Western Land Roller Co.

In the Matter Of CHARLES, ARTHUR, GEORGE, PAUL, CLARENCE, VANCE, VERN, ANNE, ALICE, EDNA, AND LILLY BELLE ANDERSON AND EDSEL AND MRS. J. B. GLASS, A PARTNERSHIP, DOING BUSINESS AS WESTERN LAND ROLLER COMPANY and INTERNATIONAL ASSOCIATION OF MA- CHINISTS, LOCAL No. 1394, AFFILIATED WITH - THE AMERICAN FEDERATION OF LABOR Case No. C-0338.Decided November 18, 1942 Jurisdiction : agricultural implement manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coei cion: surveillance of union meetings ; cir- culation of a misleading statement of rights of employees under the Act. Discrinoitation: discharge of employee because of union membership and ac-, tivity ; charges of, dismissed with respect to another employee. Remedial Orders : cease and desist unfair labor practices; reinstatement with back pay awarded. DECISION AND ORDER On September 15, 1942, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondents, had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and that they take certain affirmative action, as set forth in the copy of the Intermediate Report annexed hereto. Thereafter, the respondents and the Union filed exceptions to the Intermediate Report, and the respondents also filed a brief in support of their exceptions. Neither the respondents nor the Union excepted to any -of the rulings,made by the Trial Examiner at the hearing; the Board has considered the Trial Examiner's rulings and finds that no prejudicial error was committed. The rulings are hereby affirmed. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board at Washington, D. C., on October 27, 1942. The respondents and the Union were represented by counsel and participated in the hearing. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the 45 N L. R. B., No. 97. 638 WESTERN LAND ROLLER COMPANY 639 findings, conclusions, and recommendations made by the Trial Ex- aminer, with the exceptions and additions noted below. 1. The Trial Examiner has found that Foremen Walker and Stephenson spied on employees of the respondents who were at- tending union meetings. With respect to Walker, the evidence of surveillance of union meetings is substantial, and we agree with and sustain the Trial Examiner's finding. Coincidence alone is not enough to explain the frequency with which Walker was seen near the union hall when meetings were being held. With respect to Stephenson, however, we believe that the evidence of his presence near the union hall, while it warrants some suspicion as to the reason for his being there, is not sufficiently substantial to sustain the Trial Examiner's finding. We find that the record does not establish that Foreman Stephenson engaged in surveillance of union meetings. 2. The Trial Examiner has found that certain anti-union statements made by Ralph Cowley, working foreman on the night shift in the machine shop, did not constitute unfair labor practices on. the part of the respondents. The Union took no exception to this finding. While we do not agree with the reasons assigned by the Trial Ex- aminer for his view, we agree with his conclusions, since we are not persuaded that Cowley either had or was exercising supervisory au- thority when he made the statements in question. 3. The Trial Examiner has found, and we agree, that the respond- ents discriminatorily discharged George A. Post on November 18, 1941, because of his union membership and activity. The respondents, in their brief, have abandoned the defense of res judicata previously urged by them. They do, however, contend in their exceptions that Post was discharged for insubordination. We find that the record contains no substantial showing of insubordination on Post's part, and that insubordination was not in any event the reason for his dis- charge by the respondents. We are convinced that Post was in fact discharged because of his union membership and activity, and we base this conviction on the facts found by the Trial Examiner and also on the following testimony by Post, which is not mentioned in the Inter- mediate Report. Post testified' that in March 1940, when he began work for the respondents, George Anderson asked him about his previous experience; that Post told Anderson at the time that he had worked for the Union Pacific Railroad; that Anderson then com- mented that Post must have belonged to a union ; and that, when Post said that he had, Anderson warned him, "Well, don't bring the union in here." Anderson was the representative of the respondents who, on November 18. 1941, discharged Post. Anderson denied the statement attributed to him by Post, but the Trial Examiner con- 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sidered Post a credible witness, and we therefore credit his testimony in this instance and find that Anderson made the statement in question. 'Upon the entire record, including this testimony, we find, as did the Trial Examiner, that the respondents discharged George A. Post, on November 18, 1941, because of his union membership and activity. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National. Labor Relations Act, the. National Labor Relations Board hereby orders that the respondents, Charles, Arthur, George, Paul, Clarence, Vance, Vern, Anne, Alice, Edna, and Lilly Belle Anderson, and Edsel and Mrs. J. B. Glass, a partnership, doing busi- ness as Western Land Roller Company, Hastings, Nebraska, and their agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Association of Ma- chinists, Local No. 1394, affiliated with the American Federation of Labor, or any other labor organization of their employees, by dis- charging, laying off, or refusing to reinstate any of their employees, or in any other manner discriminating in regard to the hire or tenure of employment or the terms or conditions of employment of their employees ; (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of right to self-organization, to form join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection, as guaranteed in Section- 7 of the National Labor Relations Act. 2. Take the following affirmative action, .which the Board finds