Stewart Warner Corp.

In the Matter of STEWART WARNER CORPORATION and UNITED STEEL- WORKERS OF AMERICA, LOCAL 2937, AFFILIATED WITH THE C. I. O. Case No. 9-C-1855.-Decided March 00, 1944 Mr. Benjamin E. Cook, for the Board. Mr. F. H. Towner, of Chicago, Ill., for the respondent. Mr. James Robb, of Indianapolis, Ind., for the Union. Mr. William T. 1TThitsett, of counsel to the Board. DECISION AND ORDER STATEMENT OF Ti-Ix CASE Upon an amended charge dated September 9, 1943, and duly filed by United Steelworkers of America, Local 2937, affiliated with the Congress of Industrial Organizations, herein called the Union, the National Labor Relations Board, herein called the Board, by its Act- ing Regional Director for the Ninth Region (Cincinnati, Ohio), issued its complaint dated September 11, 1943, against Stewart Warner Cor- poration, Indianapolis, Indiana, 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 substance: (1) that from on or about March 1, 1943, the respondent questioned its employees concerning their union affiliation; stated that there had never been and never would be a union in the respondent's plant; maintained surveillance of the activities of the Union and its members; vilified and disparaged the Union and its leaders and organizers; (2) that on March 10 and 11, 1943, the respondent dis- charged or laid off five named employees and thereafter failed and refused to reinstate them for the reason that they joined and assisted the Union and engaged in concerted activities with other employees for the purposes of collective bargaining or other mutual aid and pro- 55 N L R B, No 108 578129-44-vol. 55-39 593 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tection; and (3) that by the above stated acts, the respondent discrim- inated with respect to the hire and tenure of employment of the five named employees and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On or about September 22, 1943, the respondent filed an answer, ad- mitting the jurisdictional allegations of the complaint and denying that it had committed any of the alleged unfair labor practices. The answer averred that the services of the five employees, alleged to have been discriminatorily discharged or laid off, were terminated for the reason that they were incompetent and insubordinate. Pursuant to notice, a hearing was held at Indianapolis, Indiana, from September 30 to October 3, 1943, before William F. Guffey, Jr., the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and the Union were represented and par- ticipated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the beginning of the hearing, the respondent renewed its motion, previously denied by the Acting Regional Director, to dismiss paragraph 5 of the complaint I upon the ground that the allegations contained therein were too vague and indefinite. The Trial Examiner denied the motion. The respondent then orally moved for a bill of particulars with respect to the matters contained in paragraph 5 of the complaint. The Trial Examiner granted the motion insofar as it sought the names of the respondent's officers or agents who were claimed to have engaged in the conduct set forth in paragraph 5 of the complaint, and the approximate dates upon which it was claimed that such conduct occurred. At the be- ginning of the next hearing session, counsel for the Board stated on the record the information thus required. Near the close of the hearing counsel for the Board moved to dismiss the complaint, without preju- dice, insofar as it alleged that Virgil O. Scales was discriminatorily discharged. This motion, which was grounded on the impossibility of adducing evidence in support of the allegation because of Scale's induction into the armed services, was unopposed. Ruling thereon having been reserved, tfie motion was granted by the Trial Examiner in his Intermediate Report. During the course of the hearing, rulings were made by the Trial Examiner on various other motions and on ob- jections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner made during the course of the hear- ing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. I Paragraph 5 of the complaint contains the allegations set forth in (1) of the second paragraph herein. STEWART WARNER CORPORATION 595 On November 10, 1943, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommended that the re- spondent cease and desist therefrom and take certain affirmative ac- tion to effectuate the policies of the Act. He further recommended that the complaint be dismissed insofar as it alleged that the re- spondent violated Section 8 (1) of the Act by engaging in surveillance of the Union and by vilifying and disparaging it. On December 13, 1943, the respondent filed exceptions to the Inter- mediate Report and a supporting brief. Oral argument, in which the respondent and the Union participated, was had before the Board at Washington, D. C., on January 13, 1944. The Board has considered the exceptions and brief submitted by the respondent, and, insofar as the exceptions are inconsistent with the findings of fact, conclusions of law, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a Virginia corporation having its principal office at Chicago, Illinois, and operating a plant at Indianapolis, Indiana, where it is engaged almost entirely in the manufacture of military supplies under contract with the United States Government. The principal raw inaterials used at the respondent's Indianapolis plant consist of steel, brass, wood, aluminum, copper, bronze, and chemicals. During the year ending August 31, 1943, the value of the raw mate- rials used by the respondent at its Indianapolis plant was approxi- Inately $5,791,008, at least 90 percent of which was shipped to the respondent's Indianapolis plant from points outside the State of In- diana. During the same period the total value of the finished products of the Indianapolis plant was approximately $7,509,884, almost all of which was shipped to points outside the State of Indiana. The re- spondent concedes that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Steelworkers of America, Local 2937, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the respondent. •596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Introduction In December 1942, several of the respondent's employees requested the Union to assist them in establishing a labor organization at the respondent's Indianapolis plant. During January, February, and March 1943, several organizational meetings were held among small groups of employees. During the same period many of the employees signed union membership cards and others obtained transfer cards from other locals of the Union so that they would be available as soon as a local could be established at the respondent's plant. On March 4, 1943, James Robb, the Union's district director, informed J. W. Dunn, the respondent's plant manager, that the Union was attempting to organize the employees. According to the testimony of employee Earnest E. Wolff, whom we. like the Trial Examiner, credit, the Union's activity in the plant prior to the early part of March was in "grapevine" form; the