Chrysler Corp.

In the Matter of CHRYSLER CORPORATION and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORK- ERS OF AMERICA, LOCAL 114, UAW-CIO Case No. 7-C-1092.-Decided January 12, 1944 DECISION AND ORDER On September 21, 1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and that it take certain affirmative action, as set forth in the copy of the Inter- mediate Report annexed hereto. Thereafter the respondent and the Union filed exceptions to the Intermediate Report and briefs in sup- port of their exceptions. The Board has considered the rulings made by the Trial Examiner at the hearing and finds that ho prejudicial error was committed. The rulings are hereby affirmed. On October 12, 1943, counsel for the Board and for the respondent entered into a stipulation providing for the incorporation in the present record of the settlement agreement in Matter of Chrysler Corporation, a prior proceeding before the board,' together with paragraphs 7 and 8 of the complaint in that proceeding.2 The stipulation is hereby approved, and the aforesaid documents are made a part of the record in the present proceeding. Upon request of the respondent and pursuant to notice, a hearing was held before the Board in Washington, D. C., on December 2, 1943, for the purpose of oral argument. The respondent and the Union ,were represented by counsel and participated in the hearing. At the close of the oral argument, counsel for the Union offered, without objection from the respondent, a copy of the referee's decision in regard to the claim of Jack Jensen before the Michigan Unemploy- ment Compensation Commission. The Board accepted the document and made it a part of the record. 1 Case No. 7-C-981. 2 The complaint , issued June 8, 1942, alleged that the respondent had engaged in unfair labor practices, within the meaning of Section 8 ( 1) and ( 3) of the Act . Paragraphs 7 and 8 set forth the alleged violations of Section 8 (1). 54 N. L R. B., No. 77. 510 CHRYSLER CORPORATION 511 The Board has considered the Intermediate Report, the exceptions and briefs filed by the parties, and the entire record in the case, and hereby sustains the exceptions of the respondent to the extent indicated below. In other respects the Board hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 1. The Trial Examiner has found that the respondent, by certain statements of its supervisory employees, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. It appears, however, that the allegations in the present proceeding, insofar as they relate to such-violations of the Act, are in all essential respects identical with the allegations in Matter of Chrysler Corporation, Case No. 7-C-981, which was settled by an agreement executed by the respodent, the Union, and counsel for the Board on July 9, 1942, and approved by the Board on July 10, 1942. This agreement provided, in part, that the Board would not, in any subsequent proceeding, make a finding of violation of Section 8 (1) of the Act resting in whole or in part upon the proof of any of the matters or transactions mentioned in paragraphs 7 or 8 of the complaint in Case No. 7-C-981 unless, in the subsequent proceeding, the Board also found a violation of Section 8 (3) of the Act.' The only violation of Section 8 (3) alleged in the present proceeding relates to the discharge of Jack Jensen, which, as appears below, we find not to have been discriminatory. In view of the settlement agreement, we therefore reverse the finding of the Trial Examiner that the state- ments alleged to have been made by Chief Chapman, Captain Berry, Captain Thornton, and Sergeant Piel, to Patrolmen McKenna, Rolens, and Conlan, all of which occurred during the period of time covered by the complaint in the prior proceeding, constituted violations of Section 8 (1) of the Act. The remarks alleged to have been made by Chief Chapman and Captain Berry to Jack Jensen in June 1942 are the only other statements found by the Trial Examiner to constitute interference, restraint, and coercion. These statements were made 3 The pertinent provision of the settlement agreement in Case No 7-C-981 is as follows : The Board will, upon the corporation 's having completed its performance of its agreements as hereinabove set forth , withdraw its Complaint in this matter (whether the union has applied for leave to withdraw the charge or not ) and shall not after the date hereof issue any other Complaint based upon or relating to the allegations or the subject matter of the said Complaint , provided , however, that in the event the Board shall issue a Complaint at any time hereafter alleging any violation of sub- section ( 3) of Section 8 of the National Labor Relations Act by the corporation occurring after the date hereof in relation to any of the Corporation's Plant Protec- tion Department employees , nothing herein shall preclude the Board from alleging and proving that the persons named in Paragraph 8 of the Complaint in this proceeding engaged in the acts and transactions described in Paragraph 7 of the said Complaint, provided further, however , that in the event the Board shall in any such proceeding based upon violations occurring after the date hereof fail to find a violation of sub- section ( 3) of Section 8 of the Act it will make no finding of violation of subsection (1) of said Section 8 which rests in whole or in any part upon the proof of any of the matters or transactions mentioned in Paragraph 7 or 8 of the Complaint in this proceeding. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after the date of the complaint in Case No. 7---981, but before the date of the settlement agreement. Since we regard that agreement as having been intended by the parties to dispose of all violations of Section 8 (1) of the Act occurring prior thereto, and since it is not entirely clear, from Jensen's testimony regarding the statements made to him, that the warning conveyed thereby was directed to union activ- ities'on his own time, we do not find that these statements constituted a violation of Section 8 (1) of the Act. We therefore find that the re- spondent has not interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, within the meaning of Section 8 (1) of the Act. 2. The Trial Examiner has found that the respondent did not dis- charge Jack Jensen for his union activities, but because of accumulated rule violations and for sleeping at his post of duty. In reaching this conclusion, he has relied, in part, on a finding that, throughout the hearing before the State Unemployment Commission on Jensen's ap- plication for unemployment compensation, which took place in the late fall of 1942, no mention was made of Jensen's telephone call to Patrolman Hulton, although this was a factor which, if true, would have established that Jensen was not asleep at his post of duty on the morning of September 8, 1942. Contrary to this finding, the record shows that at the unemployment compensation hearing, as at the hear- ing in the present proceeding, both Jensen and Hulton testified with respect to such a telephone call. However, we regard this fact as im- material, since it is clear that on September 8, when Jensen was ac- cused of being asleep at his post, he did not mention the telephone call to either Captain Berry or Chief Chapman. We are of the opinion and find, as did the Trial Examiner, that under the circumstances the respondent was justified in believing that Jensen was asleep at his post, and that such belief was the motivating factor in his discharge. On the basis of the record as a whole, we therefore agree with the Trial Examiner's finding that the respondent did not discriminate in re- gard to Jensen's hire and tenure of employment. Upon the entire record in the case, the Board makes the following : CONCLusIONs OF LAW 1. The operations of the respondent, Chrysler Corporation, High- land Park, Michigan, occur in commerce, within the meaning of See. tion 2 (6) of the Act. 2. International Union, United Automobile, Aircraft and Agri- cultural Implement Workers of America, Local 114, affiliated with the Congress of Industrial Organizations, is a labor organization, within the meaning of Section 2 (5) of the Act. 1P CHRYSLER CORPORATION 513 3. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (1) and (3) of the complaint, as alleged in the complaint. 