will effectuate the policies of the Act : (a) Offer to George A. Post immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (b) Make whole George A. Post for any loss of pay he may have suffered because of the respondents' discrimination against him by payment to him of a sum of money equal to the amount which he would normally have earned as wages from November 18, 1941, to the date of the respondents' offer of reinstatement, less his net earnings during said period; (c)- Immediately post in conspicuous places throughout their plant in Hastings, Nebraska, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to their employees stating:'(1) that the respondents will not engage in the conduct from WESTERN LAND ROLLER COMPANY 641 which they are ordered to cease and desist in paragraphs 1 (a) and (b) of this 'Order; (2) that the respondents will take the affirmative action set forth in'paragraphs 2 (a) and (b) of this Order; and (3) that the respondents' employees are free to become or remain members of Inter-' national Association of Machinists, Local No. 1394, affiliated with the American Federation of Labor, and that the respondents will not dis- criminate against any employee because of membership in or activities on behalf of that organization; (d) Notify the Regional Director for the Seventeenth Region in writing within ten (10) days from the date of this Order what steps the respondents have taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint, insofar as it alleges that the respondents discriminated in regard to the hire and tenure of. employment of Lyle Kaufman, within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed. INTERMEDIATE REPORT Mr. Eugene R. Melson, for the Board. Messrs. Charles E. Bruckman and Lawrence S. Dunmire; of Hastings, Nebr. for the respondents. Mr. Ray S. Roth, of Omaha, Nebr. for the Union. Upon an amended charge duly filed on July 23, 1942, by International Asso- ciation of Machinists, Local No. 1394, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its complaint dated July 23, 1942, against Charles, Arthur, George, Paul, Clarence, Vance, Vern, Anne, Alice, Edna, and Lilly Belle Anderson, and Edsel and Mrs. J. B. Glass, a partnership doing business as Western Land Roller Company, Hastings, Nebraska, herein called the re- spondents, alleging that the respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notices of hearing thereon were duly served upon the respondents George A. Post, one of the dischargees herein, and the Union. With respect to the unfair labor practices, the complaint alleged in substance : (1) that on or about' July 29, 1941, the respondents discharged and have since refused to reemploy Lyle E. Kaufman and that on or about November 18, 1941, the respondents discharged and have since refused to reinstate George A. Post, because they had engaged in concerted activities with other employees of the respondents for the purposes of collective bargaining and other mutual aid and protection ; (2) that the respondents by these and other specified acts 2 interfered 'Service was made upon Charles Anderson, one of the partners and general manager of the partnership firm and a general appearance was entered by counsel for the parties. 2 These allegations, in substance, were that the respondents : (a) intimidated and threat- ened with discharge their employees who sought to affiliate or affiliated with the Union; (b) warned employees who sought to affiliate or who did affiliate with the Union that they would be demoted or suffer other penalties, and have demoted or otherwise penalized certain employees pursuant to such threats and warnings; (c) intimidated, harassed and threatened then employees because they wore union buttons or pins and because of their 493508-43-vol. 45-41 642 DECISIONS OF, NAT[ONAL, LABOR RELATIONS BOARD with, restrained and coerced their employees in the exercise of, the rights guar- anteed in Section 7 of the Act, , On,.Julyi 31, 1942, the respondents filed their answer, in which,, among other things, they,deriied the material allegations of the complaint with respect to' the unfair labor practices., ' Pursuant to notice, a hearing was held at Hastings, Nebraska, from August 3 through August 7, 1942, before-the' undersigned, the Trial Examiner' drily desig- nated by the Chief Trial. Examiner The, Board and the., respondents, were represented .by, counsel, and the Union by a representative All participated in the hearing and full opportunity to be heard, to examine ai1d cross-examine. witnesses, and to introduce evidence bearing on the' issues was afforded all parties. At the opening of the heating counsel for the' i espondents moved' that the allegations of'the complaint^be made more definite and certain, and,that a continuance be granted The undersigned ruled that Boaid's counsel furnish the respondents with the naives, of respondents' officers who allegedly engaged in the conduct set,forth in paragraphs 6 (a) to.(h) of the complaint, and denied the motion for :i centliimince, ,tating'that a ful'thei inotion'foi a continuance vrould be entertained at the close of 'the Board's case This motion requesting a continuance of one-half day'for further preparation was subsequently made and granted. At the opening of the respondents' case, counsel moved to amend their answer to allege by way- of aflirinati've defense that Gem go A. Post, muted in the complaint as having been discrnuuial0111y dischiuged. and presented it similar claim before the Board of Appeals Tribunal of the Nebraska Division of Placement anll Uiieniployweiit Insuiancei; that after a hearuig. the decision of the tribunal was rendeied holding that l'ost had trot been d iscliaiged for-union rctivities; and that since no appeal was taken from the decision to the State courts the question was ice judicafu- The 'undersigned permitted the aineiidl- went ' Tlie Board's motion to conform the pleadings to the proof,* insofar as errors as to names oc dates were concerned. was granted without objection Upon the recoi'd thus made and iiom his observation, of the witnesses, the undersigned snakes, 'in