Union "was talked from one employee to the other." This activity, Wolff testified, was at its most intense stage between March 5 and 15. On March 5 or 6, a group of employees met and decided to request the Union to grant a charter for a local at the respondent's plant. On March 8, there was distributed at the plant gates a union leaflet announcing that such a charter had been granted. G. M. Bates, the respondent's director of personnel who effected three of the four discharges hereinafter discussed, saw the leaflet being dis- tributed and received one from Organizer Robb.2 On March 9, Al Speck, the Union's temporary president, told Robb that the Union's March 8 leaflet had "stirred up a lot of enthusiasm in the plant," and suggested that a steward system be set up and that the organizational activity be more widely extended throughout the plant. Pursuant to Speck's suggestion, Robb scheduled a meeting for the evening of March 10. On that day Speck advised Robb that cer- tain foremen in the plant had learned of the proposed meeting. Never- theless, the meeting was held as scheduled, but it was attended by only six or seven employees. In less than 24 hours after the meeting em- ployees Cline and Roberts, who had been instrumental in the success of the Union's membership campaign, Weller, vice president of the Union, and Lockett were discharged. B. The discrimination in regard to hire and tenure of employment Prior to March 1943, the respondent operated three 8-hour shifts in its ordnance division.' In an attempt to achieve higher efficiency of 2 This finding is based on the testimony of organizer Robb and Veilin Wilhoit, an em- ployee who was interested in the Union We, like the Tiial Examiner, do not credit Bates' denial that he received one of the leaflets 3 The ordnance division is sometimes refers ed to in the record as the machine shop. STEWART WARNER CORPORATION 597 production in that division and thus avoid the criticism it had received from the United States Navy Department for failure to meet its con- tract schedules , the respondent , on February 20, 1943, decided to com- press the three 8-hour shifts into two 10-hour shifts , thereby enabling the respondent to make better use of its available manpower and allowing itself a few non-production hours daily for the servicing of machines. At 6 p. m. on March 7, the 2-shift arrangement became effective. As a result of the change from 3 to 2 shifts, it became neces- sary to terminate the employment of approximately 100 employees 4 From March 8 through March 20, 46 employees voluntarily quit their' employment. From March 8 through March 30, 67 employees were discharged. Included among those discharged during this period were employees Weller, Cline, Roberts, and Lockett, who were alleged in the complaint to have been discriminated against. In its answer to the Board 's complaint the respondent alleged that the 4 employees were selected for discharge because of their incompetence and insub- ordination. Burrell Weller commenced working for the respondent in October 1940 as a drill press operator at the rate of 60 cents per hour. On January 6 , 1943, he became a set-up man in the drill press department and continued on that job until his discharge on March 11, 1943. By March 9, 1943, Weller was earning $1 .08 per hour. On that date, Albert MacBeth , Weller's foreman, informed him that he had been increased to $1.14 per hour. Weller joined the Union in the latter part of February 1943. He was vice president of the Union 's local in the respondent 's plant. He was on the Union's organizing committee and attended that commit- tee's meetings. He solicited members for the Union . He attended the Union's organizational meeting in Robb's office on March 10, the 4 G. M Bates, the respondent 's director of personnel, and w. W J. Wiles, the respond- ent's assistant plant manager , testified that the change from 3 to 2 shifts and the discharge of approximate'y 67 employees as a result thereof were a necessary part of the respondent's attempts to achieve higher efficiency in production. Shortly after February 20, Bates issued a bulletin concerning the change in the number of shifts which stated in part : "The new program will in no way affect the number of employees now working, as all machines are to be manned 100 % during the two working periods" Bates testified that the reduc- tion of personnel in the ordnance division was required despite his previous announcement to the contiary, because, between the issuance of his bulletin and the time of the reduction, many absentees had returned to work in the ordnance division, and the alamite division, to which he had intended transferring some of the ordnance division employees, had almost completely shut down because materials for that division were no longer available. Like the Trial Examiner, we find that the change from 3 to 2 shifts and the consequent reduc- tion of personnel was a bona fide attempt to achieve increased efficiency in production. 5 The severance papers of these employees state that they were laid off because no work was available. Bates testified that it is the respondent's practice to label all severances as lay-offs unless the reason for the severance is something requiiing extreme penalty Bates testified, however, that the employment relations of these 67 employees were completely severed but they were spared a discharge record against them He testified, that for the respondent's purposes, the employees were discharged, but for public record, they were merely laid off In view of Bates' uncontradictcd testimony, we find, as did the Trial Examiner, that the 67 employees referred to above were discharged and not laid off 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evening before his discharge. A few days prior to Weller's discharge, S. Ted Cline, another employee alleged to have been discriminatorily discharged, stopped Weller in the plant as the shifts were changing and requested Weller to give him a supply of union membership cards. Weller gave Cline about 12 or 15 cards. This transaction took place within 10 feet of Foreman William Gilbert, who was not called to testify. When Weller reported for work at 7 a. in. on March 11, his time card was not in the rack. He asked the timekeeper if there was some mis- take concerning his time card. The timekeeper replied that there was not and told him to report to the personnel department where he awaited the arrival of Bates. When Bates arrived, he called Weller into his office where his pay check and separation papers were pre- pared and waiting for him. Bates told Weller of the reduction in personnel, and said, "I hear you're unhappy with us, Burrell." Weller replied that he was "very well satisfied" and reminded Bates that he had worked for the respondent quite some time. Bates replied, "Yes, I understand that, but you still will have to go." 6 The record is devoid of credible evidence supporting the respond- ent's claim that Weller was discharged either for insubordination or incompetence. Bates admitted, in fact, that Weller was not guilty of any insubordination. The only evidence