrapped the broach, and that he first made up his mind on the night of March 24 to discharge him. Upon further questioning, he stated that he had decided in the after- noon about 2 or 3 o'clock to discharge him. He first said that he did not talk with anyone about the discharge of Butler either before or after the discharge. Then he stated that he thought he told the superintendent that he was going to discharge him, giving the reason that Butler had told him the night before that he was not very good on that type of work and wanted more construction work. ` Shortly thereafter, he testified that he also told the superintendent that Butler had spoiled a broach and that he had been very careless in doing it. He further testified that he "just figured, he made up his mind, he couldn't do the work." Vlisides, the night inspector , testified that the night after Butler was discharged , Vreeland came to Vlisides and told him he would like to talk to him about the broach "that Butler was supposed to scrap," and that Rico wished to talk with him. Vlisides testified that he went over and talked with Rico and Bob, that he told Rico that he had stated the night before that he had checked Butler's work and found- it satisfactory and that he would like to check it to see what the trouble was , that Rico said, "Oh no, you can't do that. We have it locked in the safe and we might have to go to court with it in the future." The Trial Examiner credited Vlisides' testimony, as do we. 2172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . We find, as did the Trial Examiner, 'that Walter Butler was dis- charged on March 24 on account of his union activities. He joined the Union the night of his discharge. He has not been reinstated. On June 2 he accepted another job, and does not desire reinstatement or back pay after June 2. Albert SJ:ipnian in March was a surface grinder on the night shift' with Bob Ferri as his supervisor. He joined the C. I. O. on or-about March 24, and wore his union button that night. It is contended by the Board that he was discharged on March 25, about 11 o'clock a. m_ The respondent contends that he voluntarily quit about 3 or 4 o'clock that morning. It is undisputed that while' on, the night shift on March 24, he scrapped three small broaches. He testified that on one he read his micrometer wrong and on the other two the machine did not operate exactly, and he showed them to Bob Ferri and after scrapping the third told Bob that he was disgusted and was going home,,that Bob said "You are not quitting ; are you?" that Shipman replied, "No, I will be back 'tomorrow night," and that Bob said "Okay." Shipman further testified that Bob wrapped the blueprints and the broaches, and put them on Rico's desk. Bob testified that Shipman came to him and said, "That is enough for one night. I quit." He also testified that he left a note to Rico stating that the broaches were spoiled and that he "may have" told Rico that Shipman had quit. He testified further that he had thought that Shipman was probably too nervous to stay. The morning of the 25th, a truck driver from the plant came to Shipman's home and said that Rico wished to see him and that he should bring his badge along. According to Ship- man, Rico asked him to go down to check his tools,,said that he had a job.to do and wanted to do it, and after they returned gave Shipman. his check; he also testified that, he told Rico that he had had a bad night, and that Rico said that sometimes it could not be helped. Rico testified that he sent the truck driver for Shipman, wanting to know what was wrong. His testimony on direct examination as to their conversation was as follows:. Q. And what did you find out when he came down? A. He came in the office. I spoke to him, said "Hello." He said "Hello." He said "I have done it and ,quit." Q. He said what? • A. "I have done it'and quit." - Q. Did you ask him for any explanation what he meant by that? A. I' did not. Q. Did. you know what he meant when he said "I done it AMERICAN BROACH & MACHINE COMPANY 273' A. I knew he went home at 3: 00 o'clock in the morning and knew he spoiled two different jobs that same night. Q. When you saw him that morning he said that you said to him "Shipman, I have got a job to do and I am going to do it." Now, what did you have reference to when you said that? A. I didn't say that. Q. You didn't say that? A. No, I didn't. Q. You did fire him though, that day? A. No, he had already quit. Q. He quit the night before? A. He quit at 3: 00 o'clock'in the morning. Q. Why did you send out after him? A. I thought maybe 'I could patch it over. When he came in, in the morning* I spoke to him and said "Hello," and he said "Hello" and then spoke right up that he quit. Then I didn't try- to do any more about it. On cross-examination he further testified as follows : Q. I understand that you called Shipman down in the morning,, on the morning which he last worked actively in the plant, in the- hope that-or, with the idea of patching up any difficulty that might have