addition to the above, the following specific findings cif fact: - - . I FINDINGS OF FACT -' - I TIM I1USrNESS' OF'TIIE RESPONDEN'TS' -' '1'heirespondenls, a partnership, are engaged in the manufacture, distribution, and sale of land rollers, hay rakes, and other, farm machinery, at Hastings, Nebraska During the yeai of 194,0 they purchased approximately-95 percent of the raw materials and supplies used in their business in States of the United States other than Nebraska and caused them to be transported to their Hastings, Nebraska plant During the same period they mauutactured, sold, and .there- after caused to lie transported about 90 percent of their finished products, of a total value of approximately $0(10,600 to points in other States of the United States. The accounting figures,reliting'to the business were not available, for the current year The respondents testified that the, volume of business had decreased but that the percentage of their nitetstate purchases of raw materials membership in ind actin sties on behalf of the Iii ion ; (d) prefei i ed charges of mconipetenci and infraetioii , ol company rules' i iiiiist their emolo,yees lor.Ilie ieason that they sought to afhlrale or did athiate with the union , Ic) made statements pieludici ,ll to of derogatori of the, thuon Intl the nienibers and leaders thereof, ( t) caused then eniployees'-to be watched and spied ' upon H ith the poi pose ut gaining intoi nation concei ping membei ship in and attiNiiii's on behalf of the Union ; ( g) nuuntarned surveillance over membeis of th, Iimos , and ( it) caused then employees to he quiz'ed and questioned concerning their memheishq > in and activities on behalf of the Union - . WESTERN- LAND ROLLER COMPANY 643, and sales of finished' products, 'as'above stated, are currently' substantially the same as for the year of 1940 II. THE ORGANIZATIONS INVOLVED - •-- ' International Association of Machinists, Local No. 1394, affiliated with the Amer lean Federation of,Labor, is a labor organization admitting to membership employees of the, respondent., III. THE UNFAIR LABOR PRACTICES 'A' Baclogr'oand of labor ielaionx' i the plant The Union involved in the present proceedings began its organizational activities among the employees in the respondents' machine shop in July 1941. Previously some of the employees in the respondents ' foundry had joined Local_ 136 of the International -Molders & Foundry Workers Union of North America, affiliated with the American Federation of Labor Following considerable nego- tiations, the respondents in. February 1941 entered into a, collective bargaining, agreement with the Molders. , In the ear IN, part of Sept ember 1941, the holders stiuck a nd the phrit operations, were suspended . for about 8 days The strike, was, settled on September 13,,, 15111, by a n agreement between the nuddors and the respondents Subsequently,, the respondents questioned the inn jority stati of the Molders and filed aI petition with,the Board for an election to determine the majority • This petition war dismissed by the Board and on )larch 23. 1942, the respondents by letter informed the Moldera that the Board had denied their petit ion and offered to negotiate with the, Molders On April 9. 1942 , the Molders and the respondents entered into an agreement of settlement it) Caae NViI-C-886 based upon changes filed by the Molders Union which settlement was approved by the Regional Director of the Board and provided for the posting of the approved form of notice by the respondents , and the withdrawal of the charges filed with .-the Boa rd by the Molders The required form of notice was duly posted and the Molders Union. has continued to be recognized as the collective bargaining representative of the foundry employees in the plant. - - As aforementioned, the Union in the,nistant case began organizing the niachine' shop employees in July 1941 On or about January 27, 1942, a-conseiit election i was held and. a vote for or against the Union was taken ' according to -the Regional Director's report on the , elect ion there were 35 employees . eligible - to vote, 35 ballots were cast; and 1 ballot was challenged - Fifteen -ballots were in faro' of the Union and 19 against , B Interfeieiiee, restraint and coercion i , . The 1n1-4t tln'ee meetings 'of t he Union were held on July 10 , 19, and '26, 1141' George Post testified'that on the night'of July 16,about 15 niinntes before the' uiiion meeting opened , he saw-Foreman John Walker walking along the sidewalk in front of the entrance- to the 'stairwav leading to the union Ball: ' that Walker proceeding to the intersecting street and then crossed the street and'continued walking back on the ' sideNialk on the opposite side of the street' until -lie'reached a point opposite to the entrance of the hall, at which place he remained standing for 15 or,20 minutes. Lyle Kaufman testified that after the meeting on the same night,rrhe observed: :Walker walliiplg slowly on the opposite side.of'mthesti^eet and that he was looking toward the stairway leading from the meetiug'liall as S 644, DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees left the meeting . Post also testified that on July 19, the night of the second meeting, one of the other employees called his attention to the fact that Walker was on the other side of the street, opposite to the entrance of the meeting hall, and that he, Post, glanced over and saw him but that he could not recall whether Walker was standing or walking at the time. Post further testified that on the afternoon of July 26, 1941, handbills had been distributed outside of the plant announcing a union meeting at the Labor Temple that night. Post attended the meeting and was informed by another employee in the hall that Wesley Stephenson , the foreman of the machine shop, was sitting out in front in a parked automobile. Post, according to his testimony, then went downstairs and saw Stephenson sitting in a car parked about 15 feet from the entrance of the stairway leading to the hall. Elmo Hofferber, an employee, testified that he attended meetings regularly after