even tending to show in- competence is Bates' vague and general testimony that Weller had "not too much drill press experience" and that h: was "outrated as far as his job was concerned." This testimony is unconvincing and not credited in view of Weller's experience of almost 21/2 years as either a drill press operator or a set-up man in the respondent's plant, his promotion from operator to set-tip man, his increases in wages from 60 cents to $1.14 per hour, his uncontradicted testimony that his work had never been criticized, and the admission of the respond- ent's attorney in oral argument before the Board that there was no objection to Weller as a workman. Furthermore, at the time of the discharge, he was qualified to act as inspector, drill press or drill lathe operator. We find, therefore, as did the Trial Examiner, that Weller was not selected for discharge because of incompetence and insubordination. S. Ted Cline began working for the respondent on January 19, 1943, as a hand screw machine operator. He continued at this work until his discharge on March 10, 1943. Cline joined the Union about the first of March 1943. Thereafter, he solicited union memberships at the plant and supplied membership cards to other solicitors. He succeeded in persuading more than a 6 The foregoing is based on Weller's credible testimony, which was not denied by Bates in any substantial respect STEWART WARNER CORPORATION 599 ,dozen employees to join the Union. On one occasion seven or eight signed membership cards were taken from his lunch pail by an un- known person and were never returned. As noted in the discussion of Weller's case, shortly before Cline's discharge, Weller supplied him with union membership cards in the plant during the change of shifts while Foreman Gilbert stood nearby. Clint testified that on the night of March 10-11 he was working on the shift which operates from 6 p. in. to 4: 30 a. m., and that at about 2 a. m. on March 11 lie was called to Bates' office. His pay check and severance papers were prepared and waiting for him. According to Cline, Bates said to him, "I understand you are very unhappy." When Cline denied that he was unhappy in his work, Bates informed him that the respondent was compelled to discharge some employees and that Bates had selected Cline as one of the dischargees. Cline told Bates that he could not understand it and reminded Bates that when the respondent hired him it was understood that Cline was beyond draft age and was being hired for the duration of the war. To that Bates replied, "Well, that has no part to play with this now." Cline, according to his testimony, asked Bates if there was anything wrong with his work and Bates replied that there was not, but that the re- spondent had to discharge some employees and that Cline's name was on the list. Cline told Bates that his production rate was much higher than that fixed by the time-study department for his job and asked Bates if such things were not considered in the selection of people to be discharged. Bates answered, "No, not in this case, we can't con- sider them." There was some discussion between Cline and Bates con- cerning the respondent's good faith in its selection of employees for discharge. During this discussion Cline told Bates that he knew that he had done his work well and that he would have to consider his dismissal "a case of discrimination." To this Bates replied: "Haven't you heard I am an attorney? . . . Well, I know how to take care of those things so you call it whatever you want to and I will just call it no work." According to Cline's further testimony, Bates also said that the respondent was running the plant and that it would be run "without any outside help, organized or otherwise." Cline was re- quired to leave the plant immediately upon the conclusion of his conference with Bates. Cline also testified that a few days after his discharge he asked Bates for a letter of reference; that Bates told him that as a rule the respondent did not give letters of reference, and said, "I can't in this case anyway because in your particular case there might be some things of a very confidential nature that I can't put in writing." Bates, ac- cording to Cline, stated that he would speak over the telephone with anyone who called him with reference to Cline and his work. Bates 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then added, "I don't worry a damn bit about any union," and related how "a fellow" came to him and apologized for having joined a union and "just cried like a baby." Bates testified that on the night of March 10-11 there were at least 10 or 12 operators, some of whom were senior to and more capable than Cline, who were waiting for machines to be set up, that Cline was away from his machine several times during that night, and that Cline had spent much of his time talking to other operators. Bates further testified that on that night he had a complaint from the assist- ant plant manager, W. W. J. Wiles, that Cline was causing confusion in the plant, that his production was clown, and that Cline's machine should be running.? According to Bates, he then called Cline to the office and told him that he was reducing the force by releasing those who were either dissatisfied or did not care to continue working. Bates denied telling Cline that the respondent would run its plant without outside assistance. He did not deny stating that he was an attorney and knew how "to take care of those things." Bates testified that he did not recall Cline's request for a reference letter. We, like the Trial Examiner, credit Cline's testimony and find that the circumstances of Cline's discharge were substantially as Cline re- lated and that Bates made the statements attributed to him by Cline. We find further that Cline asked Bates for a reference letter and that Bates on that occasion made the statements which Cline attributed to him. Bates testified, in effect, that the reason Cline was included among the discharged employees was that Cline had repeatedly requested a wage increase, that he had claimed that he could produce much more than the set rate for his machine but that he would not do so until he received a wage increase, and that he had received reports that Cline spent too much time away from his machine which caused considerable confusion among the other operators. F. H. Morgenthaler, one of Bates' personnel assistants, testified that Cline asked him for a wage increase several times and that Cline's foremen, Robert Humphrey and William A. Loveall, stated that Cline deserved no increase be- cause of his frequent absences from his machine. Humphrey testi- fied that he had given Cline the same reason for not recommending an increase. Loveall testified, however, that he had told Morgenthaler that Cline did not have enough seniority to warrant an increase. He further admitted that he knew of no other reason why Cline's wage rate should not be increased. Cline testified that during the 71/,, hours he worked on the night of his discharge he completed what would amount to 10 hours work on the basis of the production rates set by the time-study