arisen before you got there? A. I wanted to know what happened. Q. You thought you could patch it over? A. I thought I could. Q. And as I understand it, Shipman didn't give you a chance, did he? A. He said-I said "Hello" first, and then he said "Hello." He. said "I went and done it, I quit." Q. He didn't even give you a chance to be nice to him? A.. He wasn't and he was, leaving when he was talking. to me. There was no argument over it. Q. The minute he said "I went and done it, I quit," you knew right away you couldn't patch it over? A. I knew he was Q. Is that right? - A. I knew he decided to quit. Q. What is that? A. I knew he decided to quit. Q. When did you know he decided to quit? A. Right then. - Q. And you didn't think any more of patching it over?, A. Then he asked me if he could go down and get his tools.- 403508-43-vol. 45-18 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. You didn't think any more of patching it over? A. No, I didn't. Light is shed on Shipman's case by the testimony of Vlisides with respect to the night of March 24, and a conversation Vlisides had with Rico the morning of March 25. It is as follows : Well, Al decided he wanted to go home that night because he said he felt too nervous to go ahead, and I suggested'to him in front of Bob that' he stick by his machine and at least get one more good piece in order to have his mental attitude perfect as he went home. Well, Al decided he wanted to go home, so he did go home. The next morning Rico came' up there, he came in the inspection room and he called me over on the side in a very nice way Rico told me that I should not have done what I did; that is, asking Al Shipman to stay to work after he decided to quit. He said, "Why don't we let the foreman decide on those things," and he looked and pointed at Bob. We find, as did the Trial Examiner, that Shipman went home with Bob Ferri's approval and knowledge that he was leaving only for that night, and that Rico Ferri, on March 25, received information from Bob Ferri as to Shipman's leaving the plant and seized upon the inci- dent as affording a plausible ground to contend that Shipman had voluntarily and permanently quit. We also find, as did the Trial Ex- aminer, that the respondent, on March 25, discharged Albert Shipman on account of his union membership and activities. Shipman testi- fied that since April 20, when he began working at another plant, he has not desired reinstatement. Ivan L. Boner was a face grinder on the night crew with Bob Ferri, his immediate supervisor. He was discharged on April 2, reinstated, on April 6, and quit on April 24. The respondent contends, that he was discharged on account of being absent without leave from March 30 to April 2. On March 28, his instructor, Adams, told him that he was to start working on the day shift on Monday, March 30. He testified that he worked on the day shift on Monday and that after- noon Rico asked him how he happened to be on the day shift, that Boner told him that Adams had asked him to work on days, and that Rico then said, "Well, we can't use you on days because we have to have this machine to do bevels with. You can start nights again to- morrow night." Boner had joined the Union before March 30. Adams testified that Rico talked with him on Monday and said that Boner would have to go back on night work because he was trying to solicit members for the C. I. O. and that "we were playing right into the C.• I. O.'s hands by keeping him on days." Rico admitted that Boner worked on the day shift only one day and that he caused him to be AMERICAN,-BROACH' & .MACHINE COMPANY - 275 -put back on-the night shift. His explanation was that "he didn't want to work days. He kicked because he went on days." Boner's testi- mony indicated no dissatisfaction with day work and Adams' testi- mony, undenied by Rico, clearly indicates a discriminatory purpose in transferring him back to the night shift.' We find that Rico caused Boner to be returned to the night shift on account of his soliciting union memberships among the employees on the day shift. Boner was ill on March 31 and April 1. He did not notify the respondent of his absence or the reason therefor. He testified that he had taken time off on approximately half a dozen previous oc- casions, without notifying the respondent, when he had been ill, and that he had never been criticized 'therefor. 