signing a membership card on August 9, 1941, and that after the fourth or fifth meeting following August 9, 1941 , which would place it in September, he saw Foreman Walker standing on the sidewalk 25 or 30 feet from the entrance to the union hall. He also testified that two or three meeting nights later, which would be later in September, he saw Foreman Stephenson sitting in an auto- mobile which was parked about 25 feet from the entrance to the union hall before the meeting opened , and that after entering the hall he told Post that he had seen Stephenson . Since Post and Hofferber were the only union witnesses who testified concerning Stephenson 's - presence, the undersigned finds that Stephenson was present near the meeting hall on some date in September 1941 rather than on July 26, 1941 , as testified by Post. Both Walker and Stephenson admitted in their testimony that they may have been present on the occasions testified to by other witnesses . Walker further testified that he frequently visited the cigar store under the Labor Temple to see the baseball scores, and also a tavern across the street , both of which places were frequented by many of the plant employees. Hastings is a small city and the evidence shows that the location of the premises occupied , in part, by the Labor Temple was in the center of the business and amusement district of the city. Both of the foremen testified in substance that if they were present on the occasions above mentioned they were not there to observe or check the presence of employees at union meetings ; that they had never been requested to observe union activities partic- ipated in by employees ; and that they had never reported any such activities to, the officials of the company. Because of the location of the Labor Temple, it is conceivable that both Stephenson and Walker might have been accidentally in the neighborhood at or about the times union meetings were held . However, Walker was seen too fre- quently in the close proximity of the meeting hall on meeting nights, in a position to observe and apparently observing which employees were attending the meetings to warrant a belief that his presence was merely a coincidence . The statements made by Stephenson to Post just prior to the latter's discharge on November 18, 1941,8 indicate to the undersigned that Stephenson had an interest in determining who, among his employees , were prominent "in the gang thats running around." A consideration of the facts above discussed , together with all of the evidence in the record, convinces the undersigned that Walker and Stephenson were spying on employees of the company who were attending union meetings . Since Walker and Stephenson were departmental foremen, the respondents are responsible for their unlawful acts. 3 See Section III C, below. WESTERN LAND ROLLER COMPANY 645 On or about September 16, 1941, three days after the Molders' strike had been settled, the respondents attached copies of the letter set forth below ` to the time cards of all employees: Paragraph 2 of this letter purported ' to contain a brief statement of the rights and obligations of labor organizations and employers. The statements in the letter fail to set forth fairly, or even by implication, that a duty exists on the part of the employer under the Act to enter into negotiations and discuss freely with the employees' representative those matters which may properly be included in a collective bargaining agreement. The letter, as written, obviously implies that no duty to bargain with the employee representative is imposed on the employer under the Act and further indicates that the employer could and probably would refuse should a majority of its employees in an ap- propriate unit designate a representative to bargain collectively for them. In effect it states that an organization among the employees would be futile since the main purpose of such an organization would be to bargain collectively on behalf of the employees. Since this letter was given to the employees at a time when they were attempting to organize a labor organization the effect of such letter would undoubtedly tend to discourage such organization thereby constituting inter- ference,-restraint, and coercion within the meaning of Section 8 (1) of' the Act.` Additional evidence was offered concerning other matters allegedly consti- tuting other acts of interference, restraint and coercion. Ralph Cowley, working foreman on the night shift in the machine shop, freely discussed union affairs 4 To OUR EMPLOYEES : Some of our employees have asked us to advise them regarding their freedom to join or to refuse to join a labor union. The following is being sent to all of our Employees in response - to these inquiries: 1. Each employee has the right to join or to refuse to join any labor union , as he pleases. This plant will continue to be operated as a plant where any man can work and where he will receive equality of treatment-whether he belongs to a labor union or not. 2. The, Company will respect the rights of its employees under the Wagner Act and otherwise, and the Company expects every employee to respect the rights of every other employee and the rights of the Company. It is the right of every employee to join a labor union and it is the right of the labor union to request a contract giving preference to its members -and it is the right of the Company to refuse any such request. The Supreme Court of the United States held , with respect to the Wagner Act; The Act does not compel agreements between employers and employees . It does not compel any agreement whatever . It does not prevent the employer from "refusing to make a collective contract and hiring individuals on whatever terms" the employer "may by unilateral action determine." 3. The solicitation of labor union memberships on the Company 's property or during working hours cannot be permitted. There is no right in anyone when soliciting labor union memberships , at any place, or at any time, to coerce anyone or to make any misrepresentations to anyone. Each employee in our plant is entitled to exercise his own independence of judgment free from coercion of any source. 