department; 7 Wiles neither corroborated nor denied Bates' testimony ; he did admit, however, that he had never spoken to Cline STEWART WARNER CORPORATION 601 that during the preceding night he turned out during the 10-hour shift the equivalent of 171/,> hours work on the basis of the rate set by the time-study department; that his production had always been at about that same rate during the time he worked for the respondent; and that his scrap ran less than 1 percent while the scrap of the shift preceding him ran from 10 to 25 percent of total production. Cline's testimony concerning his production and scrap rates is uncontradicted. Cline also testified that he had received no complaints concerning the quality of his work and that he was never warned about being absent from his machine except on one occasion just prior to his discharge when he had been washing his hands for lunch and the set-up man told him that Foreman Humphrey had said for him to get back to work. Cline testified that his work had been complimented by inspectors, set-up men, and Foreman Loveall and Humphrey. He testified that when he was leaving the plant after his discharge, he told Foreman Humphrey about his discharge and asked Humphrey about the quality of his work. According to Cline, Humphrey replied, "Your work was definitely all right, and if you have been fired . . . I don't know a damn thing about it." Cline testified that William A. Lytle, the plant guard who escorted him to the gate after his discharge said, "If you ever want any reference or ever want anything let me know, I'll be glad to have you call on me because I know you got a rim- ming in there," and added, "I have passed there many times and you was always busy working, I know you was a good worker." Lytle denied making the statements which Cline attributed to him. Hum- phrey testified that he could not recall ever complimenting Cline on the quality of his work. Loveall admitted that Cline's production "was about normal." We, like the Trial Examiner, credit Cline's testimony and find that his production rate was higher than the set rate, that his work was commended by his superiors and others who observed his work, and that he had received no serious complaints about his work. The respondent endeavored to show that Cline was guilty of ex- cessive absenteeism. Cline's labor analysis card, kept by the respond- ent in the normal course of business, does not support this claim. It shows that during the 71/2 weeks Cline worked for the respondent, he was absent a total of only 4 days. Cline, without contradiction, testi- fied that a relapse from double pneumonia accounted for 3 of the 4 days of absence. There is no showing that Cline's absences were un- excused or that they were excessive when compared with the absences of other employees. Moreover, absenteeism was not uncommon in the respondent's plant, as is shown by the respondent's assertion that some employees were discharged in March to make jobs available for returning absentees. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cline denied that he was ever insubordinate. The only evidence of insubordination is Bates' testimony that "there were several reports, at least from supervisors over different arguments , I think" between Cline and his supervisors." The evidence fails to support the re- spondent's contention that Cline was insubordinate. We find, as did the Trial Examiner, that the respondent 's claim that Cline was selected for discharge because of incompetence and insub- ordination is not supported by the evidence. Nellie Edna Roberts was employed by the respondent on October 5, 1942, as a drill press operator. At the time of her discharge on March 10, 1943, she was employed as a hand screw machine operator. Roberts became interested in the Union in January or the early part of February 1943, and began soliciting other employees to join the Union. Cline testified that Roberts was active on behalf of the Union and that he had seen her solicit union memberships and had heard her talk about the Union in the plant . Leona David, an employee who worked next to Roberts , testified that she heard Roberts discuss the Union. Roberts further testified that she distributed union member- ship cards to other employees before she went to work on the night of March 10, 1943; that during the change of shifts Bates was stand- ing at the cafeteria counter in the plant at the time when Roberts had in her possession 25 union membership cards, 2 of which she then gave to employees Dorothy Lockett and Gertrude Woodley; and that Bates saw her hand the membership cards to Lockett and Woodley. Lockett corroborated Roberts' testimony concerning this incident. Lockett testified that after Roberts gave her the membership card and she started to sign it, Roberts mentioned the fact that Bates was stand- ing nearby ; that she, notwithstanding that fact , completed signing the card at that time; and that Bates saw her sign it.° Bates testified that he did not remember this incident ; that he did not see Lockett sign a union card ; that he never saw Roberts distribute union cards in the plant. We, like the Trial Examiner, credit the testimony of Roberts and Lockett , and find that Bates saw Roberts hand Lockett the card and saw Lockett sign it. Roberts testified that she saw Bates standing in the plant during the evening of March 10 and that about 10 :30 on that evening she was 8 The nature of most of Bates ' testimony is illustrated by that relating to the source of the claimed reports concerning Cline's arguments: Q Can you remember who made the report? A Of course , its hearsay I won d say one of my personnel assistants , and some- body in the plant might have been the one, maybe the plant superintendent, or the foreman. It might have been Mr Gilbert. 8 Lockett testified that the season she was certain that Bates saw her sign the card was because of the fact that at the time she started to sign the card, Bates was getting some pickles from a jar at the cafeteria counter and when Lockett began to sign the card, Bites, for a few minutes , stopped his activity and held a fork full of pickles above the jar while he watched Lockett sign the card. STEWART WARNER CORPORATION 603 called to Bates' office where the following conversation took place. Bates told Roberts that he had received complaints that she was pass- ing out "some literature" and asked her if she was buying or selling lottery tickets. Roberts replied that she was not; whereupon Bates inquired, "Well, do you know what the unrest is among the employees and especially the women?" Roberts told Bates that she did not know there was any unrest and asked Bates if there was anything wrong with her work. Bates replied that there was nothing wrong with her work and then turned to Esther Haggard, one of Bates' per- sonnel assistants, who was present, and asked her if there were any com- plaints about Roberts' work. Haggard, according to Roberts, replied that there were not. Bates then told Roberts that "It was very nice to have this talk with you. Go on back to your machine." Roberts further testified that at about 2: 