'He returned on Thursday night, April 2. He testified that Bob Ferri asked him why he had .been absent, that he told Bob that he had been ill, that Bob asked him why he had not notified the respondent, and that he told Bob that it had not been customary and that he knew of no rule requiring such notice. He testified further that when he started to punch in Bob said ' that his card was not' in the rack and that the respondent would have to lay him off, and that Bob then got his check. Boner was put back to work on April 6. Rico testified that Ralph Perkins, an instructor who supervised spline grinders on the day shift, and who was ,active in the Association, asked Rico to permit Boner to return. This testimony is undenied and we find that Boner was rein- stated at the request of Perkins. He had a, conversation. with Rico on April 4, in which Rico stated that there had been a misunderstanding .and that he should return the following Monday, April 6. When he returned to the night shift on Monday, Bob Ferri, his supervisor, took him to Al Smith's machine, after Smith had asked Bob to bring Boner there. He was asked to agree to sign an affidavit that the Union had not been responsible for his return to work. It has here- tofore been found that Bob was present throughout the conversation and told Boner that he, Bob, would be inclined to sign such an affi- davit. Boner did not agree to sign an affidavit. Before Boner's dis- charge, he had worked on finish grinding, and he was returned to that work. Some time before he quit on April 24, he began to,re- ceive mainly rough grinding, and the last 3 nights had nothing but rough grinding. On Monday, April 20, he complained to Bob Ferri that he had had an understanding with Adams that he was to do finish grinding. He testified that Bob told him that he was to do rought grinding that night, that he continued for .3 nights and then ,did not return. Boner's testimony indicates that he thought that he was being discriminated against in being given rough grinding. The respondent contended that Boner was needed for rough grinding work. We find the evidence insufficient to show that the respondent discrimi- 276 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD Hated against 'Boner in assignments of work after his return on. April 6. The complaint does not allege that Boner's quitting on. April 24 amounted to a discharge. Boner does not desire reinstate- ment, and the Board's counsel indicated that back pay is not requested for any period after April 6. We find that Ivan L. Boner was dis- charged on April 2 on account of his union membership and, activity. Orville Nowlin, in March, was a surface, grinder on'the night shift, working under Bob Ferri, his supervisor. He, joined, the Union during the week before March 23. On March 31, Bob and Rico Ferri came to his machine and asked him whether he would like to instruct. Thereafter he instructed on the night shift. The record is not clear as to when he first wore his union button in the plant. At one point he testified that 'it was on April'4, and at another place he testified that it was on March 31. On Saturday, April 4, Nowlin called Bob Ferri to his machine and- told him that he was about' to be called as a student instructor in the U. S. Air Corps Technical School at Scott Field, Illinois, that he knew the respondent wished 2 weeks'- notice of leaving, that he -did not know when he would be called, that he would like to continue until he received his call, and that he would then have to leave immediately. He testified that Bob said, "All right." Nowlin's testimony as to this conversation was not denied by Bob Ferri. 'On April 6, Nowlin called Bob to his machine and told him that he had received notice that he was not selected as student instructor because his reply had not been received in time, and showed Bob the letter he had received from, Scott Field. Nowlin testified that Bob looked at the letter and that Nowlin said, "I won't be going then." Nowlin continued to instruct. On April 17, Nowlin went to Bob Ferri and found Rico talking to Bob. Nowlin asked Rico about the raise which Rico had indicated would be forthcoming after Nowlin'had instructed a while. According to Nowlin, Rico replied, "I don't have-the authority to give raises has been taken away from me," and later in the evening Bob told him that Rico had asked Bob why Nowlin was asking for a' raise when he was going to leave on Sat- urday. Nowlin asked Bob what he meant and said that it was the first he knew about leaving Saturday, and Bob said he would find' out about it. Nowlin testified further that -later that night he talked with Bob about the earlier discussions they had had with reference to leaving when he would be called to Scott Field, that he told Bob that he had assumed that when he showed Bob the letter the entire matter had been canceled, and that Bob said he would find out what would be done. • Neither Rico nor Bob denied the conversations of April 17, as testified to by Nowlin. The next day Nowlin talked further with Bob. Nowlin testified that Bob told him that he had- reported to AMERICAN BROACH & MACHINE COMPANY 277 the respondent a definite 2 weeks' notice, that it had gone through; and that it expired on April 18. Nowlin testified that he told Bob that he had not given a definite notice of 2 weeks, "since he had not known when he would be leaving, that he had thought that showing Bob the letter closed the incident, and that the fact that the position which he had expected to get was in the Army made a difference. He testified that Bob said he would talk to Rico, and that later Bob returned, saying that things stood as they were, that he had also talked to