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 complaint issued herein against the re- spondent, Chrysler Corporation, Highland Park Michigan, be, and it hereby is, dismissed. INTERMEDIATE REPORT Mr. Max Rotenberq, for the Board. Messrs Rathbone, Perry, Kelley and Drye, by Mr. T. R. Iserrnan and Mr. D. L. Hasttings, of New York City, for the respondent. Mr. John L. B. Cowden, of Detroit, Mich., for the Union. STATEMENT OF THE CASE Upon a second amended charge duly filed by International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, Local 114, UAW-CIO, herein called the Union and, at times, Local 114, the Na- tional Labor Relations Board, herein called the Board, by its Regional Director for the Seventh Region (Detroit, Michigan), issued its complaint dated June 29, 1943, against Chrysler Corporation, Highland Park, Michigan, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in sub- stance that the respondent: (1) interfered with, restrained and coeiced; its employees by (a) questioning employees concerning their union affiliation and attempting to elicit from them information concerning affairs and acti- vities of the Union; (b) disparaging and vilifying the Union to employees; (c) urging, persuading and warning employees to refrain from becoming or re- maining members of the Union; (d) threatening employees that they would be discharged or otherwise discriminated against if they joined or assisted the Union; (e) discriminating in enforcement of established rules in favor of employees known or believed to oppose organization; (f) advising its employees that the commanding military officer at its Tank Arsenal plant was angry because employees of the said plant were engaging in union activity, and threatening to procure the Army to take over the protection of respondent's plants with consequent loss of employment of present plant- protection employees if they organized ; (2) on or about September 8, 1942, discharged Jack Jensen because of his membership in and activities in behalf of the Union; and (3) by the foregoing conduct violated Section 8 (1) and, (3) of the Act. On July 8, 1943, the respondent filed a motion for a Bill of Particulars. This, motion was on July 30, 1943, granted in part by William B. Barton, a Trial Ex- aminer duly designated by the Chief Trial Examiner Pursuant thereto, the- 56 7 900-44-vol 54-34 Z14 -VEcisioNS OF NATIONAL LABOR RELATIONS BOARD respondent -was on August 13, 1943, furnished with a Bill of Particulars by the Regional Director of the Seventh Region On July 10, 1943, the respondent .filed its answer to the complaint admitting that on or about September 8, 1942, it discharged Jack Jensen, but denying that it had engaged in any of the unfair labor practices alleged in the complaint. Pursuant to notice, a hearing was held on August 19, 1943, through August 27, -1943, at Detroit, Michigan, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were ;represented by counsel, and the Union by a lay representative. All parties participated in the hearing Full opportunity to be heard, to examine and cross- examine,witnesses, and to introduce evidence bearing on the issues was afforded ,all parties. At the close of the Board's case and again at the close of the hearing, the respondent moved to strike the testimony of certain Board witnesses -These motions were denied by the undersigned. At the close of the'Board's case and at the close of the hearing, the respondent moved to dismiss the complaint. Ruling on the said motions was reserved, and they are disposed of in the body of this Report. Oral argument on the respondent's motion to dismiss was pre- sented by the respondent and the Board before the undersigned near the close of the hearing A motion by the attorney for the Board to conform the pleadings to the proof in .respect to formal matters was granted without objection. At the „close of the hearing, all parties were advised that they might file briefs with the undersigned, and pursuant thereto the respondent filed a brief and the Board a memorandum. Upon the record thus made and from his observation of the witnesses, the under- signed makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, Chrysler Corporation, is a Delaware corporation, having its -principal executive offices in Highland Park, Michigan It owns, operates and maintains manufacturing plans in Detroit and in Highland Park, Michigan, and in other cities and States. Prior to February 1942, the respondent was en- gaged in the manufacture of motor vehicles, service parts and accessories for such -vehicles, for sale to the public throughout the United States and many foreign countries. The production of such motor vehicles was at a rate exceeding $1,000,000 a year in value. Since on or about February 1, 1942, the respondent has been engaged almost exclusively in the manufacture of motor vehicles, arms .and munitions for the United States Government. In the usual and ordinary course and conduct of its manufacturing operations ,at its various plants, the respondent receives from sources outside the State in which each of its said plants is located, approximately 45 percent in value of the raw materials used by,it at each of the said plants. The aggregate value of -the said materials is in excess of $240,000,000 a year. It delivers substantially all of its products to the United States Government at the respondent's plant where the said products are manufactured. The Tank Arsenal, Highland Park and Jefferson-Kercheval plants, all located in or near the City of Detroit, Michigan, are the sole respondent operations in- -volved in this proceeding.' The undersigned finds that the respondent, the Chrysler Corporation, is en- gaged in commerce within the meaning of the Act. These findings are based on a stipulation entered into between the Board and the respondent. CHRYSLER CORPORATION II. THE ORGANIZATION INVOLVED 515 International Union, United Automobile, Aircraft & Agricultural Implement Workers of America. Local 114, affiliated with the Congress of Industrial Or- ganizations, is a labor organization and admits to membership plant protection employees of the respondent., III. THE UNFAIR LABOR PRACTICES A. Background The respondent, since 1937, has maintained collective bargaining relations with the UAW-CIO, or its predecessor, as representative of its production and maintenance employees. The respondent's contract with the said Union ex- pressly excluded plant protection employees from the bargaining unit. In the spring of 1941, United Protective Workers of America, an unaffiliated union, called herein the UPWA and, at times, the Union, began organizational activities among plant protection employees at respondent's Plymouth plant, and on August 1, 1941, filed with the Board a petition for certification as bar- gaining representative of the said employees. At the hearing held pursuant to this petition, and in subsequent hearings upon petitions by Local 114 involving plant protection employees of other plants of the respondent, the respondent asserted as its position ; that plant protection employees did not constitute an appropriate unit since they were identified with management and were not, therefore, employees within the meaning of the Act, and in any event, they should not be represented by the same union as production and maintenance employees,' since they exercised certain corrective and disciplinary functions in regard to the latter classifications of employees. The Board rejected the re- spondent's contentions in this respect, finding that plant protection employees constituted an appropriate unit 3 William, A. Bechill, superintendent of, plant protection during 1941 and until December 15, 1942, testified that "possibly" the corporation's position relative to organization of plant protection employees was communicated to the chiefs of the various plant protection units, but that-the chiefs were not instructed to transmit this information to the employees. Robert W. Cander, respondent's director of labor relations, testified that he discussed the corporation's position with Commissioner Gunner, head of the plant protection department, but never discussed it with Bechill or with his subordinates. The undersigned considers it entirely likely, in view of the public hearing in which the respondent's position was asserted, that its entire plant protection staff was acquainted with its posi- tion relative to the organization of plant protection employees. The respondent was clearly within its rights in asserting its position in public hearings bearing on the issue of representation, and no inference adverse to the respondent can be drawn therefrom, unless its policy as expressed in these hearings was brought to bear upon the minds of employees, through acts, statements or conduct which interfered with, restrained, or coerced them in their organizational activities. Bechill and Conder testified, and were corroborated by other of the respond- ent's witnesses, that prior to the filing of the UPWA petition on August 1, 1941, the supervisory staff of plant protection were instructed that they should not participate in organizational activities of employees, or interfere with or advise 2 The respondent contended that UPWA was not a bona fide labor union , being in fact a part of the UAW-CIO. The Board rejected this contention. 3 Matter of Chrysler Corporation and United Protective Workers of America, 36 N. L. R. B. 593. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them concerning their rights to organize. The said instructions were not, however, published to the employees. It is a firmly established principle that management, in issuing instructions of neutrality, is not thereby absolved from responsibility for anti-union statements and conduct of its supervisors, where the said instructions are not made known to the employees generally and where they are violated by persons identified with management. Organizational activities among plant protection employees of the Highland Park, Tank Arsenal, and Jefferson-Kercheval plants, the sole plants involved in this proceeding, appear to have started in the summer of 1941, and it further appears that union activities in these plants were initiated by employees from the respondent's Plymouth plant. It was not, however, until on or about the summer of 1942 that petitions for certification involving plant protection em- ployees of these latter plants were filed with the Board. On or about June 16, 1942, the UAW-CIO succeeded to the membership of the UPWA in the plants herein involved, and Local 114, the Union upon whose charge the complaint in these proceedings was issued, was chartered by the UAW-CIO on that date. Pursuant to the Board's Decisions and Directions of Election,' an election was conducted at the respondent's Highland Park plant on October 28, 1942, with the result that 52 votes were cast for Local 114 and 2 against. Local 114 was accordingly certified as bargaining representative of plant protection em- ployees of the Highland Park plant. On January 26, 1943, an election was conducted among plant protection employees of the Jefferson-Kercheval and Tank Arsenal plants, and certain other plants not involved in this proceeding At the Jefferson-Kercheval plant 83 votes were cast for Local 114 and 1.3- against; at the Tank Arsenal 64 votes were cast for Local 114 and none against. On February 6, 1943, the^Board certified Local 114 as bargaining representative at these plants, as well as at others where it had received a majority-vote. During the course of the hearing in this proceeding, a contract was executed by Local 114 and the respondent, covering plant protection employees at the Jefferson-Kercheval plant and certain other plants where Local 114 had been certified as bargaining representative. John L. B. Cowden, recording secretary of Local 114, stated on the record in this proceeding that the respondent had bargained in good faith in the negotiation of the said contract. All unfair labor practices alleged in the complaint of the present proceeding occurred during the preiod following organizational activity at the Plymouth plant in the spring of 1941 and prior to October 1942. The Tank Arsenal, Highland Park and Jefferson-Kercheval plants, and each of them, have their own supervisory staff of plant protection, headed by a chief of plant protection, whose supervisory subordinates, in descending scale of rank, are : Captain, sergeant, relief sergeant. Non-supervisory plant protection employees are called patrolmen. B. Interference, restraint, and coercio.a 1. The Tank Arsenal The only evidence of interference, restraint, and coercion occurring at the Tank Arsenal plant is contained in the testimony of Board witness Gerald M. Hazel- ton. According to Hazelton, on three occasions , in May, July, and September, 4 See Matter of Chrysler Corporation, Highland Park Plant and Local 11111, International Union, United Automobile, Aircraft & Agricultural Implement Workers of America (UAW- CIO), 44 N L R. B. 881 ; and Matter of Chrysler Corporation and Local 1111, International Union, United Automobile, Aircraft & Agricultural Implement Workers of Ante) tea (UAW- CIO), 46 N. L. R. B. 411. CHRYSLER CORPORATION 517 1941, respectively, Allen Limburg, chief of plant protection at the Tank Arsenal, called him to his office and questioned him concerning his union activities. On the first of these occasions , Limburg asked him if he belonged to the Union or had been approached to join. Hazelton replied that he did not belong and had not been approached. Hazelton's testimony concerning the alleged July Conference was substantially the same. He testified that in September , after having ques- tioned him as he had on the two prior occasions , Limburg stated that a Colonel Rhemm had heard about union activities among plant protection employees, and had said that the Army would take over "if there was any more of it." Accord- ing to Hazelton, he replied that he did not belong to the Union and "was not going to be a stool pigeon." Hazelton was, during the period of these alleged con- ferences, a patrolman under the general supervision of Chief Limburg. He joined the Union in March 1942. On cross -examination, he admitted that in March or April 1941, he was discharged by Limburg on the grounds of insubor- dination He was thereafter reinstated , and he testified that for a month or so following his reinstatement , Limburg was not "too cooperative." Limburg admitted that he had conversations with Hazelton on numerous oc- ,casions, but denied having questioned him concerning his union membership or having made the statements attributed to him by Hazelton . He testified that he learned of union activity among employees of the Tank Arsenal in the fall of 1941 through reports of his subordinates , but denied knowledge of Hazelton:s n nion affiliation . He testified that Colonel Rhemm was "constructing quarter- master of a new plant for the Army," and had no connection with plant pro- tection employees. It is not plausible that Limburg would, shortly after discharging a patrolman for insubordination, call him to his office for the purpose of seeking to gain from him information concerning union activity , or that he would on successive occasions make identical inquiries of the same employee. It further appears that it was months after the alleged conversations that Hazelton affiliated with the Union, and there is nothing in the record which would indicate that Limburg at the time of the alleged conversations had any ground whatever for assuming that Hazelton was active in the Union , or had any knowledge concerning such activi- ity. The undersigned finds that Limburg did not make the statements attributed to him by Hazelton and, since there is no further evidence of unfair labor practices occurring at the respondent's Tank Arsenal, the undersigned will recom- mend dismissal of the complaint insofar as it involves the Tank Arsenal plant. 2. The Highland Park plant Moses E. Brow, a Board Witness, testified that on or about April 12, 1942, when lie was employed as a patrolman at the respondent's Highland Park plant, Relief Sergeant William J Merrow came to the gate where he was on duty and remarked, "I see all the boys are wearing their buttons," Merrow then asked, "What do the boys in the Union want?" Brow replied, "Why should I tell you? You couldn't help us any." Merrow then said, "Well, I just wanted to know for curiosity sake," to which Brow replied, "Well, we want more money for one thing " Merrow said, "I think we are the highest paid plant protection depart- ment in the City now." Discussion followed concerning relative wage rates of plant protection employees of various companies Brow affiliated with the Union in December 1941 and had been transferred to the Highland Park plant only a few days prior to the alleged conversation with Merrow. Merrow did not testify and, since Brow was a credible witness, the undersigned finds that Merrow made the statements substantially as attrib- uted to him by Brow. 518 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD A relief sergeant serves in the absence of a sergeant and when so serving, performs all of the ordinary functions of a sergeant. The undersigned finds that a relief sergeant is a supervisor, whose statements and conduct are attrib- utable to management The undersigned is convinced, however, that the state- ments attributed to Merrow by Brow represented no more than an isolated ex- pression of opinion by a minor supervisor, appearing in a context of casual discussion, and do not embody such elements of interference, restraint, and co- ercion that it may reasonably be said that through the aforesaid statements, the respondent has violated the Act. Since there is no further evidence of unfair labor practices occurring at the respondent's Highland Park plant, the under- signed will recommend that the complaint be dismissed, insofar as it involves this plant. 3. The Jefferson-Kercheval plant Arthur McKenna. a patrolman and Board witness, testified that in August 1941, at a time when Captain Douglas W Berry was acting chief of plant protection, ,he was summoned to Berry's office. He testified concerning 'the conversation which ensued : Well, Captain Berry asked me if there had been anybody at my house the day before and I said, "Yes" He said, "What were they there for?" and I told him they were there to organize the union and I told him I joined it and he. asked me if I thought I would benefit anything by it and I said I didn't know. He said, "Suppose they put you on an hourly rate," and I said, "Well, if they- do, I can't stop it. I don't know anything about whether they will or not." All patrolmen were on a salary basis at the time of the alleged conversation„ as well as subsequently. Berry admitted on cross-examination that he called McKenna to his office while- he was acting chief during the summer of 1941 He testified that calls had been received at the plant requesting McKenna's telephone number and, since a patrol- man's private telephone was considered confidential, he summoned McKenna to his office to advise him of the inquiries. According to Berry, McKenna vol- unteered the information that union men had come to his house to solicit his- membership and that he had joined. He denied that he made the statements. attributed to him by McKenna. Berry further testified that he,had received information from various, patrol- men and "officers as well," that union employees of the respondent's Plymouth plant were making a "complete circuit, contacting