The Glenn L. Martin-Nebraska Co.

In the Matter Of THE GLENN L. MARTIN-NEBRASKA COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. C-24108.-Decided March, 06, 19.x3 Jurisdiction : airplane manufacturing industry. Unfair Labor Practices - Interference, Restraint, and Coercion: anti-union statements of supervisory em- ployees; distribution of booklets containing what purported to be employment contracts at a time when it could-reasonably be inferred that the employer was offering individual bargaining as an alternative to collective bargaining; appli- cation'of a rule against solicitation in such a manner as to hamper organiza- tional efforts of the employees. Discrimination: discharges because of union membership and activity. Remedial Orders : employer ordered to cease and desist unfair labor practices; reinstatement and back-pay awarded. - DECISION AND ORDER Upon complaint issued pursuant to charges duly filed by Interna-' tional Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America; affiliated with the Congress of Industrial Organizations, herein called the Union, against The Glenn L. Martin- Nebraska Company, herein called the respondent, a hearing was held before a Trial Examiner in Omaha, Nebraska, from October 12 to 16, 1942, in which the Board, the respondent; and the Union participated by their representatives. The Board has reviewed the rulings of the Trial Examiner made on motions and on objections to the admission of evidence and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On November 9, 1942, the Trial Examiner issued his Intermediate Report finding that respondent had engaged in violations of the Act. Exceptions to the Intermediate Report and a brief were thereafter filed by the respondent. Oral argument was held before the Board on February 18, 1943. Upon our consideration of the entire record,' we affirm and adopt the findings of the Trial Examiner, except insofar as they are -inconsistent with our, findings and conclusions hereinafter set forth. 48 N. L. R. B., No. 73. 587 588 I DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record is clear and we are convinced that, except as hereinafter noted, the respondent engaged in the unfair labor practices as found by the Trial Examiner. On or about June 1, 1941, shortly after the respondent had become aware of the commencement of union organi- zational activities at its plant, the respondent distributed to each of its employees- a booklet containing,what, purported, to be 'a contract covering, inter alia, wages, vacations with pay, seniority, and `griev- ance procedure, some of which provisions were favorable to the em- ployees. The Trial Examiner found that respondent interfered with, restrained, and coerced its employees in'the exercise of the rights guar- anteed in Section 7 of the Act "by distributing to all its employees a so-called employment contract which contained some terms which were favorable to the employees and which indicated an intention always to dictate the contents of such a contract." Without determin- ing whether this document constituted a contract, we agree with the Trial Examiner's finding to the extent that the distribution of this booklet under the circumstances disclosed in the record was violative of the Act. Respondent contends that the "contract" was a duplicate of that issued by the parent company of Baltimore, Maryland, to its employees; that the respondent intended to distribute the booklet from the time it first started operating in December 1941; and that - the distribution was delayed because the parent company, which was preparing- the booklet for the respondent, had to revise the original "contract" by changing "the names in certain places" and "it took them quite a little time to get that done." We do not credit this explanation. It is incredible' that 6 months would be required to make such simple changes as the "names in certain places." The fact remains that the booklets were distributed while the respondent was aware that its employees were in the process of self-organization with the objective of engaging in collective bargaining through represei ta- ,tives of their own choosing. ' The reasonable implication of the re- spondent's actions was that the employees would gain nothing from self-organization and its consequent collective bargaining which they, could not gain from dealing individually with the respondent, and that the respondent was offering such individual dealing as an alter- native to collective bargaining. Under these circumstances, it is' rea- sonable to infer, and we find, that the respondent's conduct in circu- lating these booklets was designed to, and had the effect of, interfering with and restraining the employees in the exercise of their rights to self-organization and to bargain' collectively through representatives of, their own choosing.' 'Compare N. L. R. B. v. Superior Tanning Co ., 117 P. (2d) 881 , 890-892 (C. C. A. 7), cert. den. 313 U. S 559; N. L R. B. V. Vincennes Steel Corp., 117 P. (2d) 169, 171-173 (C. C. A. 7) ; N. L. R. B. v. Jahn & Ollier Engraving Co, 123 F. (2d) 589, 593 (C. C. A. 7). k THE -GLENN- L. MARTIN-NEBRASKA COMPANY 589 Together with the booklet, hereinabove described, the respondent issued to its employees another booklet entitled "Information for Employees," which contained, among other things, various rules gov- ,erning the conduct of the employees. This proceeding is concerned only, with that portion of rule 36 which prohibits "solicitation of em- ployees for membership in organizations [of any kind] . . at any time on company property without the specific approval of, manage- ment." The Trial Examiner found that the respondent violated the Act by "circulating among all of its employees a set of rules containing a paragraph prohibiting", union conversation. It is clear, however, that no such express prohibition appears in the rule. While we find it unnecessary to determine whether the circulation of the set of rules or the rule, Per se, is violative of the Act, we do believe. that the rule was applied in such a manner as to defeat and hamper the organiza- tional efforts of the employees. The respondent invokes the rule to justify its conduct in the following instances : , (1) Maceo Farrell, foreman of the second shift janitors, conducted instructional meetings for his janitors on Sunday evenings through- out the spring and summer of 1942. At one of these meetings, all of which were held in the plant, Farrell said that there had been a lot of union talk around the plant, and warned the employees