30 on the morning of March 11 she was again called to Bates' office where Bates informed her that she was one of the employees to be discharged and said, "Get this straight, we have never had a union here, by God, we never will have. If you want to join a union you better go over to Curtiss Wright's, they have got a good union there." Roberts' check for the money due her and her separation papers were prepared and ready for her when she entered Bates' office. At the conclusion of Roberts' conference with Bates at about 2: 30 a. m., she was required to leave the plant immedi- ately and, pursuant to Bates' prior arrangements, was-taken home by one of the plant guards. Roberts testified, without contradiction, that on the way out of the plant she told Humphrey, her foreman, that she had just been discharged and that Humphrey tersely expressed his surprise by saying, "Well, I'll be God damned." Bates testified that during the evening of March 10, he received reports from the police matron that Roberts had, spent a considerable number of hours in the rest room and that she was not working; that at the same time he received reports from the assistant plant engineer that there were too many people away from their machines and others were just standing around; that he received reports that Rob- erts was spending her time selling tickets for a lottery; and that for those reasons he called Roberts to his office. According to Bates' version of the conversation which took place in his office, Roberts denied selling lottery tickets and stated that she was unable to work a 10-hour shift because she was heavy on her feet and that as far as she was concerned the respondent would have to go back to the three 8-hour shifts. Bates then told Roberts of the complaints made by the police matron and that Assistant Plant Manager Wile had noticed that she had been away from her machine too long. When Roberts replied that she was willing to try the 10-hour shift and that she wanted to work and do a good job, Bates told her to return 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to her work and that she must stay at her machine. Bates further testified that Roberts returned to her. machine, remained there for about 5 minutes, went to the wash room, again "spent considerable time" away from her machine, and that he then called her into the office and discharged her. Bates testified that when Roberts was in his office on this occasion Roberts said, "I have nothing to do with the union," and that he replied that the respondent was concerned about production and not about unions and that whether or not Roberts belonged to a union was immaterial so long as she would stay at her machine and do her work. Bates denied that he had ever told Roberts that there never had been and never would be a union in the plant. He testified that he could not recall asking Roberts about unrest in the plant. Haggard testified that she was in Bates' office at the time when he talked to Roberts early in the evening of March 10; that she did not recall the conversation very clearly but that she did remember Bates discussing with Roberts the reports that she had spent a great deal of time in the rest room away from her machine and that she had been selling lottery tickets. Haggard further testified that she had no first hand knowledge of Roberts' activities and that she knew only what the police matron had reported about Roberts loitering in the rest room. Haggard testified, however, that after Bates had talked to Roberts the first time on the evening of March 10, she made her own check of Roberts' absences from her machine and reported that matter to Bates. She also testified that Roberts had been reported for loitering in the rest room prior to March 10. Foreman Humphrey testified that he was Roberts' supervisor in March 1943, that at that time he noticed Roberts away from her machine on a number of occasions, and that about March 10 he warned Roberts to pay more constant attention to her machine. He was unable, however, to state just how often she was absent from her machine. He testified that when Roberts was absent from her machine she was told that he had no objection to her going to the rest room but only to her "staying up there so long," but that he did not know how long she had stayed there. Roberts testified that on the night she was discharged she did not spend more than 15 minutes in the rest room and that Bates did not mention loitering in the rest room during either of her conferences with him during that night 10 She testified that the only thing she said to Bates concerning the 10-hour shift was that none of the em- ployees liked it because the hours were too long and that she particu- larly found it difficult to remain on her feet that long. Roberts denied that she ever indicated that she would quit her job because of the 10 I3aggard admitted that female employees are permitted a 15-minute rest period. STEWART WARNER CORPORATION 605 10-hour shift. She testified that she never left her machine except when necessary and that she had never received any complaints about leaving her machine or about the quality of her work. According to her uncontradicted testimony, Roberts' work had been compli- mented by Joe Mahoney, an inspector, and Bob Cisk, a supervisor of the drill press operators; on the night of her discharge, when her machine was working poorly and the set-up man was unable to get it properly adjusted, she asked three or four times to be removed from the machine and Foreman Humphrey refused to grant her request, saying that Roberts "was as good an operator" as he had. Further- more, in addition to the work which she was performing at the time of her discharge, she was qualified and had experience on the assem- bly line and operating a turret lathe and a drill press. We, as did the Trial Examiner, reject the testimony of Bates, Hag- gard, and Humphrey concerning Roberts' working habits and the cir- cumstances surrounding her discharge and credit Roberts' testimony regarding these matters. Like the Trial Examiner, we also find that Bates inquired about unrest in the plant, and that he made the anti- union statement attributed to him by Roberts. We find further that Roberts received compliments about her work from her supervisors and that she received no criticism of her work or because she was absent from her machine. The respondent endeavored to show that Roberts was guilty of ex- cessive absenteeism. Her labor analysis card, kept by the respondent in the normal conduct of its business, shows that from the week end- ing January 5, 1943, to the date of her discharge, Roberts was absent about 19 days. She testified that during this period she was incapac- itated for 2 weeks with a sprained ankle and that she lost 2 additional days when her daughter underwent an operation. There is no evidence of her absenteeism prior to January 5. What evidence there is of absences is of little if any probative value since, except for Roberts' explanation, there is no showing that the absences were unexcused or that they were excessive in comparison to the work records of other employees or as tested by the expectancy of absen- teeism in the respondent's plant at the time in question. There is no evidence in the record of any insubordination on Rob- erts' part except the testimony of Bates that Roberts was insubordi- nate on the night she was discharged "inasmuch as she disobeyed the company rule about working." Since the evidence of Robert's neg- lect of her work has been discredited, there is no credible evidence of insubordination even by Bates' standards. We find, therefore, that the respondent's claim that Roberts was selected for discharge because of incompetence and insubordination is not supported by the evidence. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roberts testified that after her discharge the United States Em- ployment Service sent her back to the respondent for employment in the ordnance division and that Haggard refused to accept her for employment. Haggard could not recall this incident but testified that it might have occurred. We credit Roberts' testimony and find that the respondent refused to reemploy Roberts after her discharge. Dorothy Lockett began working for the respondent on November 27, 1942, as an assembler on the alamite line. She became an inspec- tor in the ordnance division about December 27, 1942, and continued in that work until her discharge on March 11, 1943. Lockett joined the Union on March 9, 1943. Roberts, Lockett's mother, gave her a union membership card and Lockett signed it while they were in the cafeteria about 6 p. in. on March 10 and while Bates was standing nearby. The circumstances surrounding Lockett's sign- ing of the union membership card are related above in connection with the discussion of Roberts' discharge. We have found that Bates saw Lockett sign the card. When Lockett returned to her work after lunch at about noon on March 11, she found a note on her desk asking her to see Haggard. Lockett's testimony regarding her conference with Haggard is sub- stantially as follows: When Lockett went to Haggard's office, Hag- gard informed her of the necessity of reducing personnel because of the change in the number of shifts and stated that Lockett had been selected as one of the dischargees. Lockett objected to signing certain papers in connection with the discharge pursuant to Haggard's re- quest and asked Haggard under whose orders she was making the dis- charge. Haggard replied, "I can't talk to you about that, I have my orders." Lockett inquired why she was being discharged while the respondent was still hiring new employees and Haggard replied, "I don't know. It's just the orders I have." Haggard asked Lockett if she was satisfied with her work. Lockett replied that she was. Haggard then stated, "You would be more satisfied with the union" in the plant, whereupon Lockett replied that, as far as wages and hours were concerned, she would. Haggard then said, "Well, there has never been any union here and there never will be." Lockett was required to leave the plant immediately upon the conclusion of her conference with Haggard notwithstanding the fact that the shift was only about half completed. Haggard denied that she had anything to do with discharging Lockett. She testified that she may have talked to Lockett but that Bates handled the discharge. We, like the Trial Examiner, credit Lockett's testimony and find that Haggard discharged Lockett and that, at the time of the discharge, Haggard made the statements related by Lockett. STEWART WARNER CORPORATION 607 Three or four days after Lockett was discharged she returned to the plant to obtain the birth certificate she had submitted when she was hired. On this occasion Lockett told Bates that she had been discharged and desired the return of her birth certificate. According to Lockett, some discussion then ensued between her and Bates as to whether Lockett had been discharged or merely laid off. Lockett insisted it was a discharge and told Bates he ought to know why she considered it a discharge. Lockett testified that Bates replied, "Well, it certainly wasn't over a union." Bates did not contradict Lockett's testimony in This regard. He testified that he did not recall any con- versation with Lockett concerning her birth certificate and that he did not recall telling her that her discharge was not because of her union activities. We, like the Trial Examiner, credit Lockett's testimony, and find that Bates made the statements attributed to him. Bates testified that during the morning of March 11, Lockett came to his office, expressed her dissatisfaction with working conditions in the plant, and said that she did not care to work under such condi- tions. Lockett denied going to Bates' office on March 11 and that she made the statement as claimed by Bates. Like the Trial Examiner, we credit her denial. The only evidence tending to show that Lockett was incompetent is Bates' vague and general assertion that Lockett had had very little previous experience in the type of work that she was doing for the respondent and that she "seemed to be" inefficient. He related no facts in support of his conclusions. According to Lockett's credible testimony, she never received any complaints about the quality of her work, but she had, on the contrary, been complimented by an inspector from the respondent's Chicago plant, and at the time of her discharge was offered a letter of recommendation by Ed Oden, her immediate superior, if she desired to obtain a job as an inspector in some other plant. WTe, like the Trial Examiner, credit Lockett's testimony in this regard. The respondent endeavored to show that Lockett was guilty of excessive absenteeism. Her labor analysis card, kept by the respond- ent in the normal course of its business, shows that from the week ending January 5, 1943, to the date of her discharge, Lockett was ab- sent about 10 days and worked less than 8 hours on 9 other days. There is no evidence of her absenteeism prior to January 5. Lockett testified, without contradiction, that she received no complaints about absenteeism. As in the case of Roberts, this evidence is of little if any probative value since there is no showing that the absences were unexcused or that they were excessive when tested by the absentee records of other employees or by the expectancy of absenteeism at the respondent's plant at the time in question. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no evidence that Lockett was ever insubordinate. She testified that she never had been, and Bates testified that he could not recall whether she had been insubordinate. We find, as did the Trial Examiner, that the respondent's claim that Lockett was selected for discharge because of incompetence and insubordination is not supported by the evidence. Conclusions Upon the facts set forth above and upon the entire record it is clear that Weller, Cline, Roberts, and Lockett were selected for dis- charge because of their membership in and activity on behalf of the Union." The respondent was fully aware of the union activity of its employees. Organizer Robb had informed Plant Manager Dunn on March 4, 1943, of the Union's organizational activity, much of which was thereafter carried on in and about the plant. On March 8, Bates received a copy of the Union's leaflet, which was being dis- tributed in front of the plant and which announced the granting of a charter to the Union. This leaflet engendered considerable union enthusiasm among the employees, which was noticeable in their discussions the following clay. Weller, vice president of the Union, kept a supply of membership cards on hand in the plant, a number of which he turned over to Cline in the presence of Foreman Gilbert. Cline, in turn, distributed cards to other solicitors and successfully canvassed the plant for members. Roberts' open advocacy of the Union was well known to her fellow employees. Bates saw her obtain the signature of Lockett to a union membership card just a few hours before the discharges began. It is significant that the discharges of these energetic union adherents followed immediately after the union meeting of March 10 of which the respondent's fore- men had knowledge. Also significant is the summary and precipitate manner in which the dismissals were effected. Cline, Roberts, and Lockett were discharged in the middle of their shifts and sent home without being permitted to finish their work. This treatment, the respondent's attorney admitted in his oral argument before the Board, was contrary to the respondent's policy and normal procedure. Moreover, the respondent shifted its position with respect to the reasons assigned for the discharges. At the time of the discharges, Weller, Cline, and Lockett were told that they were "unhappy" or n Thee a is no mei it to the respondent's contention that any discriminatory motive is rebutted by the fact that only 5 discharges out of a total of 67 were alleged to have been discriminatory. Moreover, the record shows that other employees, both members of this Union and of another union, claimed that their discharges were discriminatory ; some of them did not desire to press their claims for personal reasons, while others had filed charges through their respective unions. STEWART WARNER CORPORATION 609 ``dissatisfied"; while Roberts was questioned about the "unrest" in the plant and told to go to Curtiss Wright's if she wanted to join a union. - However, in its answer to the Board's complaint, the re- spondent alleged that the above-mentioned employees were dis- charged for incompetency and insubordination, allegations which we have found unsupported by the evidence. At the hearing before the Trial Examiner, Bates testified that, in selecting the employees for discharge, the respondent considered efficiency, dependability, co- operation, satisfaction with their duties, and seniority. The evi- dence, however, does not show that these employees were deficient in these respects. That the respondent did not rely on such standards in the case of these four employees is shown by the fact (1) that the respondent's counsel admitted at the oral argument before the Board that the respondent had no objection to Weller as a workman; (2) that Weller's 3 years seniority vas ignored; (3) that Bates told Cline at the time of his discharge that his work was satisfactory and that the fact that his production record was higher than the set rate could not be considered; and (4) that Roberts was informed by Bates shortly before her discharge that there was nothing wrong with her work. When the foregoing factors are considered in the light of the respondent's statements and conduct at the time of the discharges and shortly thereafter, the real motive for their selection becomes apparent. Thus, when Cline accused Bates of discriminating against him, Bates implied that as a lawyer lie was capable of effecting a discharge with- out revealing his discriminatory purpose. Bates then stated that the respondent would run its plant "without any outside help, organized or unorganized." While agreeing to talk to anyone who called him about Cline's work, Bates refused to give him the requested letter of reference because "in your particular case there might be something of a very confidential nature that I can't put in writing." Roberts was first questioned about the "unrest" among the employees and was later discharged with the remark that, "we never had a union here, by God, we never will have. If you want to join a union, you better go to Cur- tiss Wright's, they have a good union there." The respondent gave no explanation for its refusal to rehire Roberts when she was later sent back by the United States Employment Service, which regularly fur- nished the respondent with its employees. In response to Haggard's question, Lockett admitted that she would be more satisfied with the union in the plant; whereupon Haggard replied, "Well, there has never been a union here and there never will be." Shortly thereafter when Lockett returned to get her birth certificate, Bates made the unsolicited assertion that Lockett's discharge "certainly wasn't over a union." 575129-44-vol 55-40 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record, we find that the "dissatisfaction," "unhappi- ness.," "unrest," and "confidential" things over which the respondent was concerned had reference to the Union and the organizational ac- tivities of the employees. We find further that the respondent se- lected for discharge the four employees in question because of their union membership and activities. The respondent contends that any discriminatory motive is re- butted by the fact that the Union's temporary president and some of its other members were retained after the March discharges and by the fact that many employees, including Cline, were hired with knowl- edge that they were members of one union or another. We find no merit in these assertions. Clearly, a complete house cleaning of union members and supporters is not essential to a finding that some em- ployees have been discriminated against. In support of the other as- sertion, the respondent introduced in evidence a list, which it claims to be incomplete, of 26 persons employed by the respondent at the time of the hearing, whose applications for employment state that they were members of some union at the time they were hired . There are about 17 different unions represented by these 26 employees. There was no threat by any of these organizations to organize the entire plant. The situation presented by these few scattered and unrelated union members is in no way analogous to the Union's energetic or- ganizational campaign which confronted the respondent in March 1943. Upon the entire record, we find that the respondent discriminated in regard to the hire and tenure of employment of Burrell Weller, S. Ted Cline, Nellie Edna Roberts, and Dorothy Lockett, by discharging and refusing to reinstate them because of their membership and activ- ities in the Union, and thereby interfered with, restrained, and co- erced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. Interference, restraint, and coercion The complaint alleged that the respondent questioned its employees concerning their union affiliations. The respondent uses an applica- tion for employment which requires the