4. The foregoing is stated directly and concisely so that there can be no feeling in any employee' s mind that , he needs do anything he does not want to do ,-one way or another. We are all going to continue to live together and work together for a long time and all that the Company asks is that its relations with each of you continue to be har- monious and pleasant-whether you choose to belong to a labor union or whether you choose not to belong to a labor union. It is only thus that we can do the best by each other ' Yours very truly, WESTERN LAND ROLLER COMPANY, By /s/ CHAS. ANDERSON. See In the Matter of Roberti Brbihers, Inc, and Furniture Workers Union, Local 1561, 8 N. L it. B. 925. -646 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD iwith,some of the six or seven men .on the shift.allof whom were,union mem- bers.,"_" These conversations in which he made numerous anti-union statements apparently continued from August, 1941 to January 1942. Cowley testified that occasionally one of the men would leave his work, come over to his machine, and start a .conversation concerning union matters. In his testimony Cowley stated positively that he had informed the men that he was only expressing ..his personal opi8ions>and had never held any conversations with higher repre- sentatives of mamlgement concerning the company's policy pertaining to union ., affairs. Rowe, a fellow employee with whom most.,of these conversations were ,held,, admitted i in his testimony that lie had understood Cowley- was stating only, his personal convictions. The men on the shift apparently regarded Cowley, as, a friend rather than a boss. Under the circumstances the under- signed finds ,that the respondents should not, be chargeable for the statements of Cowley. Van Lengen, an employee in the wood-working shop, testified that in the fall of 1941 he overheard parts of a private conversation engaged in between, Superintendent Anderson and Louis Dick,•his foreman, in which both supervisors amide statements indicating their, anti-union bias Meester, another employee who was present in the wood-working shop at the time of the alleged conversation failed to corroborate Van Lengen's version concerning the anti- union character of the supervisors' remarks Loth Anderson and Dick denied - having made„the statements attributed to them and Meester's version of the conversation fails. to corroborate Van. Lengen's testimony. The undersigned credits the denials of Anderson and Dick. The undersigned finds that by watching and spying upon its employees with the purpose of gaining information concerning membership in a labor organiza- tion, by sending a letter to its employees informing them that organi;ring' into a liibor organization would be of no beneht to them, :irid'by discharging George A Post,for engaging in union activities," the respondents h1 ive'interfered with, 're- ,,-strained. and coerced their employees in the exercise of rights guaranteed in Section 7 of the Act - - C The discharges - The complaint alleged that the respondents discharged Lyle Kaufman on or about July 29, 1941, and George A Post on or about November 18, 1941, and thereafter refused to reinstate them because of their membership in and activities-on behalf of, the Union. Respondents' answer, as amended, admitted that Kaufman 'and Post were discharged at or about the'times alleged, denied that the terminations were based on union membership or 'activities, and al- leged in defense that Kaufman was'-discharged Because of inefficiency and Post -because of a wilful violation of company rules The amended answer also alleged a special defense of res jiidwcata as to the discriihinlttory discharge of George A. Post, because of the failure of the latter to take an appeal from a decision of the Nebraska Division of Placement and Unemployment Insurance Commission, holding that Post had not been discharged by respondents for engaging in-union activities 1. George A. Post _ (a) The special defense The defense of ?es jadtcata will first be considered Shortly after Post-had been discharged lie filed a claim with the Nebraska Division of Placement and Unemployment 'Insurance Commission alleging that his discharge was based on union activities A hearing was held before the above-named commission and Post's claim was disallowed The attorneys for the respondents contend a See Section III C below r :1 0 WESTERN LAND ROLLER - COMPANY 647 that'since'an-appealfrom'the decision to the State Courts, was not ,taken, the matter is ies'judicata and that, therefore, the allegation of the compla int herein pertaining 'to Post should be dismissed. Section 10 '(a) of the Act reads as follows : - The Board is empowered,'tas hereinafter provided,' to prevent any "person fron,engaging in any unfair labor practice (listed in Section 8) affecting commerce • This power shall be exclusive and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise. 1 From the above, the undersigned concludes that the defense of, re-s • jrtdicata cannot be sustained.' ,t, (b) The alleged violation of company•rules- Post commenced his employment with the respondents on March 7, 1940 as f welder, and continued to work as it welder except for short periods when the welding work was light and he was given. temporary employment on other kinds of work in the shop. Post started to _work, ,it-,40 cents pet hour. On January 16, 1941, he received an increase to 44 cents per hour, on February 14, 1941, another increase to 48 cents per liour, and on September it; 19-11, an in- crease to- 53 cents per, hour which latter rate'lie continued to receive until his discharge on November 18, 1941 He, at all times, workedunder •Wesley Stephen- son, foreman of the machine shop. • 1 „Post was an active member of -the- Union and became a member of the shop committee,at the 'first, organizational, meeting on July 16, 1941 On November 10, 1941, he,was elected chairman of the shop committee 'For over it month prior to his discharge°1-_e wore his union button openly around :the plant- On