Howard Foundry Co.

In the Matter of HOWARD FOUNDRY COMPANY ( MAGNESIUM DIVISION and GEORGIA. ORR (AN INDIVIDUAL) Case No. 13-C-2396.-Decided November 6, 1944 DECISION AND ORDER On June 29, 1944, 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 take certain affirmative action, as set forth in the copy of the Intermediate Re- port attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a brief. No request for oral argument before the Board was made, and none was held. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief filed by the respondent, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations made by the Trial Examiner, except as stated below.' ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations ' Reference is made in the Intermediate Report to an individual by the name of Nick Mizolek. It appears from the record that the correct name of this individual is Nick Niziolek The Trial Examiner credits Orr 's testimony as to the events following the mold incident which culminated in Orr 's discharge . While we agree that Orr's testimony as to these events is credible and that of Cieslak and Miner , untrustworthy , we note certain minor discrepancies between the statements contained in the Intermediate Report and the testi- mony in the record with respect thereto . According to the Intermidate Report, Cieslak testified that he signed Orr's termination slip ; however , the record shows that Cieslak, at first, could not remember whether he signed such a slip, but that subsequently he denied doing so. Again, contrary to the Intermediate Report, the record does not indicate that Miner gave contradictory testimony concerning his whereabouts at the time of the mold incident. That Miner's testimony was largely unreliable, however, as the Trial Examiner found, is evident from Miner's inconsistent statements with respect to the identity of the person or persons responsible for Orr 's discharge 59 N. L. R. B., No. 19. 60 HOWARD FOUNDRY COMPANY 61 Board hereby orders that the respondent, Howard Foundry Com- pany (Magnesium Division), Chicago, Illinois, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Molders and Foun- dry Workers Union of North America, A. F. of L., or in any other labor organization of its employees, by discharging any employee, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Molders and Foundry Workers Union of North America, A. F. of L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- poses 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) Make whole George Orr for any loss of pay he may have suf- ferred 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 during the period from the date of the respondent's discrimination against him to the date when lie first obtained regular employment; less his net earnings during said period; (b) Post immediately in conspicuous places throughout the Mag- nesium plant which it operates in Chicago, Illinois, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of this Order; and (3) that the respondent's employees are free to remain or become members of International Molders and Foundry Workers Union of North America,. A. F. of L., or any other labor organization, and that the respondent will not discrim- inate against any union committeeman, steward, or other represent- ative of its employees by reason of the proper performance of his functions as such representative; (c) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CHAIRMAN HARRY A. MILLIS, concurring : - This case presents a pointed illustration of the need for special care and forbearance in administration of collective bargaining rela- tionships, especially in initial years when inexperience, awkwardness, and presumption are most evident. The idea, all too prevalent among some employers, that the obligation imposed by the Act to bargain collectively with majority representatives of their employees ceases upon the execution of an' agreement, and by the same token over- zealousness on the part of union business agents and new committee- men, are both responsible for much industrial unrest and instability. Square dealing and considerateness assume in these days ever increas- ing significance. Let resentment and resistance, especially on the part, of first line supervision, commonly the first level of grievance adjustment, obstruct the peaceful machinery set up by agreement and the whole purpose of collective bargaining is likely to fail. The attitude of Chini, as disclosed by this record, made impossible the achievement of mutual respect and cooperation between employee and management and resulted in a necessity for recourse to this Board. It is not and must not be a usual function of this,Board to enforce or administer collective bargaining agreements. That would be very bad policy. Yet, maladministration of agreements now and then, but always unfortunately, forces the Board to intervene in order to cor- rect situations which impinge upon the law. Such is the case before us. With this assertion of policy and these observations, I am in complete agreement with the Board finding that the discharge of Orr was discriminatory. INTERMEDIATE REPORT For the Board : Gustaf B Erickson, Esquire, Chicago, Illinois For the Respondent : Laurence C. Mills, Esquire, of Dempsey, Mills, Casey and Bostleman, 29 South La Salle Street, Chicago, Ill. For George Orr : George Orr, 6827 South Rockwell Street, Chicago, Illinois. STATEMENT OF THE CASE On a charge duly filed on May 9, 1944 by George Orr, an individual; herein referred to as Orr, the National Labor Relations Board, herein called the Board, ' On April 9 , 1943 , International Molders and Foundry Workers ' Union of North America, A. F of L filed a charge based on all the facts here involved ; on October 12, 1943, this was amended to include a charge of discrimination against one George McCleary as well as Orr ; on April 29 , 1944 , a second' amended charge was filed, dropping the charge of dis- crimination with reference to McCleary ; on April 29, 1944, a complaint was issued by the Regional Director for the Thirteenth Region and the case was duly noticed for hearing on May 11 , 1944. On May 9, 1944, the Union withdrew the charge and, being notified of such withdrawal , Orr, on the same day, filed the instant charge, as an individual Orr dropped his union membership within a month after his discharge from the employment of Respondent on March 31 , 1943, and has never renewed it Since that time he has not worked as a molder. HOWARD FOUNDRY COMPANY 63 on May 11, 1944, by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint against Howard Foundry Company (Magnesium Division), an Illinois corporation with its principal office and place of business in Chicago, Illinois, herein called Respondent, alleging that Respondent has engaged in and is engaging in unfair labor practices 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 together with copies of the charge and a notice of hearing thereon, were duly served on Respondent and Orr on May 11, 1944. Concerning unfair labor practices, the complaint alleges that on or about March 31, 1943, Respondent discharged George Orr from his employment with Respondent and has thereafter refused to reinstate him because he engaged in concerted activities for the purposes