that if it did not stop-some of them would find themselves without jobs.2 (2) Employee, Henry C. Henrikson was warned by William M. Ryan, head of the metal bench, welding, and heat treat departments, and by his foreman, Paul Rasmussen, to stop talking about the Union around the plant, or he would be discharged. According to Ryan and Rasmussen, however, the above warning was given to Henrikson only after they had, been informed by other employees that Henrikson had solicited them for membership in the Union. At the same time Rasmussen praised the working conditions at the respondent's plant, and said, in substance, that he knew the respondent would pay wages as good as, or better than, those the Union would obtain for the em- ployees. He further said he could hardly believe that Henrikson would "do such a thing" as. to get "hooked up with such an outfit" as the Union, and added that his personal opinion was that there was no need for unions during the war. Ryan, likewise, while reprimanding Henrikson, stated, as his personal, opinion, that he was "against unionism." (3) On or about August 18, 1942, Employee Henry P. Schwartz, while in the respondent's cafeteria during the lunch period, had a discussion with some fellow employees' concerning unions. Shortly 2 Although the record is not clear as to whether this incident occurred before or after the issuance of the booklet, the-respondent, in its brief and excepttoris before the Board, relies on the rule as a defense to its conduct in this respect. 590 DECISIONS O'FI'NATIONAL LABOR, RELATIONS BOARD thereafter he was reprimanded by Foremen John Trent and Leonard Miller,3 on separate occasions, and warned that he would be discharged for talking about union matters in' the plant. During the course of the conversation Trent told Schwartz that the respondent was opposed to unions and that was why it was paying such high wages. It is thus apparent that the rule was applied even though the con- duct engaged in did not involve solicitation and was therefore not 'prohibited by the express terms of the rule. Moreover, the respondent seized upon the alleged enforcement of the rule as an opportune time to disparage the Union and openly to demonstrate its opposition to it. Viewed against the respondent's opposition to the organizational activities of its employees, the anti-union threats and statements which. accompanied the purported enforcement of the rule, and the circum- stances disclosed by the entire record, it is clear, and we find, that the respondent applied the rule for the purpose of defeating self-organi- zation among its employees and discouraging membership in the Union, and thereby interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act.4 The Trial Examiner found that the respondent' violated the Act through the anti-union statements of Foreman Maceo Farrell. We agree and so find. We also find that the respondent's conduct, as. evidenced by the statements of Foremen Henrikson, Trent, Ryan, and Miller, hereinabove set forth, violated the Act. The Trial Examiner found that the respondent did not violate the 'pct through the statements of Foreman Rausmussen to employee Ienrikson that it •was his personal opinion that there was no need for unions during the war. We do not agree. Foreman Ryan also, stated to employee Henrikson, as his personal opinion, that he was "against unionism." The respondent's contention that these state- ments were expressions of personal opinion for which the respondent is not liable, is without merit. These were not isolated statements but were part and parcel of respondent's course of conduct to discourage and defeat self-organization of its employees. Moreover, as the Seventh Circuit Court of Appeals stated,in a similar situation, "ex- pressions of opinion concerning labor unions, by an employer, . . . may be of such a nature that their effect is to coerce and intimidate the employees. . . . To hold that such expressions, when employer mani- festly- intended to give them such effect, are not violative of the Labor Act would be to nullify the provisions of the Act and to thwart the 8 The Trial Examiner erroneously referred to. Miller as Mitchell in the Intermediate Report. 4 See Matter of William Davies Co, Inc. and United Packinghouse Workers of America, through Packinghouse Workers Organizing Committee, affiliated with the Congress of Indus- trial Organizations, 37 N. L. It. B. 631, where the rule was limited to soliciting membership in any union. THE GLENN L. MARTIN-NEBRASKA COMPANY - 591 public policy evidenced by said Act." 6 Accordingly, we find that the respondent has violated the Act by the foregoing statements. The Trial Examiner found that the respondent had discharged Wil- iam J. Krahling because of his union membership,,and George Vincent Ojeski because of his union membership and activities. Krahling and Ojeski were employed by the respondent as carpenters in its wood shop I, at 75 cents an, hour on January 22 and March 16, 1942, respectively. They were discharged, without notice, approximately 2 hours after their shift began on the morning of June 10, 1942. Shortly before they began to work that morning, Ojeski, who had been an active union member for some time prior thereto, succeeded in getting Krahling to sign a membership application card for the Union. This occurred -in the plant. The respondent, however, does not assert that it dis- charged them because they violated the rule against solicitation on company property, but alleges that Ojeski and Krahling were dis- charged because they were incompetent employees. It was the practice of the respondent's foremen to make written reports of grievances or reprimands against the employees. William A. Brinton, supervisor of the respondent's work shop, who discharged Krahling and,Ojeski, testified that the respondent on June 9, 1942, pur- suant to its practice, examined its written reports,on grievances and reprimands, and from the number of grievances and reprimands marked against Krahling and Ojeski, decided to discharge them as of June 10, 1942. These reports were introduced in evidence and show two grievances and reprimands against Ojeski, dated March 25 and April 10, 1942,° and five against Krahling, the earliest of which was dated March 24 and the latest May 23, 1942. The respondent admitted, however, that Krahling was a better workman than Ojeski. It'appears, further, that Krahling received a raise of 5 cents an hour on March 21, 1942, and Ojeski a similar raise on May 30, 1942. The respondent admitted that all -raises of wages over 75 cents an hour were granted on merit, only. Moreover, Brinton testified that a '.routine of the shop" required an examination of the reprimand and grievance reports of any employee who was to get a raise in wages, and' Brinton admitted that lie had examined Ojeski's reports before he granted Ojeski his raise of May 30. Since the record discloses no reports for the period between May 30 and June 10, it is impossible to reconcile Ojeski's wage raise and his discharge 11 days later, when both, as Brinton testified, were based upon an examination of the same records. Furthermore, no explanation was given for the precipitate ON. L. B. B. v. Superior Tanning Co., 117 F. (2d) 881 (C. C. A. 7), cert. den. 313 U. S. 559. 