November 18, 1941, he was discharged;by George Anderson, the plant super- intendent, allegedly. because he had welded it broken' bicycle fork, in the shop, for a fellow employee, contrary to a rule in the plant. This rule, according to the testimony of Superintendent Anderson, provided that no work other than regular plant work could be performed by any, employee without obtaining it written shop order at the office, or express permission from Clrarles_', 'Arthur. or George Anderson, the active partners in the business - • Post testified that it few clay, prior to November 6, 1941,-he found a broken bicycle fork on his welding bench: It, remained there until November 6, 1941; when_am_employee•of the foundry whom Post knew only as "Smitty" approached him at noontime. and, told him that the •bicycle fork belonged to hint and re- quested Post to weld it. Shortly after 5 o'clock, when his clay's work was finished, Post spent S nunuteq time in welding the fork Foieman Stephenson admitted that he had seen the bicycle fork lying on Post's bench but that he had made no inquiry of'Post concerning it at-the time. On November 17, 1941, and a week after Post had been elected cliairinnn of the Union's shop committee, Stephenson approached him and questioned him about the repairs on the bicycle fork as follows • ' Q Can you relate the conversation? A. Yes. - Q. Will you relate it, please? A I was talking-it ds as about 20 nunutes of 5 :,00 I was in quite a hurry, and I had quite it few-plates in the 'furnace and wanted to get them' out before 0, - :',The purpose of the shop order was to insure that the time spent on the job'and the materials used would' be enleied on the shop order, in order that the office might fix the cost in cases where brlla were to be iendered for the work 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quitting time, because they ordinarily will warp in the furnace if they are not taken out, and I had quite a few of them left. Mr. Stephenson met me out by the oil baths and he said, "Did you have'a bicycle fork on your bench a short time ago?", and I said, "Yes." And he asked whose it was, and I says it belonged to "Smitty" in the foundry, and he said, "You know, you aren't supposed to do jobs without work orders?", and I said, "I know." I said, "I did it after working hours, because I figured it wouldn't need a working order after the plant orders." And he says, "Is `Smitty' one of your friends?" I says, "Yes, he is." He says, "Is the Andersons any of your friends?" I said, "Yes, anyone that I can do a favor for is my friends." He said, "You're a damned liar. The Andersons can't be your friends the way you are acting here recently." I says, "Yes, I think they are." He says, "You are getting to be quite a, gangster around here." "Well," I said, "I wouldn't say that." He says, "You are quite a gang leader," and I says, "I don't believe I would call anyone a gang leader." And he, says, "It seems as though that you have quite a bit to do with the gang that's running around here-quite prominent." I didn't know just what to say. It was getting close then to 5: 00 o'clock, so I figured shutting off the furnace, so I continued to walk off without any further argument, and Mr. Stephenson went on, and I shut the furnace off and left right at 5: 00 o'clock. Stephenson's testimony regarding the above conversation with Post, in part, agreed with Post's version ; but Stephenson denied that he had implied that Post was a gangster or that anything was said concerning gangsters in his conversa. tion with Post ; and further said that he had requested Post to go to the office and inform Charles Anderson as to what he had done. Post denied that Stephen- son had requested him to report the matter to Anderson. On November 18, 1941, at 8' 30 a. in., George Anderson came to Post's bench and, according to Anderson's testimony, asked Post if he had welded the bicycle fork, and when Post answered that he had, Anderson said "You're fired" and told him to get his check. Anderson also testified that he had never known of any other violations of the "Rules," and that no employee had ever been disciplined for such a breach before. Neither Stephenson nor Anderson made any inquiry concerning the nature of the welding job, or whether or not it had been done on company time. The summary dismissal of Post under the circumstances related above, lends credence to Post's testimony that Stephenson accused hiin of being quite prominent "with the gang that's running around here." It is obvious that Stephenson's reference to the "gang" was a reference to the Union. Accordingly,- the undersigned accepts Post's version of the conversation with Stephenson. It must be determined whether the respondents discharged Post for his un- denied failure to observe the rule, or for his union activities. First, the seriousness 'of the infraction will be considered. The repair on the bicycle fork was a minor job requiring only 5 minutes' time.' It was done outside of working hours, and obviously from the nature of the repair would involve a very small use of the respondents' materials. The broken bicycle fork remained openly displayed on Post's bench for several days, where Stephenson saw it, and it can be presumed that Stephenson knew it was there for repair. However, he made no inquiry concerning it until a week after Post had been elected chairman of the Union's shop committee. It is apparent that Stephenson, on the night before Post's discharge, accused him of being prominent "in the gang." The l WESTERN LAND ROLLER- COMPANY 649 respondents' plant is a relatively small plant ; Post had been wearing his union button in the plant for a considerable period ; and it is a fair inference from Stephenson's remarks to Post that the respondent knew that Post was taking a prominent part in union activities. The letter attached to the employees' time cards on September 16, 1941, and discussed in Section III B above, clearly shows respondents' anti-union bias and indicates an intention to interfere with the rights of employee to organize as above found. The respondents raised