Superintendent Kent, who was of the same opinion. -Bob did not deny Nowlin's testimony concerning this conversation. On April 20, when Nowlin returned to the plant to get his tools and pay, he talked to Rico Ferri. According to Nowlin, he pointed out to Rico the indefiniteness of his original notice to Bob as to when he would be leaving, and that he had shown Bob a letter which he had ,assumed canceled the indefinite notice. He testified that Rico men- tioned that he had not asked to be reinstated, that he said to Rico, "Well, what would you say if I would ask to be reinstated?", that Rico replied, "Well, you have been more or less discontent (sic) all along," that Nowlin said, "The only discontentment I have shown is that I have used in asking you for a raise," and that Rico said, "As far as we are concerned, you are through." He testified that Rico said that he was not being fired, that he had asked to leave, that his work had been satisfactory, and that he would give Nowlin a favorable recommendation. Nowlin's testimony as to this conversation is unde- , nied. Nowlin was reinstated on May 8, after discussions participated in by representatives of the State Labor Mediation Board and Federal Mediation representatives, and was given back pay at his regular rate per hour for 80 hours, on the basis of 40 hours for each of the 2 weeks he had not worked. The respondent contends that Nowlin gave notice that he would quit on April 18, decided later that he did not wish to quit, and that the respondent, having thus been given notice, accepted it. We find the -contention to be without merit. Nowlin did not give notice he would quit on -the-18th. On April •4, -he told Bob Ferri, in, effect;-- that- he expected to be called into military service at a near but uncertain date, was notifying the respondent for its convenience, and desired to' work until he received his call. Bob approved his suggestion that'he work until called. Two days later, Nowlin told Bob that he would not be called, and continued working as an instructor. Until April 17, the respondent gave Nowlin no intimation that it considered that he had given it a definite notice that he would quit on April 18, the date when the ordinary'2 weeks' notice would expire. The respondent's position that•Nowlin was to leave on April 18, was expressed to him only after be had asked for a raise on April 17. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is clear that the respondent seized upon Nowlin 's notice of pos-, sible call into military service as a pretext to terminate his employ- ment. After it' learned that he would not be called, and after he had twice explained to Bob the indefinite and contingent nature of the- notice and his assumption that it had been canceled by knowledge that he would not be called , the respondent insisted on treating the notice as a. definite, binding resignation. This despite the fact that Nowlin was a skilled workman and instructor , that the respondent was in need of such, and that the United States Government was urging the re- spondent to produce as much as possible and as fast as possible. Under such circumstances , it is obvious that an employer would dispense with the services of such an employee only for an outstanding reason. Where production for the National war effort is paramount and skilled production workers are difficult to find, those responsible for main- taining production are not likely to dispense with capable employees for trivial reasons. There can be no doubt that the respondent con- sidered union membership and activities as important reasons for in- terference, assistance, and discrimination . The respondent's desire to be rid of Nowlin is made clear by Rico's refusal on April 20, to, permit him to - return even 'as a new or reinstated employee. There is, no reason shown on the record for the respondent's attitude toward Nowlin except his union membership and activities. We find, as did the Trial Examiner, that he was discharged on April 18 on account of his union membership and activities. Royce Poratiz was discharged on April 18 by telegram sent to his home. In its answer the respondent averred as follows respecting Porath, "This employee was discharged for disorderly conduct on April 18 and for interfering with the work of other "men. After being warned, he continued to engage in horse play and would have been discharged at once except that the foreman who was in charge of the job at that time did not have the authority to discharge him." Porath, , is an 18-year-old farm boy who was hired about December 1, 1941. , It is apparent that from the beginning of his employment he- showed a pronounced tendency, to engage in what he referred to as "monkeying around." This horse play consisted of throwing bottles, tools, and oily rags at other employees, and oiling handles of -machines when an operator was not using his machine. It is clear that he had been warned a number of times by Rico and- Bob, who both knew that he was engaging along with others in such conduct. He joined: the Union, on March 26 and openly wore his button .' He had been asked a number of times by Carstens to,join the Association but had refused ., He tes- tified that after joining the Union there was less "monkeying around'?' as "we all cut it out a little bit." He testified that on the night of April 17, about 3 o'clock in the morning, he threw an oily rag at James AMERICAN BROACH &. MACHINE COMPANY 279- Mackie, his instructor, who threw it back at him, and that Bob Ferri caught them. He further testified that early that night, about 9: 30 p. in., Bob had come to him and said that Rico wanted to see him, that he had gone to Rico, who told him that he did not want any more 'monkeying around, to get back to his machine and get to work. It is clear by his own admission, that Porath did not comply with Rico's instructions, which in effect were that he work rather than engage in horse play. Porath testified that "there was quite a lot" of throwing things about and that he and others had been told many times to stop it. When Bob Ferri caught Porath throwing a rag at Mackie, Porath started back to his machine and Bob told him that he did not want "any more monkeying around." He testified that Bob may have said more but that he did not remember. He testified, however, that Bob came into the shop later that night, "but didn't catch us monkey- ing." Bob Ferri testified that he left a note for Rico stating that Porath had continued to "fool around" and he had thrown a rag or rags; but that he did not recommend that Porath be discharged. •Porath admitted that he had engaged in this horse play along with others and that probably all of them who so engaged should have been discharged. It is clear, however, that the respondent did not discipline other employees who engaged in the same activities. It thus becomes a question whether the respondent discharged Porath because of his admitted disorderly conduct or whether his union membership and the wearing of his union button had a part in his discharge. Under the circumstances, although the matter is not free from doubt, we are of the opinion that Porath's union membership and activity played an insubstantial part in the decision to discharge him and that the evidence is not clear that his discharge was on account of his union membership or activities. We find, as did the Trial Examiner, that Porath's discharge was not on account of union membership or activity. Max Tobias. The complaint alleges that Tobias was discharged on April 19, 1942. The answer of the respondent avers that he was discharged on April 20 for insubordination. He was a surface grinder first,hired in March 1941, on the day shift. He had been transferred to the night shift in February 1942, for 2, weeks, at the end of which he returned to the day shift. , He joined. the Union March 25 and the Association about April 3. He testified that he wore his union button in the plant,for the first time on April 20.. , He,testified that on the morning of April 20 when he came to work his instructor, Below, told, him to get to work, and half an hour later Tobias heard Below; tell Rico Ferri,."He has got a union button on," and that Rico said, "Well, if we can't get along in the shop he can get the hell out of here." It is not clear whether Rico's answer was made directly to Below's com- 280 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD ment about Tobias' union button, or merely during the same conver- sation. Neither Below nor Rico denied that such a conversation oc- ,curred. Tobias testified that less than an hour later he wentto.another- machine to get a squaring block and that Rico followed him to the other machine and ordered him to come back to his machine, get to work, and not to leave it. He testified that he told Rico, "I suppose you want to fire me," and that Rico went over and got his card out of the track and said that he could get his check., - Below testified that on the morning of his discharge Tobias had -done almost no work, that he had walked around the department con- 'versing with other employees, and that, when Below asked him to go -to work, Tobias inquired "what the rush was." He testified further -that Rico later discovered Tobias' absence from his machine and in- quired where Tobias was, that when Rico approached Tobias and,talked -to him Below heard Tobias say to Rico, "fire me if you can" and Rico answer, "I am just big enough to do it." Rico testified that To- bias "asked me to fire him if I thought I was big enough to fire him. I told him I thought I was and he says, `why don't you do it?' There was nothing else to do but do it." We find that the incident occurred -as recounted in Below's and Rico's testimony. We do not agree with the Trial Examiner's conclusion that Tobias' .actions did not constitute insubordination. We find that Tobias was mot discharged because of his union membership and activity. 