9 Another report of a reprimand against Ojeski, dated May 15, 1942, was introduced into evidence, but it dealt only with Ojeski' s rescission of a former request of his to be trans- ferred to another department, and did not concern his work. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharges in the middle of the morning, without prior notice, for alleged causes which were in existence for a long time prior thereto, and in the absence of any immediate derelictions on the parts. of Krahling and Ojeski . Upon the entire record, we find that the alleged incompetency of Krahling and Ojeski was not the motivating cause of their discharges. Although the respondent denied knowledge of the incident whereby Ojeski induced Krahling to join the Union shortly before the dis- charges, the record clearly indicates the contrary . Thus, as the Trial Examiner found, about 2 hours after joining the Union, Krahling was called from his work by his foreman , Donald Fossler , who said, "Bill, I understand you joined the Union ." Krahling admitted that he did, whereupon Fossler told him that Brinton wanted to see him. Within a few minutes, Krahling went to see Brinton who informed him that he was discharged because he had not been doing so well in his work lately. At the same time , Leroy Mitchell, Brinton's clerk, went to Ojeski, and said, as the Trial Examiner found , "You have gone into your activities as far as you can." Mitchell added that Brinton had instructed him to notify Ojeski of his discharge . When Ojeski went to Brinton and asked for an explanation, Brinton -told him,that he was discharged because he was getting too slow. Upon the entire record, we agree with the findings of the Trial Examiner that Krahling and Ojeski were discharged because of their union membership and activities.' THE REMEDY We have found that the respondent has engaged in certain unfair labor practices. We will, therefore, order the respondent to cease and desist therefrom and to take certain affirmative action which we find will effectuate the policies of the Act. We have, found that the respondent 'discriminatorily discharged George Vincent Ojeski and William J. Krahling because of their union membership and activity. In order to effectuate the purposes and policies of the Act, we shall order, the respondent to offer Ojeski and Krahling immediate and full reinstatement to their former or sub- stantially equivalent' positions, without prejudice to their seniority and other rights and privileges. We will also order the respondent to make them whole for any loss of-pay each has suffered by reason of the respondent's discrimination by payment to each of a sum of money equal to the amount he normally would have earned as wages 7 We disagree with the Trial 'Examiner's subsidiary finding that employee Anton Vidlak ,was a representative of the A F. of L. We do not believe that the credible evidence sup- ports such a finding THE. GLENN L. MARTIN-NEBRASKA COMPANY' 593 from the date of the-discrimination to the date of the offer of reinstate- ment, less the respective net earnings 8 of each during that period. Upon the basis of the above 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, affiliated with the Congress of Industrial Organizations, is a labor organization, within the ,meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of George Vincent Ojeski and William J. Krahling, and thereby discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, the respondent has engaged- in and is 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, exercise of the, rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER ' Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, The Glenn L. Martin- Nebraska Company, Omaha, Nebraska, its officers, agents, successors, and, assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of Amer- ica, affiliated with the Congress of Industrial Organizations, or any other labor organization of its employees, by discriminating in regard to their hire and tenure of employment or any terms or conditions of employment; 8 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 Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R B . 440. Monies received for work 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. 594 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD (b) In any other manner interfering with, restraining, or 'coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives, of their own choosing, and to engage in concerted, activities 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) Offer to William J. Krahling and George Vincent Ojeski imme- diate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges; (b) Make whole William J. Krahling and George Vincent Ojeski for any loss of pay they have suffered by reason of the respondent's discrimination against them, by payment to each of,them of a sum of money equivalent to the amount he normally would have earned as wages from June 10, 1942, to the date of the respondent's offer of reinstatement, less his net earnings during the said period; (c) Post immediately in conspicuous places in its plant at Omaha, Nebraska, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's employees are free, to remain or become members of the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organ- izations, or any other labor organization, and that the respondent will not discriminate' against any employee because of membership in or activity on behalf of that organization; (d) Notify the Regional Director for the Seventeenth Region in writing within ten (10) days from the date of the receipt of this Order what steps the respondent has taken to comply herewith. MR. JOHN, M. HOUSTON took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Eugene R. Melson, for the Board. ' Mr. W. C. Fraser, of Omaha, Nebraska,'for the