no con- tention in their answer or by evidence offered during the hearing that Post was inefficient. The numerous raises in pay which were given him clearly establishes that he was a competent employee. - Under the circumstances, such a minor breach of a rule by an employee shown by his record to'be a competent workman would normally have been condoned, or passed with only w reprimand or a minor penalty. The respondents made no in- vestigation concerning the extent of the claimed violation of the rule and afforded no opportunity to Post to explain or defend himself, but summarily discharged him. The lack of any satisfactory explanation for the unusually severe treatment accorded Post convinces the undersigned that the respondents' treatment was due to the activities of Post on behalf of the Union. The undersigned finds that the respondents have discriminated in regard to the hire and tenure of employment of Post, because of his membership in and activities on behalf of the Union, thereby discouraging membership in the Union, and that by such action the respondents have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Lyle Kaufman - Kaufman entered upon his employment with the respondents on October 17, 1940, as a drill press operator on the night shift. He worked on this shift until the early part of March 1941, when he was transferred to the day shift. He continued on the day shift until his discharge on July 29, 1941. On Febru- ary 14, 1941, his pay was increased from 35 cents per hour to 39 cents per hour, at which time a general pay raise was given to all employees. He con- tinued to work at the latter rate until his discharge. In the early part of July 1941 the Union commenced an organizational campaign among the employees in the respondents' machine shop. On July 16, 19, and 26, 1941, and thereafter, union meetings were held in the Labor, Temple at Hastings, Nebraska. These early meetings were attended by a numl ber of the employees, among whom was Kaufman. At the July 26 meeting, Kaufman signed an application card for membership in the Union. He was not elected to any union office, but participated actively in soliciting other employees to join the Union. On July 28, 1941, he was discharged by Wesley Stephenson, the machine shop foreman. Kaufman asked Stephenson why he was being discharged and, according to Kaufman's testimony, he was told by Stephenson to walk over and look at the castings on the scrap pile.- Kaufman did so and on the top of the pile he saw some castings that he had drilled on the previous day. Kaufman testified that he did not examine the castings carefully, but admitted that some of the holes in these castings had been drilled at a wrong angle. Stephenson testified that Kaufman had used too large a drill8 and that about 40 castings were spoiled and had to be scrapped. 8 The castings , after the drill press operators finished their operations , were then delivered to other employees who tapped and drilled the holes previously drilled on the drill presses. The latter operation was a threading operation designed to permit oil and grease cups or other fittings to be screwed on to the castings . If the original holes were drilled too large they could not be threaded and the castings would have to be scrapped. 650 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD Kaufman admitted that on one - other occasion he had used an oversized drill and spoiled some castings , but claimed that the percentage of his spoiled work ran no higher than that of i other,. drill. pressmen Cowley; the working fore- man on the night shift, testified that Kaufman, while -working on that shift, had frequently used , oversized drills and that - he had : reported- the matter to Stephenson . Stephenson then transferred Kaufman to the ^ day shift , stating to. Cowley that in that way he could give Kaufman ,closer , supervision . Stephen- son testified that Kaufman continued to make errors in selecting drills of the proper size-and that he spoiled nearly-five, times as much work as any other drill' press operator. During the early part , of July 1941 , Stephenson went on his vacation and Sam Young, a lathe operator , assumed Stephenson's duties during the latter 's absence. Young testified that Kaufman , while working.for him, had spoiled some castings , in the same manner. After Stephenson returned from his-vacation, he testified that on,July_28 he was called over to,the tapping bench, , where; he was shown a batch of-castings that had 'just been delivered by Kaufman . All of these castings had been drilled by an oversized drill and had to -be scrapped. Stephenson testified that he thereupon discharged Kauf- man. Stephenson denied that lie was,aware of,Kaufman's membership in the Union or of his activities in -its behalf and stated in substance that the only reason for the discharge was Kaufman 's poor work-and added that the litter's work had never been altogether satisfactory . A consideration of all of .the evidence in the record tends to support Stephenson 's denial that he was aware of the union activities of Kaufman at .the time of the latter's_ discharge, and the undersigned accepts Stephenson's denial as true. In view of all the evidence pertaining to,,Kaufman 's poor record, it is some- what difficult to understand why he was retained in respondent's employment for as long as 9 months. On the other hand, he was not elected to any office in the Union and the evidence fails to disclose that Kaufiuan was more active in union activities than other employees who have not been discharged. While the circumstances surrounding Kaufihhn 's discharge are not free from doubt, from the ' evidence as a whole the undersigned is not convinced' that Kaufman was discharger) because of his membership or activities in the Union.' IV. THE EFFECT OI THE UEI AIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section IIT, above, occurring in connection with the operations of the respondents described in Section I above, have a close , intimate, and substantial , relation to trade , traffic, and commerce among the, several States, and, tend