all of our men at the Chrysler Kercheval Plant." Berry admitted that union activities of patrolmen were- discussed at meetings of officers, and testified, "Different information that I- would hear, Captain Thornton would hear, Captain Cornish would hear, nat- urally, we would discuss those subjects." He also admitted that during the- period when he was acting chief, lie made several reports to Superintendent' Bechill regarding organizational activities of the patrolmen. Berry testified, "Any time I received any information in regards to the activities, I immediately- related to my superior, and that's all there is " Further excerpts from his. testimony follow : Q. Now what activities did you report to your supervisors? A. Well, such as union employees coming from the Plymouth plant visit- ing our patrolmen at their homes. Q. What other matters did you report to him [Bechill] concerning labor activity on the part of the plant protection employees? CHRYSLER CORPORATION 519 A. Occasionally we would get a call from the post that union men was' bothering the men at their work, and I would investigate, and we would= report to the Chief. Q. Do you recall any specific conversation with the Chief at which time you can tell us now about what he said to you and what you said to himF, other than the general matter you testified about? A. Not any more than when I gave him this information he has told me, I know, different times, that he didn't care what the boys did on the outside- of the plant. McKenna was a credible witness, and in view of the entire testimony, the undersigned finds that Berry called McKenna to his office to question him con- cerning union activities and, upon McKenna's admission that he had joined the Union sought to discourage him in his union affiliation by suggesting that the, Union, if successful, might bring about a change in his status from a salaried' to an hourly paid employee. Board witness Paul F. Rolens, a patrolman, testified that on or about Novem- ber 1941, Chief Oscar L. Chapman came to the gate where he was on duty with another patrolman, and asked him to go into the conference room Rolens testi- fied concerning the conversation which ensued in the conference room : "Well, I come out-right and told him that I belonged to it [the Union]. As far as I can remember, I don't think the Chief asked me if I belonged." According to, Rolens, Chapman then asked him if he was satisfied with his job, and if he thought "outsiders" could get more for him or the men. Rolens replied that he was chiefly interested in obtaining seniority rights which were not then recognized by the company. Chapman then said that there were "lots" of old men in the company's employ, and it was not the company's policy to discharge an employee when he got old Rolens testified that he joined the Union on or about October 1941 and that there were only some 12 members at the time he joined He had never been called into conference with Chapman prior to the occasion referred to in his testimony, though he had been employed by the respondent since 1932. Chapman admitted on cross-examination that he called Rolens off his post and talked to/him in the conference room, but testified that he had no knowledge of Rolen's union affiliation until Rolens mentioned it. He stated that he had not previously talked to Rolens since becoming plant protection chief,' and further testified concerning the incident : There was a number of things we talked about in the conference room. I do not recall what they were-about the job and one thing and another. Rolens is a peculiar sort of a fellow and I did not know-did not seem to be satisfied, He testified that he had called other patrolmen than Roleas from their post of duty to talk to them, but was unable to recall any other specific instance of such action. He did not remember having asked Rolens if he thought "outsiders"' could get more for him than the company. In the light of the entire testimony, the undersigned is convinced and finds that Chapman made the statements substantially as testified to by Rolens, and that by the aforesaid statements, sought to discourage Rolens in his union activities. Board witness Walter Patrick Conlan, a patrolman, testified that he joined . the Union in January 1942, but aside from being a member, was not active in c Chapman was appointed chief of plant protection March 1, 1941. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD behalf of the Union. In February,° Sergeant Edward H. Piel came to the gate where he was on duty and, after stating that Conlan was a good patrolman and would advance in his, work, asked Conlan if he "had heard of any union activi- ties." According to Conlan, he replied, "What's the matter, are you organizing?" Whereupon Feil remarked, "Well, some men can't be satisfied ... If you hear of anything, give me a buzz." Piell admitted that he was Conlan's supervisor for a period, but denied that he had a conversation with Conlan regarding the Union at any time. He stated that he first learned of union activities among the patrolmen in the summer of 1941 when he "surmised" that the men were organizing "from the activities of the boys in the squad-room." He was unable to recall whither he noticed Con- ]an among the groups whom he suspected of being engaged in organizational activities. Except for some uncertainty as to specific dates mentioned in his testimony, Conlan was on the whole a forthright and credible witness. On the basis of the entire testimony, the undersigned is convinced and finds that Piel questioned Conlan concerning union activities, and suggested that Conlan report to him anything that he might hear with reference to organization of patrolmen. In March 1942,7 according to Conlan, Captain Clyde Thornton approached him at the post where he was on duty, and asked him if he belonged to the Union. When he replied that he did, Thornton asked him "what the hell" he belonged to a union for. Conlan said, "Well, my brothers were in the last war, and I am going in this war,' and I want job security when I come home." Thornton remarked, "You can get into a lot of trouble," and left Conlan at his post. A few days after this conversation with Thornton, Conlan was-called to Chief Chapman's office. He testified concerning the incident : Grandshaw [acting Sergeant Cranshaw] came to the gate and told me the Chief wanted me. I went in the office and the Chief said that he had heard I was talking not pertaining to plant protection, and I asked him what r was talking about. He said, "You know what you were talking about," and then he said, "You heard about a man losing three days or five days, and that wasn't for reading a newspaper." Conlan testified that he understood Chapman to be referring to Dale Mitchell, -one of the first "organizers" of the Union, who prior to this conversation, had been given a disciplinary lay-off.' Thornton, when questioned concerning the alleged conversation with Conlan, first testified, "I never had a conversation with Patrolman Conlan at all per- taining to anything," and "He never worked enough on my shift ever to get acquainted with him." Thornton later admitted that Conlan was under his super- vision for 28 to 30 days and that subsequent to Conlan's discharge 1and rein- statement-the dates do not appear in the record-he reprimanded Conlan and talked to him on several occasions. He testified-"I probably talked to him on this job, or something pertaining to the work. I don't now just remember. Maybe two or three times I talked to him " Thornton further testified that he had occasion to talk to "dozens" of patrolmen about the Union when they came in and asked his opinion, and that his answer was always that he "was 6 Conlan testified on direct testimony that the alleged conversation with Piel occurred I. November 1941. 7 Conlan first placed the date of this conversation as February. 8 Conlan resigned from his employment with the respondent prior to the hearing, prepara- tory to induction in the armed forces. ° There is no allegation that Mitchell was actually laid off because of his union activities and, therefore , the lay-off itself is not in issue. CHRYSLER CORPORATION 521 not interested in the union at all." He also admitted that he reported some though not all, conversations he had with patrolmen regarding their union activities, to his superior. Chapman admitted that he called Conlan to his office, but testified that this was after lie had received a report that Conlan "was doing a lot of unnecessary talking while he was working, bothering other men who were working" He testified that he cautioned Conlan "about bothering men in their work with conversations that didn't pertain to plant protection." He admitted that he knew that Conlan was active in the Union at the time he talked to him and that it had been reported to him that Conlan was talking about the Union, but testified that he did not reprimand him just for talking about the Union. Ac- cording to Chapman, Mitchell's name was brought into the conversation when Conlan asked if Mitchell had been laid off for his union activities. He testified that he replied to Conlan, "Absolutely not. Patrolman Mitchell was laid off for reading a newspaper and being off his post about 600 feet." Chapman ad- mitted that at the time of his