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 rela- tion to trade, traffic, and commerce among the several States and tend to lead to and have led 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 will order the respondent to cease and desist therefrom and to take certain affirmative action which the Board finds necessary to effectuate the policies of the Act. Implicit throughout the hearing was the contention of the respond- ent that the organizational campaign of the Union caused a slump in the production of vital war materials and that the Board, by issu- ing the complaint and conducting the hearing, increased the unsettled conditions in the respondent's plant. On the findings heretofore made, A1VIERICAN BROACH & MACHINE, COMPANY - 281_ it is 'clear that the slump in production was caused by the respond- ent's attempts to defeat the Union when it began soliciting members. on March 19 , by its assistance to the Association when dt began ,to so- licit members on March 23, and by its discrimination against members of the. Union and employees opposed to the Association during the period from March 23 to April 20. The employees of the respondent had the right to organize in any labor organization they might select, free from interference and discrimination and from assistance to any competing labor organization . What the situation would have been if the respondent had accorded its employees their rights under the law is speculative, but it is clear that when the respondent interfered, assisted, and discriminated as found hereinabove , an atmosphere of uncertainty, fear, and resentment immediately and inevitably resulted in lessened production . It is further clear that in order to assist the Association, the respondent permitted supervisory employees and in- structors to leave their places of work and relaxed disciplinary control' over its employees. We have found that the respondent dominated and interfered with the revival and administration of the Association in March 1942, and.. contributed support to it. It has been further found that the respond- ent entered into a contract with the Association on May 2, 1942, with respect to wages, -hours, and conditions of employment., In order to effectuate the policies of the Act, it.will be ordered that the respondent disestablish and withdraw all recognition from the Association as the representative of any of the employees for the purpose of collective bargaining and that the respondent cease giving effect to said contract,_ as well as to any extension, renewal, modification,.or supplement there- of and any superseding contract which may now be in force . Nothing in this order, however, shall be taken to require that the respondent, vary any wages , hours, or other substantive features of its relations with its employees which the respondent may have established in per- formance of the contract or the contract as, extended , renewed, modi-• fied, supplemented , or superseded. It has been found that the respondent discriminatorily discharged' Alfred Eckerle on March 23 , 1942, and thereafter reinstated him on April 15; that on May 18 Eckerle went on strike, and that on May 22' and at all times thereafter the respondent has refused to reinstate him. As Eckerle does not•now' 'desire and has not since June 1 desired reinstatement, we will order ' that the. respondent make him whole for the loss in , earnings suffered by him by payment to him of a sum_ of money equal to'the amount he would' normally 'have earned as; wage§ during the period from , March 23 to , April 15, 1942,, and from. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 22 to June 1, 1912, less his net earnings during that period.5 It has been found that Walter Butler was discharged on March 24 and has not been reinstated, but that on June 2 he accepted other employ- ment and does not now 'desire reinstatement. It will be ordered that the respondent make him whole for the' loss in earnings suffered by him by payment to him of a sum of money equal to the amount he would normally have received as wages during the period from March 24 to June 2, less his net earnings during that period. It has been found that Albert Shipman was discriminatorily discharged on March 25 and that he has not been reinstated, but that on" April 20 he obtained other employment and does not now desire reinstatement. We will order that the respondent make him whole for his loss in earn- ings by payment to him of a sum of money equal to the amount he would normally have earned as wages from March 25 to April 20, less his net earnings during that period. It has been found that Ivan L. Boner was discriminatorily discharged on April 2, was reinstated on April 6, and voluntarily quit on April 24. We will order that the respondent make him whole for his loss in earnings by payment to him of a sum of money equal to the amount he would normally have earned as wages from April 2 to April 6, less his net earnings during that period. It has been found that Orville Nowlin was discriminatorily discharged on April 18, 1942, and was reinstated on May 8 and given back pay at his regular rate per hour for 80 hours, being the regular 40-hour week for