respondent. Mr. Charles E. Bioletti, of Omaha, Nebraska, for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the THE, GLENN L. MARTIN-NE'BRAS'KA COMPANY 595 Congress of Industrial Organizations, 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 Septem- ber 29, 1942, against the Glenn L Martin-Nebraska Company, herein called the respondent, alleging that the respondent had engaged in, and was engaging in, unfair labor practices'affecting commerce within the meaning of Section 8 (1') and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein' called the Act. Copies of the complaint, accompanied by notices of hearing thereon, were duly served upon the respondent and the Union. Withfi'respect to the unfair labor practices, the complaint alleged, in substance, that the respondent (1), since on or about'July 19, 1941, interfered with, re- strained, and coerced its employees by (a) making statements and speeches prejudicial to and disparaging the Union, its officers, and members, (b) threat- ening with discharge those of its employees who sought to affiliate with the Union or to engage in activities on its behalf, and (c) entering into unilateral agreements with its employees under circumstances calculated to interfere with the organ- izational attempts of its employees; and (2) discharged,' and thereafter refused to reinstate, George Vincent Ojeski, and William J. Krahling because of their membership in, and activities on behalf of, the Union. In its answer dated October 8, 1942, the respondent admitted the allegations of the complaint as to the nature of its business but denied that it had engaged in any unfair labor practices. , Pursuant to notice, a hearing was held from October 12 through October 16, 1942, before the undersigned, the Trial Examiner duly designated by the Acting Chief Trial Examiner The Board and the respondent were represented by counsel and the Union by its international representative. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses,'and to introduce evidence bearing on the issues. At the close of the respondent's case , the Board moved to conform the pleadings to the proof as far as variances in dates, spellings, and similar formal matters were concerned. This motion was granted without objection. The parties, upon request of the undersigned, argued orally before him. They were given an opportunity to file briefs with him, but filed none. , Upon the record thus made and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The respondent is a Delaware Corporation and maintains and operates its office and- plant in Sarpy County, Nebraska. It is engaged in the production and assembly of airplanes and airplane parts to be used by the United States Gov- ernment in the prosecution of the war. In: the course of its business, a substantial portion of the materials used by it is transported from other States to Nebraska and a substantial portion of the airplanes and airplane parts produced by it is transported to States other'than Nebraska. The value of airplanes and airplane parts produced and assembled by it during the period from January 1, 1942, to October 1, 1942, was in excess of, $1,000,000. The respondent employs in excess of 5,000 persons.' ^ These findings are based upon a stipulation of the parties which was made a part of the record 521247-43-vol. 48-39 596 DECISIONS- OFNATIONA,L--I1ABOR_ REVATIONS'BOAlID • ' fl. ' THE' ORGANIZATION INVOLVED i i . The International- Union, United Automobile, Aircraft and Agricultural, Imple- ment Workers of America is a labor organization affiliated with the Congress of Industrial Organizations, and admits to membership employees of the respondent. HI. THE UNFAIR' LABOR PRACTICES A. Sequence of events; interference, restraint, and coercion On February 28, 1942, Charles Bioletti was given entire charge by the Union of a prospective drive to organize a local C. I. 0 union among the respondent's employees. He arrived in Omaha within a few days thereafter, rented a hall, and began organizational work. A charter for a local union was applied for in April'and-was issued on May 17, 1942. Beginning about the middle of May, and continuing until the time of the hearing, various C I. 0 leaflets concerning union matters' were from time to time prepared and distributed to the respond- tint's employees In the meanwhile, various C. I. 0 union meetings were held and applications for membership in the Union were sought and obtained. All of these activitie's"were -carried-on under the direction of Bioletti.' Aeronautical Mechanics, Lodge 1574, A. F. of L, also began similar organizational work among the respondent's` employees in April or May 1942. - During the spring and summer months of 1942, Maceo Farrell, foreman of the second shift of the respondent's janitors, held instructional meetings for his janitors. At• several of these meetings he said that there had been union talk around the plant and that if it was not stopped some of his men would find themselves without a job.' Once, while Granville, one of the respondent's janitors, who testified in relation to-the meetings just referred to, was riding on the way home from work with Farrell, the latter told' him that "the Union was no good here." 8 About June 1, 1942, during union activity, the respondent issued' two booklets to each of its employees and told them to read them. One of the booklets was addressed "To each Employee of the Glenn L. Martin-Nebraska Company." Its whereas clauses, among other things, stated that the respondent recognized the right of every employee to discuss matters affecting his employment with the management, to bargain collectively through representatives of their own choos- ing, and to join or refrain from joining any organization or union without dis- crimination by the respondent because of such membership or non-membership. 