lay-off, Mitchell asked if tie was being laid off because of his union activities. The undersigned is convinced and finds that the conversations between Conlan and Thornton and Conlan and Chapman occurred substantially as related by Conlan. It is clear from all the testimony, that respondent's supervisors were alert to all organizational activities of patrolmen, and regularly reported to, their chief concerning organizational activities of patrolmen which had come under their observation. The undersigned is convinced and finds that the said reports were not limited to organizational activities during working hours. Conlan denied that he engaged in union activities during working hours, and there is no evidence that he did, except Chapman's uncorroborated testimony that it had been reported to him that Conlan had been thus engaged. The undersigned credits Conlan's denial that he engaged in union activities during working hours, and finds that Chapman called him to his office to warn him and otherwise to discourage him from engaging in union activities, without ref- erence to his working hours. For a proper evaluation of the foregoing testimony it is pertinent to refer to respondent's rule on solicitation. This rule appears in a booklet entitled "General Information For Employees." Its entire context follows : Excepting the activities that have been approved or sponsored by the Chysler Industrial Association, no employees are permitted to sell tickets, solicit contributions, or to promote social, recreational, or other activities on the Company's property to The above rule appears to have been promulgated on a date prior to be- ginning or organizational activities among Chrysler employees and is not re- stricted to plant protection employees, but applies to all employees of the corporation. The Board has consistently held that, while it normally is not improper for an employer to prohibit his employees from engaging in union solicitation during working time," a rule, prohibiting union activity on company property outside of working time constitutes an unreasonable impediment to self-organiza- tion.12 The respondent's rule, literally construed, contains such a prohibition, "The identity of the Chrysler Industrial Association was not developed in the record, but is immaterial insofar as the rule relates to the issues in this proceeding, since it is clear from the entire testimony that the rule imposed a prohibition on organizational activities of patrolmen. 11 See Matter of Peyton Packing Company, 49 N. L, R. B 828 Matter of Republic Aviation Corporation, 51 N. L. R. B 1186, and cases cited therein. Z22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the record of this proceeding divulged no special circumstances which would justify the application of the rule beyond working hours 18 Clearly, the existence of this- rule on solicitation afforded the respondent's -supervisory personnel no license for prying into organizational activities of employees, or for questioning them concerning the said activities and reprimand- ing them therefor, without specific reference to working hours The undersigned accordingly finds that the statements and conduct, of respondent officers Piel, Berry, Thornton, and Chapman, as set forth above, exceeded a proper and lawful application of the rule on solicitation, and constituted interference, restraint, and coercion within the meaning of Section 8 (1) of the Act." C The discharge of Jack W Jensen Jensen was employed as a patrolman at the respondent's Jefferson-Kercheval plant in 1936, and worked continuously in that capacity thereafter until September 8, 1942, when he was discharged. At the time of, and for some years prior to, his discharge he was a class A. patrolman, the highest rank accorded a patrol- man.15 From a starting salary of $125 a month, he received a number of wage increases and at' the time of his discharge, was receiving about $177 a month, the maximum salary paid patrolmen. Jensen joined the UPWA in the fall of 1941, but it appears from his testimony that he did not actively participate in organizational efforts until after Local 114 succeeded to the membership of. UPWA, on or about June 16, 1942. Subse- quent to that date, he at times wore a union button and solicited memberships for the Union outside of working hours. He testified that he would distribute union cards outside the company premises on his way home and that some em- ,ployees would sign these cards and hand them back to him the next day. He also .testified that outside of working hours, he may have discussed the Union with fellow employees in respondent's squadroom. On or about June 15, 1942, according to Jensen, he was called to Chapman's office where Chapman told him that he had had several complaints about Jensen's talking about things "riot pertaining to Company business." Jensen said, "Well, I don't know what that would be . . All the boys talk, pass the time of day, ,and so on . . . I am sorry, but I don't know just what you mean, Chief . . ." Chapman replied, "you know what I mean" and "All I can say is that it is not pertaining to Company business, and if I were you, why, I would stop it." Chapman denied that he ever talked to Jensen about the latter's union activity. The undersigned has found above, that Chapman called Patrolman Conlan to his office and warned hun against engaging in union activities on company premises, without reference to working hours. While he avoided specific men- 13 An interpretation of this rule by the respondent in its future dealings with its em- ployees which would place a restriction on normal union activities during the employee's -own time would, of course, be violative of the Act. 14Boaid witnesses Madsen and Leo L. Green testified concerning certain alleged state- ments of Sergeant George Hope, and Green testified concerning an interview with Chapman in the latter's office The undersigned finds that the statements thus attributed to Hope and Chapman, consideied in the light of the entire testimony, were not violative of the Act. Green further testified concerning certain alleged statements and conduct of Captain Thornton. The 'undersigned found Green's entire testimony unconvincing and credits Thornton's denial of the statements and conduct attributed to him by Green. Madsen ,also testified that in June 1942, Chapman called him to the latter's office and reprimanded him for engaging in union activities during working hours This testimony, undisputed, is credited, but since Madsen admitted that Chapman's admonitions were directed solely to his activities during his working hours, the undersigned finds that the statements and conduct thus attributed to Chapman were not violative of the Act 's Patrolmen are classified as A, B, and C in descending order of rank and wage brackets. Captain Berry testified that within the aforesaid classifications, patrolmen were also rated good, average, and fair. According to him, Jensen was only fair. CHRYSLER CORPORATION 523 -tion of the Union, Chapman so worded his remarks that the employee would have no doubt that he referred to organizational activities In view of the entire testimony, the undersigned is convinced and finds that Chapman made the state- ments substantially as attributed to him by Jensen, and that the statements bore a thinly disguised warning that Jensen should desist from his union activities. A few days after this interview with Chapman, according to Jensen, Captain Berry called him away from his post and told him that he understood that Jensen had some "air raid warden cards" that he was asking the patrolmen to sign Jensen replied that he did not know anything about air raid warden cards, whereupon Berry questioned him, "Well, . . . haven't you got some cards that you are wanting some of the boys to sign?" When Jensen responded in the negative, Berry said, "Well, . . . forget, about it . . . maybe there is nothing to it anyway." Berry admitted that he had it conversation with Jensen in June or July 1942 substantially as testified to by Jensen. He stated that it had been reported to him that Jensen was having cards signed during his working hours, and it is clear from his subsequent testimony concerning his knowledge of Jensen's union activity, that he understood these cards to be union cards. He stated that he did not report the incident to his superior, Chapman. He did not divulge from whom he allegedly received the information that Jensen was soliciting for the Union during working hours. The undersigned credits Jensen's testimony that he did not engage in or- ganizational activities during his working hours, and finds that the respondent through the statements and conduct of its officer, Berry, in questioning Jensen concerning his union activity, and Chapman's veiled warning that Jensen should refrain from engaging in union activity, interfered with, restrained, and coerced its employees within the meaning of Section 8 (1) of the Act. Prior to June 1942, Jensen had been guilty of numerous minor infractions of rules applicable to patrolmen. There were received in evidence numerous reports of various plant protection officers, some of them dating back as far as 1938, relative to Jensen's infractions of rules Jensen admitted that prior to his discharge, he had been reprimanded for such