each of the 2 weeks he had not worked. The evi- dence shows that during that period the respondents' plant was oper- ating on an overtime schedule and that had Nowlin not been dis- charged he would have earned overtime pay. We will accordingly order that the respondent make him whole for his loss of earnings by payment to him of a sum of money equal to the amount he would have earned as overtime-pay wages from April 18 to May 8. Upon the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricul- tural Implement Workers of America (UAW-CIO), and American Broach Employees Protective Association are labor organizations within the meaning of Section 2 (5) of the Act. 6 By "net earnings " is meant earnings less expenses such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See iMatter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2J90, 8 N. L. R. B. 440. Monies re- ceived for work' performed upon Federal, State, county , municipal, or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., .311 U S. 7. AMERICAN BROACH &.-MACHINE,' COMPANY 283 -2. By -dominating and interfering with the revival and adminis- tration of American Broach Employees Protective Association, 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 hire and tenure of employ- ment of Alfred -Eckerle, Walter Butler, Albert Shipman, ' Ivan L. Boner, and Orville Nowlin, thereby discouraging membership in the Union and encouraging membership in the Association, the respond- ent has engaged in and is engaging in unfair labor practices 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 -respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 5. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. - ^6. The respondent-has not-discriminated in regard to the hire and tenure of employment of Royce Porath and Max Tobias. ORDER Upon the basis of the foregoing 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 re- spondent, American Broach & Machine Company, Ann Arbor, Michi- gan, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of the Association or the formation or administration of any other labor organization of its employees, and from contributing support to the Association or any other labor organization of its employees; (b) Recognizing the Association as the representative of any of its employees for the purpose' of -dealing with the _respondent'-`con- cerning grievances, labor disputes, wages, rates of pay, hours of em- ployment, or other conditions of employment; (c) Giving effect to the contract of May 2, 1942, with the Asso- ciation, or to any extension, renewal,, modification or supplement thereof, or to any superseding contract with said organization which may now be in force; (d) Discouraging membership in International Union, United, Automobile, Aircraft and Agricultural Implement Workers of Amer- ica (UAW-CIO) or encouraging membership in American Broach Employees Protective Association or any other labor organization 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' -of its employees by discriminating in regard to their hire and tenure of employment; (e) 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 rep- resentatives of their own choosing and to engage in concerted activi- ties for the purposes 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) Withdraw all recognition from and completely disestablish the Association as the representative of any of its employees for the pur- pose of dealing with the respondent concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or other conditions of employment; I .(b) Make whole Alfred Eckerle, Walter Butler, Albert Shipman, Ivan L. Boner, and Orville Nowlin for any losses in earnings they may have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to that which each would have normally earned as wages during the period of the respondent's discrimination as to him, less the net earn- ings of each, if any, during that period; (c) Post immediately in conspicuous places throughout its Ann Arbor plant, and maintain for ti period of at least sixty (60) con- secutive 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), (c), (d),,and (e) of this Order; (2) that it will take the affirmative action set forth in paragraphs 2 (a), and (b) of this _Order; and (3) that the employees of the respondent are free to become or remain mem- bers of International Union, United Automobile, Aircraft and Agri- cultural Implement Workers of America (UAW-CIO),'and that the respondent will. not discriminate against any employee, because 'of membership in 'o; on behalf of that organization; (d) Notify the Regional Director for the Seventh Region in writ- ing within ten (10) " days from the date of this Order what steps the respondent has taken to comply herewi f th. IT Is FURTHER . ORDERED that the complaint be, and it hereby i , , dis- missed insofar as it alleges that the respondent discriminated in re- gard to the hire and tenure of Royce Porath and Miix Tobias. Mn. GERARD D. REILLY 'took no part in the consideration of the above Decision and Order.