'It then set forth a statement of policies of the respondent, referred to therein as a contract. Some of the provisions were favorable to=the employees. Para- graph 19 read as follows : This instrument shall be considered a contract between the company and its employees, and shall become effective as of the date hereof. It is the purpose of the Company to continue the agreement in effect until such time as,general economic conditions beyond the control of the Company make changes necessary. If and when such changes become necessary, the mutual rights, privileges, and welfare of the employees and the Company will govern the changes that are made. ` 2 Two "of Farrell's janitors, Burns H. Scott and James D Granville, testified to this effect The undersigned credits them, for they appeared to be honest witnesses. Further, Farrell admitted he held these meetings and testified merely that he did not remember that- be made the- statements. , < ' I , The undersigned credits Granville As stated in footnote 2, supra, Granville appeared to be a trustworthy witness. Farrell admitted that Granville rode to and from work with him, and he did not directly deny that he made this statement. TITHE 'GLENN L: 1VIARTIN-INTEBRASKA :COlGIPAN,Y :i 597, IN,Vas'Idated. June 1,'1942, and'^vas . signed" for -the: respondent' by its -presid'e'nt, Glenn L. Martin None of these so-called contracts contained spaces for employee signatuies'and none were signed by the respondent's employees." - : , - The other booklet'was'designated "Information for Employees." Paragraph,36- thereof prohibited 'the distribution. of literature of any kind. or nature or the', solicitation of employees for membership in organizations,-, sales of tickets or, merchandise, donations,, etc., at any time on company property without the specific- approval o',the management' ' Very soon after the distribution of these booklets, Henry C. Henrikson, one of the respondent's employees, was warned by William M. Ryan, head of the metal bench, welding, and heat treat departments, and 'by Paul Rasmussen, Henrikson's foreman, against talking about the Union on company time, and was informed that' if he did ' this thereafter he would be discharged. The uncontra-• dieted evidence is that at this time Rasmussen also spoke highly to Henriksen of the general working conditions at the respondent's plant and said, in substance,! that he knew the respondent would pay wages which would be as good as, or better than, those'which the Union would obtain for the men. Rasmussen likewise- told Henrikson that he would like to know how the latter got "hooked up with- such an outfit" and that'he could hardly believe Henrikson would "do such a- thing." ° - - On or about August 18, 1942, Henry P. Schwartz,, another of the'respondenntss employees, had a discussion concerning unions with some of'his fellow employees' in the respondent's cafeteria. On that same day he was called from his work by John Trent, general foreman for the second shift of the raw stores department. Trent questioned Schwartz about what he had said during the discussion in the' cafeteria. In the course of this conversation Trent told Schwartz that Glenn L. Martin was opposed to unions and that that was why Mr. Martin paid such high wages. Soon thereafter, Schwartz had a talk with Leonard Mitchell, his foreman,' concerning the incident in the cafeteria and his conversation with Trent . At this time Mitchell told Schwartz that if he ever caught him talking about the Union to any employee in his department he would discharge Schwartz." . 4 The complaint in this case asserts that the respondent entered - into unilateral agree-, ments with its employees as individuals under circumstances calculated , to, interfere with, thwart, and obstruct the organizational attempts of its employees . The undersigned finds that no individual contracts were made between the respondent and its employees, since "it is clear that whatever may have been 'the'offeree's state of mind, no contract can be made (by silence on the offeree's part) unless the offer stated that the offeror would assume, assent in case the offeree made no reply ." Williston on Contracts (Rev. Ed ) 284. There, was no such statement in this booklet The undersigned finds, therefore , that .the respond- ent is not. chargeable' with an unfair labor"practice because. of having made individiyal employment contracts with its employees . Whether or not it has been guilty of interference, because it distributed this pamphlet among its employees is another question which will be considered later in this report. ° There was undenied evidence that baseball and football pools were conducted in the respondent's, plant, on .company time • and that no one was warned or discharged , for having carried on this activity. However, the record does not show that the respondent had any actual notice of the existence of these pools, nor does it appear therefrom that these activi- ties were"so widespread that knowledge of them by the respondent can reasonably be pre- sumed The undersigned finds, therefore, no failure on the part of the respondent to en force paragraph,36 of its rule book as far as it may be deemed to prohibit the participation, in such pools. Thus no question as to the enforcement of this rule as to,the solicitation of union membership,and not as to other types of solicitation arises. ° Rasmussen also told Henrickson that his personal opinion was that there was no need: for uriions'during the war 'The undersigned finds that tbis ' expression of'a'personal opinion was not an unfair labor-practice. , , , < I 1 . . " Trent denied that he made the statement attributed, to him by Schwartz. The,•under-, signed credits Schwartz His demeanor on -the witness stand was that of an honest wit- ness, he admitted facts unfavorable - to his position , and, his testimony was consistent, and, 598, DECISIONS OF NATIONAL LABOR, RELATIONS -BOARD - The-undersigned finds that by threatening, through- Foreman -Maceo Farrell, to, discharge employees for talking about the Union on company property, by, circulating among all of its employees a set of rules containing a paragraph prohibiting such conversation, by asserting its general,opposition to unions, by making statements derogatory, of the Union, by distributing to all of its em- ployees of so-called employment contract which contained some terms which were favorable to the employees and, which indicated anyintention always to dictate the contents of such a contract, and by giving assurance to employees that the respondent would voluntarily give wages which would be as high as, or higher than,- those they could obtain through the assistance of the Union, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section, 7 of the Act e Particularly is this true since the events occurred at a time when the respondent knew that two unions were actively engaged in organizing its employees, and that the purpose of each union was to become their collective bargaining agent. B. Discrimination with respect to hire and tenure- of emplrnyment 1. The discharges of Krahling and Ojeski .William J. Krahling and George Vincent Ojeski were employed by the; re- spondent as carpenters in its wood shop at 75 cents an hour on January 22 and March 16, 1942, respectively. r