rule infractions as using the company telephone for private calls, for not having shaved before reporting for work, for not having his pants pressed, for not having his shoes shined, and for hopping on a lunch wagon for a ride while on duty. Thornton, Berry and Chapman testified to other incidents of like character when Jensen was rep- rimanded. It would appear, however, that the respondent regarded most of these incidents as minor infractions, since during the entire period of his employment prior to June 1942, he was never given a disciplinary lay-off or other penalty, and as late as 1941 his wages were substantially increased Chief Chapman testified that some 2 to 21/> months prior to Jensen's discharge, he asked Super- intendent Bechill to talk to Jensen and "get him straightened out," but that all the violations prior to that seemed too minor to call for a discharge. Chapman further testified that on August 6, 1942, he called Jensen to his office and reprimanded him for repeated rule infractions Chapman testified that he regarded certain of these incidents of alleged rule violations as serious, and mentioned specifically Jensen's continued use of the telephone for private calls,16 and an occasion when he allegedly found Jensen inside a booth talking, u While this rule was in existence prior to the conversion of respondent's plant to war industry, admittedly it was not strictly enforced prior to that date. Subsequently, how- ever, a stricter enforcement was sought, since use of company telephones by patrolmen for private calls night seriously hamper the respondent in matters arising from military alerts and similar occurrences. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when he should have been outside watching the gate According to Chapman, on th.s latter occasion he threatened to discharge Jensen if he ever caught him neglecting his work again. This testimony, denied by Jensen, was cor- roborated by Thornton. and is credited A memorandum which Chapman testi- fied he made contemporaneously with the August 6 incident, stated, inter alia: He [Jensen] was told that any other reports coning to me in regards to neglect of duty or insubordination would be dealt with in a more severe manner. Jensen denied Chapman's testimony relative to the alleged August 6 interview, but admitted that Chapman had discussed with him specific reports of rule violations received from his subordinates Jensen testified, "I can't recall the exact dates, but there has been times, that he called me on some of the reports that were against me." Jensen further testified that in July or August Chapman called him to his office and told him, "I called you in this time not to bawl you out, merely to warn you." Jensen stated that he did not know what Chapman was talking about. to which Chapman replied, "You know what I mean . . . I sent for you to warn you so that if anything happens you won't come back later and say that you were not warned " In view of the several reports of rule infractions in the period preceding August 6, and Jensen's admission that Chapman had discussed such reports with him on dates which he (Jensen) could not remember, the undersigned finds that the August 6 interview occurred substantially as related by Chapman. On or about August 18, 1942, Jensen was given a 2-day lay-off, following his further alleged violation of company rules. On the Friday night preceding this lay-off, Jensen had had his car washed in the respondent's service garage, and had paid a negro employee 50 cents to do this work instead of paying the usual service charge of 75 cents to the company. Such action was contrary to company policy.14 On the following night lie left his car in the service garage for repairs, and the next morning asked Pa`rolman Janis, a comparatively new employee, to run his car out of the garage for him. Janis declined to do this, and Jensen, was required to pay a service charge of some $8 for repairs done on the car before he was given the customary pass to take the car out It was the respondent's contention that Jensen attempted to get Janis to drive his car out of the service garage without a pass, to evade payment of the charge on repairs. Jensen testi- fied that he had no thought of evading payment of his service bill, and that he had on prior occasions taken his car out when there was a charge against it, and had paid the service charge later. He admitted , however, that on these prior occasions he had "made arrangements " with respondent's cashier, Dick Rasmussen. Since the Board did not allege the August 18 lay-off was discriminatory, it is needless to review all of the testimony on this topic. In September 1942, Jensen was assigned to a night shift with hours from 10 p. m. to 6 a. m. o'clock. On September 7 he went to work at his usual hour and was assigned to a "four post swing," by which he alternated with other patrolmen on four different posts of duty. From I to 2 a. in., September 8- Jensen was on duty at the Kercheval tower, a structure some 35 feet high. i7 Jensen testied that he knew of no rule prohibiting payment to an individual for services in washing a car in respondent's service garage In a bearing on his claim for unemploy- ment compensation before the State Commission , subsequent to his discharge by the respondent , he testified as follows : Q. Did you ever hear that the washer is permitted to collect for washing cars? A. He is not. CHRYSLER CORPORATION 525 surmounted by a booth approximately 4 by 4 feet in dimensions. An outside stairway leads from the ground to a small platform just outside the booth. Open- ing into the booth from the platform is a glass paneled door and all sides of the booth have glass panels through which the patrolman on duty can observe the surrounding premises. There is no light inside the booth, but the buildings and grounds outside are brightly illuminated. Soon after going on duty in the tower, Jensen ate his lunch and then had a smoke. He testified that at about 1: 40 a in. he saw a car drive into the parking lot for salaried employees, at a distance of some 200 to 300 yards from the tower. The car' drew to a stop and then flashed its spotlight directly on the tower. According to Jensen, he did not recognize the car as a patrol car and therefore did not return its signal, nor did he report the occurrence to the office, although he testified, "At that time it aroused my suspicions, so I watched the car going ^out.s38 He stated that he would have notified the office if the car had stopped as it was leaving the parking lot. Shortly after noticing the car drive in and out of the parking lot, Jensen saw patrolman Elmer Steffen, who was to relieve him in the tower at 2 a. in, coming out of a building at a point which Steffen normally would reach at about 1: 45 a. in. Jensen looked at his watch and, since it showed the time to be only 1: 20 a. in., he realized that it had stopped.. He thereupon dialed a number to reach patrolman Thomas Hulton, who was at that hour on duty at the Kercheval gate. Hulton answered the phone and advised Jensen that it was then 1: 45 a. in. According to Jensen, as he was talking to Hulton, he saw the patrol car come into the driveway and told Hulton "Here comes a car," and hung up. As it approached the tower the patrol car crossed some railroad tracks and at that point the headlights of the car flashed and the flash was answered by patrolman Steffen. Jensen recognized Captain Berry in the patrol car. Berry parked the car near the tower and came up the steps to the platform outside the booth. Jensen testified that he looked up and said, "Hello, Captain," and that Berry inquired, "What's the matter, Jensen." When Jensen replied, "Not a thing,",Berry accused him of having been asleep. Jensen denied that he had been asleep, whereupon Berry asked him why he had not answered his (Berry's) signal. According to Jensen, he replied, "I did not know whether you were flashing at Steffen or flashing at me, or who you were flashing at. You flashed your lights. Steffen flashed at you so I did not pay more attention to it." Berry asked Jensen to state the route by which the car had approached the tower. When Jensen had answered, Berry said, "I am sorry, Jensen . . . I do not like to do this . . . in view of what just happened here a couple of weeks ago, but I am going to have to send you home "'9 Berry then relieved Jensen of the latter's gun and called the office for a relief patrolman. Patrolman Hulton, who appears to have been the Union's shop steward, testi- fied in corroboration of Jensen, that Jensen called him by phone at 1: 45 a. in. and asked for the time. Patrolman Steffen testified that at or about 1: 45 a. in. Captain Berry passed close to where he was on duty and that as the patrol car went over some railroad tracks, its lights were flashed and he returned the flash, and Captain Berry threw tip his arm in recognition. He testified that Berry 18 Jensen testified that patrolmen , when signaled from a patrol car, were customarily required to give an answering flash . He stated that Captain Berry was particulaily strict in enforcing this rule . In view of the entire testimony the undersigned is convinced and finds that it was a general and well understood rule that patrolmen were required to give an answering flash when signaled from a patrol car. 19 The Record does not reveal any incident occurring 2 weeks prior to September 8 which would throw any light on the reference in Berry's alleged statement to Jensen, unless it was Jensen's lay-off which occurred on or about August 18. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was cruising very slowly and that the lights on the car flickered as it hit the railroad tracks He admitted that this could have been caused by the car bump- ing across the tracks. He further testified that it was customary that when an officer flashed his lights, the patrolman would give an answering signal. Captain Berry testified that shortly after 10 p. in. on September 7, the plant was notified of a special Army alert and advised to "Be on the special alert over the Labor Day week-end along fence lines, or any unusual conditions." He testified that notice of the alert was communicated to all patrolmen and his testimony in this respect was corroborated by Sergeant Hope, who testified that he notified all patrolmen on duty that he could reach by telephone of the alert, among these being patrolmen Hulton and Jensen. There was no specific denial' of this testimony and it is credited. According to Berry, he made an inspection tour of the plant in his patrol car starting at about 1: 40 a. in He drove into the parking lot for salaried employees, stopped, and flashed his lights several times straight ahead toward the Kercheval tower. He stated that he could see the figure of a man outlined in the booth, but did not at that time know what patrolman was assigned to the Kercheval tower. When he received no answering flash from, the tower, he turned his spotlight directly on the booth When there still was no answering signal from the tower, he backed his car out of the parking lot and drove toward the tower. Berry denied that he flashed his lights on passing the railroad tracks, but admitted that patrolman Steffen gave him a flash as he went by, and that lie threw up his hand in response. Since Steffen, admitted that the flash from the patrol car may have been caused by the car bumping across the tracks, the undersigned credits this testimony. Berry parked his car about 70 feet from the base of the tower. He testified that he then got out of the car and flashed the tower with his pocket flashlight- Receiving no response, he then climbed the steps to the platform outside the booth and saw Jensen sitting down inside the booth with his eyes closed. He had stood there on the platform only a moment when Jensen raised his bead and said "Hello, Captain " Berry testified that a patrolman customarily stood up and met his superior officer at the door, and that this was a "courtesy that most of the men extended very readily" but that Jensen remained seated:' He accused Jensen of having been asleep, a charge which Jensen admittedly- denied. Jensen made no mention of the matter of the telephone call which allegedly he had made just a few moments before. Berry relieved Jensen of his gun and instructed him to go home. Instead, of going home as instructed, Jensen went to the squadroom where Berry saw him later and asked him what he wanted Jensen said that he- would like to talk to Berry, and Berry called him into the latter's office where Sergeant Hope also was present. Jensen objected to talking in the presence of Hope and Hope left the room. Jensen then stated that lie thought he was entitled to have a union representative present and Berry replied, "As far as I know, you are, but not at this hour of the night. You can bring your repre- sentative back tomorrow and see the Chief" Jensen declined to talk in the absence of a union representative and returned to the squadioom, but still did not leave the plant. Berry, finding him at a later hour in the squadrooui- asked him why he had not gone home as instructed. Jensen testified that he replied, "Not for any particular reason, only I feel that I'd just as soon wait around until six o'clock and go home when the rest of the boys go." Berry then said, "There is no use in your making it any harder or tougher on yourself by staying here . . when I told you to go home," to which Jensen replied,. CHRYSLER CORPORATION 527 "Well, I would rather stay and go home at the usual time " Jensen remained in the squadroom until 6 a. in, the end of his customary work shift. On Jensen's failure to leave the plant, Berry called Chief Chapman at the latter's home and reported on having found Jensen asleep and on Jensen's refusal to leave the plant as directed According to Berry, Chapman advised' bun that "As long as he doesn't leave the squadroom, we don't care if he does stay all nighty"-or words to that effect Chapman, however, testified that he regarded Jensen's failure to obey Berry's instructions to leave the plant, a serious offense. Berry stated that he made no 'recommendation to Chapman concerning the penalty to be imposed on Jensen, and Chapman also testified that he did not confer with Berry relative to Jensen's discharge further than to receive Berry's report. As he was about to leave the plant at 6 a in., September 8, Jensen found that his time card had been removed from its customary place and asked Berry, "What does that mean, I am through?" Berry replied, "I did not say that. You come in and see the Chief today and he will explain everything to you . ." Chapman testified that Jensen's time card was removed in order that he should not receive pay for the time following Berry's instructions that he was to go home. Chapman testified that lie came to the plant at 8 a. in., September 8. and read the report which Captain Berry had made out on the incidents related above He stated that from Berry's reference in the report to Jensen's request for union representation, he learned for the first time of Jensen's union affilia- tion. Prior to September 8, Jensen had word a union button in the plant,20° had been questioned by Captain Berry relative to having union cards in his possession, and, as previously found, had been reprimanded by Chapman for engaging in union activity The undersigned is therefore unable to credit Chap- man's denial of knowledge prior to September 8, of Jensen's Union affiliation. In any event, Chapman admittedly had knowledge of Jensen's union affiliation at the time he discharged Jensen. On the morning of September 8, Chapman received a call from union representative Eckart. Eckart asked if Jensen had been discharged and Chap- man replied that lie had not, whereupon, according to Chapman whose testi- moliy is undisputed, Eckart said, "Well, if you are taking the word of an officer that he was asleep, we will fight the case." Jensen reported at Chapman's office that afternoon and, on being questioned by Chapman, again denied that he was asleep in the Kercheval tower. According to Chapman, when questioned why he had not answered Berry's signal, Jensen replied that he thought the rule had been changed since the patrolmen had been sworn in as members of the auxiliary military police. It was Jensen's theory that it was not wise to flash lights from posts of duty since it would give away the position in case of saboteurs, and lie testified that he had expressed this opinion to Berry. The undersigned believes that Jensen was mistaken in this testimony and that lie offered this as an explanation of his failure to respond to Berry's signaling, to Chapman on the occasion of his discharge. Jensen also testified that he was prevented by Chapman from giving a full explanation of the incident. The undersigned is convinced from the entire testimony that both in his' interview with Berry and with Chapman, Jensen mJensen testified that he wore a union button at times on the inside of his tie, at other tines on the outside of his tie or his coat He testified that he wore the button outside on his tie on at least one of the occasions, prior to September 8, when he was inteiviewed by Chapman in the latter's office Chapman while adnnttmg that lie had obseived union buttons on other employees testified that he was "positive" lie had never seen one woia by Jensen 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was afforded an ample opportunity to state his position with reference to the charge that he was asleep. The interview with Chapman was concluded when Chapman advised Jensen that he was discharged, and gave him the usual separation papers which had been prepared in advance of the con- ference. Chapman stated that the discharge was based on Jensen's record of accumulated rule violations, climaxed by his sleeping at his post of duty. The undersigned considers it significant that at no time prior to his dis- charge did Jensen advise either Berry or Chapman of the telephone call to patrolman Hulton allegedly made at or about 1: 45 a. in. on September 8, and that throughout the hearing before the State Unemployment Commission on Jensen's application for unemployment compensation, which took place in the late Fall of 1942, no mention was made of this incident, though Jensen and others testified at length in that hearing. Certainly the telephone call was a factor which, if true, would establish beyond all reasonable doubt that Jensen was not asleep at his post of duty on the morning of September 8, and it is incredible that he would fail to offer this in defense