applicant to list all organiza- tions, "church, lodge, P. T. A., brotherhood, fraternity, club, civic league, or luncheon clubs, military or others" to which the applicant belongs.12 Any objective interpretation of this language would require an applicant to reveal his union affiliations. It is clear from the record that many applicants so interpreted it and did list the labor organiza- tion of which they were members. We find that the language above '^ Bates testified that the answering of this question is entirely voluntary and that appli- cants are not pressed for this infoi oration He testified , however, that the applicant is not informed that listing this information is voluntary STEWART WARNER CORPORATION 611 quoted requires an applicant for employment to reveal his union affili- ations and that it constitutes a questioning of applicants for employ- ment concerning their union affiliations. We find that by the discriminatory discharge of the four above- named employees, by the anti-union remarks of Bates and Haggard as found above, and by the questioning of applicants for employment concerning their union affiliations, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We find that the evidence does not support the allegations of the complaint that the respondent maintained surveillance of and spied upon the Union and its members and that it vilified and disparaged the Union and its leaders and organizers. We shall order that these allegations of the complaint be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent de- scribed in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in and is engaging in unfair labor practices, we shall order it to cease and desist there- from and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent discriminated in regard to the hire and tenure of employment of S. Ted Cline, Dorothy Lockett, Nellie Edna Roberts, and Burrell E. Weller. We shall order that the respondent offer to Weller, Roberts, and Lockett immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the discrimination against him to the date of the respondent's offer of reinstatement, less his net earnings 13 during 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 woikmg elsewhere than for the respondent, which would not have been incurred but for his unlawful d scharge and the consequent necessity of his seeking emploSment clsewhene See Afattei 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 perfoi coed' upon Fedei al, State, county, municipal, on other work-relief projects shall be considered as earnings See Republic Steel Corpo?ation v N L R 8.,'311 IT S 7. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said period. Since Cline testified that he did not desire reinstatement, we shall merely order that the respondent make Cline whole for any loss of pay he has suffered by reason of the discrimination, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of the discrimination against him to September 30, 1943, the date upon which the hearing herein com- menced, less his net earnings 14 during said period. We have found that the applications for employment used by the re- spondent require applicants for employment to disclose their union affiliations, if any. We shall order that this question be deleted from the application or amended to except labor organizations. We shall further order that the allegation of the complaint that Virgil O. Scales was discriminatorily discharged, be dismissed without prejudice, inasmuch as his induction into the armed forces prevented the adducing of evidence in support of that allegation. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. United Steelworkers of America, Local 2937, 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 S. Ted Cline, Dorothy Lockett, Nellie Edna Roberts, and Burrell E. Weller, and thereby discouraging membership in United Steelworkers of America, Local 2937, affiliated with the Congress of Industrial Organizations, the respondent has engaged in and is en- gaging 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. 5. The respondent has not engaged in surveillance and spying upon the Union and its members or in vilifying and disparaging the Union, its leaders and organizers, in violation of Section 8 (1) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, 14 See footnote 13, supra. STEWART WARNER CORPORATION 613 the National Labor Relations Board hereby orders that the respondent, Stewart Warner Corporation, Indianapolis, Indiana, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in United Steelworkers of America, Local 2937, affiliated with the Congress of Industrial Organizations, or any other labor organization of its employees, by discharging or re- fusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any terms or conditions of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self -organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted ac- tivities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Dorothy Lockett, Nellie Edna Roberts, and Burrell E. Weller immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority and other rights and privileges; (b) Make whole Dorothy Lockett, Nellie Edna Roberts, and Burrell E. Weller 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 equal to the amount which he normally would have earned as wages from the date of the discrimination against him to the date of the respondent's offer of reinstatement, less his net earnings during such period; (c) Make whole S. Ted Cline for any loss of pay he has suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of the discrimination against him to September 30, 1943, less his net earnings during such period; (d) Delete from its applications for employment the question re- quiring the disclosure of union affiliation or amend the question so as to except the listing of labor organization affiliations; (e) Post immediately in conspicious places in its plant in Indian- apolis, Indiana, and maintain for a period of at least sixty (60) con- secutive days from the date of posting, notices to its employees stat- ing: (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), (b), (c), and (d) of this Order; and 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) that' the respondent's employees are free to become and remain members of United Steelworkers of America, Local 2937, affiliated with the Congress of Industrial Organizations, or any other labor organization, and that the respondent will not discriminate against any employee because of his membership or activity in that or any other labor organization ; (f) Notify the Regional Director for the Ninth Region in writing, within ten (10) days from the date of this Order, what steps the re- spondent has taken to comply herewith. AND IT IS FTTRTHER ORDERED that the complaint, insofar as it alleges that the respondent violated Section 8 (1) of the Act by engaging in surveillance of the Union and its members, be, and it hereby is, dismissed. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent violated Section 8 (3) of the Act with respect to Virgil O. Scales, be, and it hereby is, dismissed without prejudice.