to lead to labor disputes burdening. and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found .that the respondents have engaged in unfair labor practices, It will be recommended that the respondents cease and desist therefrom; and take certain affirmative action designed to effectuate the policies of the Act. The undersigned having found that the respondents, by discharging and re- fusing to reinstate George A. Post, discriminated in regard to his hire and tenure of employment, it is recommended, therefore, that the respondents offer to him immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make him whole 'for any loss of pay he *niay have suffered by reason of the respondents', discrimination against hnn,. by payment to him of a sum of money equal to the amount Nvhich he would normally have earned WESTERN LAND ' ROLLER COMPANY ` 651 as wages from November 18 , 1941, the date of his discharge ,. to the date of. the respondents' offer of reinstatement , less his net earnings 9 during said period . ' - . , • :: Since, as the undersigned has found , the respondents also engaged in other unfair labor practices , it is recommended that the respondents: be required to cease and desist from interfering with , restraining, or coercing its employees in the exercise of the rights guaranteed in the Act. Upon the basis of the foregoing findings of fact and upon the' entire record' in the case, the undersigned makes 'the following : - r CONCLUSIONS OF,LAW 1 International Association of Machinists, Local No. 1394, is a labor organiza- tion, within the meaning of'Section 2 (5) of the Act.' 2 By discrimination in regard to the hire and tenure of employment of George A 'Post, and thereby discouraging membership in the International Association of Machinists, the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering_ with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act: , 4 The aforesaid unfair labor practices are unfair 'labor , 'practices, affecting. commerce, within the meaning of Section 2 (6) and (7) of the Act. 5 The respondents. by discharging Lyle Kaufman, have not engaged, in the unfair labor practices within the meaning of Section 8 (3) of the Act. RECOMMENDATIONS i i Upon the basis of the above findings of fact and conclusions of law and upon the entire record of this case, the undersigned recommends, that the respond-' ents , Charles,. Arthur, , George, Paul, Clarence, Vance, Vera ,' Anne, Alice, Edna, and Lilly Belle Anderson , and Edsel and Mrs. J B. Glass ,' a partnership, doing business as Western Land Roller Company , their officers, agents, successors, and assigns shall: 1. Cease and desist from : . (a) Discouraging membership in the International Association of Machinists, or any other labor organization of its employees , by discharging, laying off, or refusing to reinstate any of their employees ; or in any other manner discrim- inating in regard to their hire or tenure of employment or any terms or conditions of employment ; • (b) In any other manner interferingwith, 'restraining,' ' or coercing their, employees in the exercise of the right to self-organization , to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purposes of collective ° 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 tw the ieFpondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere ' See Mattef• ,of Crossett Lumber Company and United Brotherhood of Cmpenters and -Joineis of America, Lumber and Sawmill Workers Union, Local 2590 , 8 N. L R. B 440 Monies received for work performed upon Federal, State , county , municipal , or other work-relief projects shall be considered as earnings . See Republic Steel CorpoiatioL v N L R B . 311 U S 7. 652 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to George A. Post, immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges; (b) Make whole the said George A. Post for any loss of earnings resulting from the respondents' discrimination against him by payment to him of a sum of money equal to that which he would normally have earned as wages from November 18, 1941, to the date of the respondents' offer of reinstatement, less his net 'earnings 10 during said period ; (c) Immediately post notices in conspicuous places throughout their plant in Hastings, Nebraska and maintain such notices for a period of at least sixty (60) consecutive days stating: (1) that the respondents will take the affirmative action set forth in paragraph 1 (a) and (b) of these Recommendations; (2) that the respondents will take the affirmative action set forth in paragraph 2 (a) and (b) of these Recommendations and (3) that the respondents' employees are free to become or remain members of the International Association of Machinists and that the respondents will not discriminate against any employee because of membership in or activities on behalf of that organization ; (d) And it is further recommended that the complaint, to the extent that it alleges that the respondents discriminated in regard to the hire and tenure of employmen' of Lyle Kaufman, within the meaning of Section 8 (3) of the Act, be dismissed. (e) Notify the Regional Director for the Seventeenth Region in writing within twenty (20) days from the date of the receipt of this Intermediate Report what steps the respondents have taken to comply herewith. It is further recommended that unless on or before twenty (20) days from the receipt of this Intermediate Report, the respondents notify said Regional Director in writing that they will comply with the foregoing recommendations the National Labor Relations Board issue an order requiring the respondents to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended-any party may within thirty (30) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Washington, D. C, an original and four copies of a statement in writing setting forth such exceptions to the Inter- mediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within twenty (20) days after the date of the order transferring the case to the Board. HENRY J. KENT, Trial Examiner. Dated September 15, 1942. 10 See footnote 9, supra.