They were discharged on June 10, 1942. According to the respondent, Ojeski was dismissed because of poor workman- ship and his failure to clean his bench and to assist in the cleaning of machinery in the wood shop. There were two written reports of reprimands given Ojeski which were prepared before his discharge. They were dated March 25 and April 10, 1942. In a report prepared by William A. Brinton, supervisor of the respondent's wood shop, after Ojeski's discharge, Brinton stated that from May 30 on Ojeski "did his level best to avoid working."' Ojeski admitted that he had made some errors in his work and had discussed mistakes with his supervisors. On the other hand, the undenied evidence is that he was complimented on• his work by his superiors.10 There is likewise uncontradicted evidence that Fosler gave a blue-print job to Ojeski which he told Ojeski he did not know how to do, and that Ojeski was given supervision over at least three jobs, the last one of which was commenced about May 26. About two weeks before his discharge Brinton told Ojeski to slow down in his work or there would be nothing to do u, appeared to be spontaneous. On the other hand,' the testimony of'Trent seemed to be. studied and rehearsed. Mitchell substantially corroborated Schwartz's testimony relating to what Mitchell told him. Though Mitchell claimed he merely warned against talking union on company time, it is improbable that he made such a limitation, since 'the incident which gave rise to the conversation between Mitchell and Schwartz did not occur' during working hours. See In the Matter of William Davies Go, Inc., et at., 37 N. L. R. B. 631. 636-639. s See Montgomery Ward of Co v. N. L R. B, 115 F. (2d) 700 (C. C A. 8). It does not seem- plausible that Ojeski should make a special effort not to work as soon, as a requested raise became effective,' nor does it seem probable that such conduct on his part, if it occurred, would not have been the subject of a written report. The undersigned finds, therefore, that Ojeski did not attempt to avoid working after May 30. 10 Both Brinton and Donald Fosler, second shift foreman, at times praised the work of Ojeski. 11 Although Brinton denied this, the undersigned credits Ojeski, who appeared to be an honest witness, testified in detail, and was consistent in his testimony. The testimony of Brinton, on the other hand,' contained many inconsistencies. For example, Brinton ,at one point in,his testimony said he looked at all mistakes involved in reprimand reports to which he signed his name, while,at another time he admitted he had signed a reprimand report without having personal knowledge of the facts involved therein. .'.T11E ''GLENN' :L: MARTIN.:NEBRASKA COMPANY 599 Ojeski, acknowledged at the hearing that occasionally. he had failed to assist in the cleaning of the machinery in the wood shop, but he testified this was true' only when he worked up to the, last minute of his shift, or when the car- penters-were sent home early. He testified -further that he had never failed to clean his bench and that he had never been reprimanded for having failed to do any necessary cleaning. Both Brinton and Fosler denied Ojeski's testi- mony. The undersigned credits Ojeski and finds that he always cleaned his bench and that he assisted in the cleaning of the machinery in the wood shop when time permitted. 'z:, -1 1 The respondent claimed that Krahling was discharged because, of poor work- manship. The respondent offered in evidence five written reports of repri- mands given Krahling. The earliest one was dated March 24 and the latest one was dated May 23, 1942.8 As between Krahling and Ojeski, the respondent's testimony was to the -effect that Krahling was the better workman. Krahling conceded that his work was not without error and • said he had talked about some mistakes with his supervisors, but he, too, gave uncon- tradicted testimony that his work had been complimented by his superiors.'4 He also gave undenied evidence that he had completed -some jobs in less time than the respondent estimated that they would take. The respondent gave Krahling and Ojeski each 16 one individual" merited raise. Though the respondent claimed, at the hearing, that these raises were given as an incentive to better work, Hammer testified that if an employee was paid 75 cents an hour to begin with, which was the rate at which Krahling and Ojeski were first paid, any raises they might receive would be based on merit alone Moreover, paragraphs 3 and 4 of the so-called contract dis- tributed to the respondent's employees are to the same effect. And, too, Frank Bascom, Ojeski's leader, testified that when he informed Ojeski he was to get a raise he told-him to keep up the good work and he would probably get more raises in the future. - Though Krahling's union activity at the time of his discharge consisted in his having just joined the Union, Ojeski had joined it on April 25, 1942,•and had gotten 14 to 20 of -the respondent's employees to become members. The only one of these employees whom he had signed up on company property was - Krdhling. The facts immediately surrounding the discharges of Krahling and Ojeski were these. About 8: 15 in. the morning of June 10, 1942, before his shift began, Ojeski came to the smoking area used by the employees in the wood shop. He saw Krahling and Anton, Vidlak, a fellow employee, sitting together on a truck. He sat down beside Krahling and began to talk to him about the Union. He 12 As already -stated , Ojeski appeared to be an • honest witness and testified consistently, whereas there, were many inconsistencies in Brinton's testimony. Moreover, Brinton ad- mitted that at times Ojeski's leader might have told him to work up to the last minute. Also, there was no,written report prior to Ojeski's discharge of any reprimand given him for failure to clean his bench or to assist in the cleaning of machinery. 18 An unfavorable report on Krahling's work received by the respondent on March 17, 1942, from •Thinigan and Son's, one of Krahling's former employers, was admitted by the respondent not to have been a basis of Krahling's discharge. 14 See footnote 10,-supra. 31 The respondent attached considerable importance to the fact that Krahling and Ojeski were given only one raise It claimed that if they had been good workmen they would have received at least two, and perhaps more, raises. One of its exhibits introduced at the hear- ing sets forth -the raises that, were given to 60 of its employees. The pay of several of them, who were still employed by the respondent when this case was tried, bad been ad- vanced no more rapidly beyond 75 cents per hour than had been the pay of Krahling and Ojeski I , . 