against discharge and in support of his claim for unemployment compensation, if it were true. The undersigned also found Jensen's explanation of his failure to return Berry's flash from the parking lot unconvincing, since he admitted that the car turned its spotlight directly on the tower. Assuming that he did not recognize the car as a patrol car and therefore did not consider that he was required to respond to the signaling, it was still his duty to report the incident to the office since the parking lot for salaried employees was in an area directly under his observation as a patrolman on duty.n It further appears, on the basis of Jensen's own testimony, that during the hour lie was on duty in the Kercheval tower on September 8, he was guilty of other rule infractions. It was his duty to report to the office at 1: 15 a. M. and again at 1: 45 a. m. He made the 1: 15 report on schedule, but admittedly failed to make the 1: 45 report. His explanation of, this omission was that since Steffen was approaching to relieve him, he thought it was more important to prepare for relief than to make the call. It was also an infraction of the rules when he made a personal telephone call to, Patrolman Hulton to learn the correct time, and prior to this, on at least two occasions, he had been reprimanded for use of company telephones for private calls. His proper action ,on finding that his watch had stopped would have been to call the office, and he might at the same time have made his 1: 45 report. The totality of these circumstances: (1) his failure to respond to Berry's signaling; (2) his failure to make his customary report to the office at 1: 45 a. m.; and (3) his failure to make any mention of the alleged 1: 45 telephone call to Hulton, prior to his discharge or during the hearing before the State Unemployment Commis- sion, convinces the undersigned that Jensen was either asleep at his post of duty, or was so remiss in the performance of his duties as a patrolman, that the respondent was justified in believing that he was asleep. Granting, however, that Jensen was asleep at his post of duty on the morning of September 8, the respondent admitted that this offense did not necessarily result in discharge in all cases. There were received in evidence respondent's records on some 36 cases of patrolmen who had been found asleep at'their 2' Jensen in the hearing before the State Unemployment Commission made no mention of having seen the car flash its lights from the parking lot on the morning of September 8, though Captain Berry, a later witness for the company in that hearing, gave testimony concerning the incident substantially the same as his testimony in the present hearing. It was only on cross -examination in the present proceeding that Jensen gave testimony relating to the incident. CHRYSLER CORPORATION 529 respective posts of duty , or under circumstances which aroused the respondent's suspicions that they were asleep. Not all of these were 'discharged or even penalized beyond a reprimand. Some of them were discharged, and others were given a disciplinary lay-off. Since it is reasonable to assume that the respondent would pursue a stricter policy with reference to such an offense fol- lowing conversion to war industry and the designation of patrolmen to auxiliary military police duty, the undersigned has considered particularly those records of offenses occurring subsequent to January 1, 1942. There were 23 incidents of this nature, and of the 23 patrolmen thus guilty of sleeping while on duty, 16 were discharged, 4 were given disciplinary lay-offs, and 3 suffered no penalty beyond a reprimand. It does not appear from the records received in evidence that any of the aforesaid 23 employees had a record of accumulated rule violations comparable to that of Jensen's. As has been indicated previously, the majority of the rule infractions of which Jensen was guilty, as revealed by the various reports made by supervisory officials and the testimony of the witnesses, were of a minor character. A number of these reports ante-dated union activities among plant protection em- ployees, and a majority of them ante-dated June 1942, when Jensen first became active in the Union. These reports, therefore, cannot reasonably be said to have been predicated even partially upon respondent's hostility toward Jensen's union affiliation. Furthermore, an accumulation of minor infractions by a patrolman may indicate unfitness for plant protection work, since it is part of the duty of plant protection employees to report rule violations by production and maintenance employees, and in such matters as appearance and attire and attention to duties, they are normally and reasonably held to stricter account- ability than ordinary employees. Chapman, when questioned concerning Jen- sen's discharge, testified, "I was only chief about one and a half years over him, and as far as these reprimands are concerned, I tried to pass them up since he was such an old employee, had been there a long while, and I kept thinking maybe he would do better, and he didn't do any better. That is why I discharged him." Some doubt as to Chapman's actual motivation in the discharge is aroused by his denial of knowledge of Jensen's union affiliation prior to September 8, a denial which the undersigned has not credited, and his action in June is calling Jen- sen to his office and warning him about talking about things "not pertaining to company business," which the undersigned has found was a veiled reference to, Jensen's union activities. The undersigned is convinced, however, that any inferences which might reasonably be drawn from the entire testimony that Jensen was discharged for his union activity, must fall before the superior weight of substantial evidence that his discharge was proper and for cause. The undersigned finds that the respondent did not discharge Jensen for his union activities, but because of accumulated rule violations and for sleeping at his post of duty. Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in 'Section III above, occurring in connection with the operations of the respondent 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 ob- structing commerce and the free flow of commerce. 567900-44-vol. 54-35 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, the undersigned will recommend that the respondent cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to effec- tuate the policies of the Act. Upon the basis of the foregoing findings of fact 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, Local 114, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its plant protection em- ployees at its Jefferson-Kercheval plants, Detroit, Michigan, in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. The foregoing unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not discriminated in regard to the hire and tenure of employment of Jack W. Jensen. 5. The respondent has not interfered with, 'restrained, and coerced the plant protection employees of its Tank Arsenal and Highland Park plants, in the exercise of the rights guaranteed in Section 7 of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned hereby recommends that the respondent, Chrysler Corporation, Highland Park, Michigan, its officers, agents, successors and assigns shall: 1. Cease and desist from interfering with, restraining, or coercing the plant protection employees of its Jefferson-Kercheval plants in the exercise of their rights to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in con- certed activities for the purposes of collective 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 undersigned finds will effectuate the policies of the Act : (a) Post immediately in conspicuous places in its Jefferson-Kercheval plants and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its plant protection employees stating that the respondent will not engage in the, conduct from which it is recommended that it cease and desist in paragraph 1 of these recommendations; (b) Notify the Regional Director for the Seventh Region in writing within ten (10) days from the receipt of this Intermediate Report what steps the re- spondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies said Regional Direc- tor in writing that it will comply with the foregoing recommendations,, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. CHRYSLER CORPORATION 531 It is further recommended that the complaint be dismissed' insofar as it alleges that the respondent discriminated in regard to the hire and tenure of employment of Jack W. Jensen, and interfered with, restrained, and coerced the plant protection employees of its Tank Arsenal and Highland Park plants in the exercise of the rights guaranteed in Section 7 of the Act. As provided in Section 33 of Article II of thel Rules and Regulations of the National Labor Relations Board, Series 2-as amended, effective October 28, 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, Rochambeau Building, Washington, 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 per- mission to argue orally before the Board, request therefor must,be made in writing to the Board within ten (10) days from the date of the order trans- ferring the case to the Board. WILLIAM E. SPENCER Trial Examiner Dated September 21, 1943.