1e G. K. Hammer, the respondent's personnel , director, and Brinton testified that these were individual raises. 600 DECISIONS:OFc_NATIONAL :IFABOR RELATIONS,- B4DAR(D asked ,Krahling -ifflhe wanted ' to -sign : a membership application -,at that time. Krahling decided' to : do ,this, was given an- application by Ojeski; filled it out, and -returned' it;to:Ojeski. . Ojeski had to, speak loudly to, Krahling since, the latter was somewhat' deaf Vidlak„ who was a representative of the A.. F. -of L., which -was competing with the Union--for members, among the respondent's employees, left -the.,smoking area ahead of Krahling and:•Ojeski, -but after Krahling had--signed his,. membership. application.. He went to Brinton's office, which-is in-the wood'shop but, not in a separate room, and talked with Brinton. About 10 o'clock that morning Vidlak again talked with -Brinton. Ojeski saw each of-these conversations, but he did-not hear.what was-said. -,-Between 10-and:10:30 on.thisrsame morning Fosler called Krahling aside- from his-work-and said to him, "Bill, I understand you signed with the Union." 11 Krahling admitted that,,this was so, - and Fosler then told him that Brinton wanted to see him., Within 5-minutes Krahling went down to see Brinton, who informed him-he was discharged because ,he had not been doing so well lately. About, 15, minutes later, Leroy Mitchell," Brinton's clerk, came to Ojeski and said, "You ;have gone into your activities as far as you can. You get a tool crib clearance card."' ' ', Mitchell advised Ojeski that Brinton had told him to inform Ojeski of his discharge. When Ojeski went to see Brinton soon thereafter he asked Brinton if he-was discharged because of what had happened that morn- ing. - Brinton asked him, what he meant, and told him he was dismissed because he was getting too :slow.20 Neither Krahling nor Ojeski has been recalled -by the respondent to work. - From the facts occurring on the morning of-June 10, the undersigned finds that Brinton knew, when he discharged Krahling and Ojeski, that they were members of the Union -and that Ojeski had that morning obtained the application of Krahling,to join the Union.. ' In a report on Ojeski made after his discharge, Brinton wrote. that Fosler, Ojeski's leader, requested the suspension of Ojeski on June 8, 1942. But Fosler testified that Ojeski was not under his supervision during the 30 days just pre- ceding his discharge on June 10. The undersigned, finds, therefore, that Fosler did not request;the suspension of Ojeski on June 8 The respondent also claimed that its decision*to discharge, Krahling and Ojeski`was arrived at on June 9, on which date it said the work records of all the workmen in the wood shop were inspected. -'In -connection with the contention, it should-be noticed that the uncontradicted evidence is that the suspension of service slips for Krahling and Ojeski were made out, on June 10. "?7 ThoughFosler 'denied that he said this, the undersigned credits Ojeski for reasons previously given I • - - - - ie Mitchell was in the Navy at the time of the hearing. .^.aeThis card•wn's'necessary when one took his tools fromithe'respondent's plant. Vidlak and 'B'rinton both denied that they-talked together in Brinfon's office on' the morning of June TO ''Brinton'"also denied having'any knowledge of the union membership of'Krahling'or'Ojeeki iintil-after their discharges. Vidlak also said he did not hear-Ojeski ask Krahling to join 'the Udioii noi see Krahling given or sign an application for member- ship. The undersigned credits Krahling and Ojeski, who testified to the facts of their dis- charges-as recounted -above. As previously 'stated,' they both appeared to `be truthful witnesses and their testimony* was consistent, while 'there were many inconsistencies in Brinton's testimony. i\loi eoi-er, Brinton did not deny that Fosler was at his office on the morning of June '10 - 'Fuether; Brinton testified that Ojeski askedi him -if he was being dis- cliarged because-of what had happened that morning. Vidlhk's testimony that he had never talked" to Brihfon 'in his office seems to indicate a willingness to testify to improbable facts:' Vidlak'had'been working in the respondent's wood shop for 9 months at theitime lie -testified Brinton' was 'his supervisor, and there 'was a supply cabinet in Brinton's office.Y'This cabinet contained%various'materials, such as drills and sandpaper, which were used by the wood workers. Under such circumstances, it does not seem plausible -that Viillnk'liad never spoken tb Briritori'in his office. • , • ' THE GLENN L. MARTIN-NEBRASKA COMPANY 601 As proof-of its- lack of prejudice against union employees, the res'pondent`offered evidence that it had-employed 60 out of approximately"-8,000 men`zknowing,tliat they'belonged to a union and thatit had not discharged -a few•of=its' employees who were-witnesses in this'case after learning,of their union tendencies.', ;Though, it is unquestionably true that neither Krahling nor'Ojeskii did'perfect work and that the respondent- hired somewhat less than one percent of its employees knowing they were members of a union and it retained in-its employ a`few others-whom it knew favored unions, there are facts in this case which to- gether cleaily demonstrate the lack of merit in the respondent's claim that. it discharged Krahling and Ojeski, because of their poor workmanship. Thus, the facts that Ojeski was complimented on his work 'by his superiors, that=there were-no.reports of reprimands given Ojeski which were prepared before his discharge and which concerned his work after April 10, 1942, that•he was given a: job which his supervisor said he, the supervisor, did not know how to do, that he was given supervision of work as late as May 26, 1942, that he was given a merited, individual raise twelve days before he was discharged, and that at that time big supervisor told him' to keep up the good work, cast great doubt upon the sincerity of the respondent's claim that it discharged Ojeski because of poor workmanship. This doubt also attaches to the respondent's claim as to Krahling, since he,-too, was complimented on-his work, some of his jobs he com- pleted in shorter periods than the respondent estimated they would take,'also' was given a merited, individual raise and, by the testimony of the respondent's own witnesses, he was a better workman-than-Ojeski. In!view of'these facts aiid'of the-further facts that Brenton knew, when'lie'discharged Krahling and Ojeski, that Ojeski had on the very morning of their discharge obtained Krahling's application for membership in the Union, that the suspension of service slips for these-employees were prepared on the morning of their discharge, that Krahling's foreman, on-notifying him- that Brinton wished to see him, specifically spoke of Krahling's -union membership, and that Brinton's clerk; on bringing Ojeski the- same message , referred to Ojeski's' union activity, the 'undersigned finds that- the respondent discharged Krahling, and thereafter refused him reinstatement, because of his membership in the Union, and that it discharged Ojeski, and there- after refused him reinstatement, because of his membership in, and activity on behalf of, the Union. By thus 'discriminating in regard to the hire and tenure of employment of Krahling and Ojeski, the respondent discouraged membership in the Union and - interfered with, restrained, and coerced its employees in-the exercise of the rights guarantej d in Section 7 of the Act. IV. TEIF] 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 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 Since it has been found that the respondent has engaged in unfair labor; practices, it,will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent has actively engaged in a campaign to' hinder and obstruct its employees in their right to self-organization and has- engaged in a, course 'of conduct calculated to intimidate its employees in the exercise of the rights guaranteed them in Section '7 of the Act.- ' It will therefore be recommended that the respondent cease and desist from such actions. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It has been found that the respondent discharged William J. Krahling, and thereafter refused to reinstate him,- because he joined the Union and that it dis- charged George Vincent Ojeski, and thereafter refused to reinstate, him, because he joined and assisted the Union and engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection. It will therefore be recommended that the respondent offer Krahling and Ojeski immedi- ate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. It will be further recommended that the respondent make Krahling and Ojeski whole for any loss of pay they may have suffered by reason of their discharges'by payment to each of them of a sum equal to the amount which-,he would normally have earned as wages from the date of his discharge to the date of his offer of rein- statement less his net earnings, if any, during such period.21 Upon the basis of the foregoing facts, and upon the entire record in the case, the undersigned makes,the following: CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America is a labor organization, within the meaning of Section (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of 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. . 3. By* discriminating in regard to the hire and tenure of employment of William J. Krahling and George Vincent Ojeski, thereby. discouraging mem- bership in International Union, United Automobile, Aircraft and Agricultural Implement, Workers of America, the respondent has engaged in unfair labor practices, within the meaning of Section 8 (3) of-the Act. 4 The aforesaid labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, Glenn L. Martin-Nebraska Company, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : - (a) Discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, or any other labor organization of its employees by discharging_or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their -hire and tenure, of employment ; - (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right of self-organization, to form, join, or assist 21)3y "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 the respondent's discrimination against him and the consequent necessity of his seeking employment else- where. See utter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work 'performed upon Federal, State, county, municipal, or other work-relief projects shall -be considered as earnings . See Republic Steel Corporation v. X. L. R. B;, 311 U. S. 7. N THE GLENN L. MARTIN-NEBRASKA COMPANY 603 labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of col- lective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2_ Take, the -following affirmative action, which the undersigned, finds will effectuate the policies of the Act : (a) Offer to William J •Krahling and George Vincent Ojeski immediate and full reinstatement to their former or-substantially equivalent positions without prejudice to their seniority and other rights and privileges and make them whole for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money ,equal to that which he normally would have earned as wages from the date of -his discharge to the date of the offer of reinstatement, less his net earnings 23 during said period ; - (b) Post immediately in conspicuous places in its place of business in Sarpy County, Nebraska, and maintain for a period of at least sixty (00) consecutive days from the date of posting, notices to its employees stating : (1) that the respondent will not engage in conduct from which it is recommended that it cease and desist in paragraph 1 (a) and (b) of these recommendations; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of these recommendations, and that its employees are free to remain or become members of the International Union, United Automobile, Aircraft and Agri- cultural Implement Workers of America and that the respondent will not dis- criminate against any employee because of membership or activity in that organization ; - -- (c) Notify the Regional Director fdr the Seventeenth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. i It is also recommended that, unless on or' before ten (10) days from the.date of the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the 'National Labor Relations Board issue an order requiring' 'it 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, effective October 14, .1942-any party may within fifteen (15) 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, Wash- ington, D. C, an original and four copies of a statement in writing setting forth such exceptions to the Intermediate 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 ten (10) days after the date of the order transferring the case to the Board. . CARL C. WHEATON, Trial Ewaminer. Dated November 9, 1942. 22 See fooinote 21, supra." a