of collective bargaining, by which action it discouraged and is discouraging concerted activity for the purposes of collective bargaining, and that thereby Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act ; that further, Respondent, by its officers, agents and supervisory employees, while engaged in the operation of the magnesium plant, from on or about January 19, 1943 to date, made statements disparaging and expressing dis- approval of International Molders and Foundry Workers Union of North .. merica, A. F. of L., herein called the Union, of which Orr was a member in good standing, and discharged and threatened to discharge employees because of their concerted activities for the purpose of collective bargaining or other mutual aid or protection, thereby engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. On May 19, 1944, Respondent filed its answer with the Regional Director for the Thirteenth Region, admitting the allegations of the complaint pertaining to its corporate existence and the nature and extent of its business, and the existence of the Union as a labor organization, but denying all allegations pertaining to unfair labor practices. On May 22 and 23, 1944, a hearing on the complaint was held at Chicago, Illinois and at Cicero, Illinois, before the undersigned, R. N. Denham, a Trial Examiner duly designated by the Chief Trial Examiner. The Board and Respondent appeared and were represented by counsel. Orr appeared as his own counsel. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence pertinent to the issues. At the opening of the hearing, Respondent moved to have the complaint made more definite and certain as to substantially all allegations pertaining to the alleged unfair labor practices. The motion was granted as to the allegations concerning unfair labor practices within the meaning of Section 8 (1) of the Act and was denied in all other respects. Counsel for the Board stated on the record that the Board relied on certain described acts and statements of named supervisory employees for its proof of the unfair labor practices referred to. This statement was in lieu of an amendment to the complaint and was accepted by all parties as such. No request for adjournment was made following the above recital by Board's counsel although counsel for Respondent reserved the right to request a further hearing in the event he should find himself prejudiced by an inadequate opportunity to meet the allegations. No such request has been made. At the conclusion of testimony for the Board, Respondent moved the dismissal of the complaint for lack of proof. The motion was denied. At the conclusion of all testimony, the motion of counsel for the Board to conform the pleadings to the proof was granted without objection and made applicable to all pleadings solely for the purpose 618683-45-vol. 59-6 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of correcting recitals of dates, spelling of naives and conforming, minor matters not affecting the issues raised by the pleadings. An informal discussion of nthe. issues) andr.,applicable evidence was. held on the record at conclusion of the hearing. Briefs to the Trial Examiner were waived by,all parties. On the foregoing, and on all the record, having heard and observed the witnesses and considered all the evidence offered and received, the undersigned makes the following: , FINDINGS OF FACr I i)-11: BUSINESS OF BESPONDEN1 Respondent is an Illinois corporation wi ith its principal office at 4918 Bloom- ingdale Road,\Chicago, Illinois It operates three manufacturing plants, viz a magnesium plant and an aluminum plant, both in Chicago, Illinois and a bronze plant at Aurora, Illinois, where it is engaged in the manufacture, sale and distribution of brass, bronze, aluminum and magnesium castings for air- plane parts, tanks, machine guns, heavy artillery and ships, all of which are devoted solely to the war effort. Only the magnesium plant is herein involved. Respondent concedes that it is engaged in commerce within the meaning of the Act and that the Board has jurisdiction in this matter 2 II THE ORGANIZATION INVOLVED ' International Molders and Foundry Workers Union of North` America, A. F. of L. is a labor organization admitting employees of Respondent to membership. III THE UNFAIR LABOR PRACTICES A Intel-feienae, iestialiat and coelcloii Although Respondent has operated for a number of years as a foundry- cour pany in the Chicago area, it has never before handled magnesium Its mag- nesium plant, with which this controversy is concerned, is a new project, having been built by the Defense Plant Corporation in 1942. At the,tinie the acts com- plained of took place, the plant was still in an unfinished condition although production operations had already started. For several years, Respondent has operated under a closed shop contract with International Molders and Foundry Workers Union of North America, affiliated with the A F. of L, which contains the general provisions of that Union's standard contract and has been applied to the magnesium plant operations This contract prohibits the hiring of journeyman molders who are not in good standing with the Union, but permits non-union laborers and helpers to be hired, provided they join the Union within 30 days ; however, when the Union is unable to furnish journeymen, the employer is also permitted to hire non- union men, provided they, too, join the Union within 30 days, in the same manner as non-union laborers and helpers. During all the times here in- volved, the latter condition prevailed, and in order to maintain the closed-shop conditions and to insure that new employees made timely applications for Union membership, arrangements were made between the Union and Respondent to 2 Respondent stipulated that it moves substantial quantities of magnesium , aluminum and brass in interstate commerce to its plants in Illinois as raw material , valued at more than $1,000, 000 per annum ; and similarly moves substantial quantities of finished castings, in interstate commerce from its plants in Illinois , valued at more than $1,700,000 per annum. HOWARD FOUNDRY COMPANY 65 have each new employee introduced to the committeeman of the Union in the department where such new employee was to work . The failure of the Director of Personnel and the Superintendent to observe this in the rapidly expanding organization , was one of the circumstances that contributed to the - situation here under consideration. Within the plant, each department elected its own committeeman to serve on the shop committee , while one employee was elected to act as shop chair- man. His functions may be generally likened to those of a chief steward, through whom all grievances and other matters pertaining to relations between the employees and management were cleared in the first instance, usually from the committee men, whose ditties are comparable to those of department stewards. Obviously many grievances were adjusted on the spot by the coin- mitteemen, and many more by the shop chairman , without going beyond the foremen immediately involved . The shop chairman had no general authority to represent the union beyond the presentation of more or less routine griev- ances and the settlement of such grievances on the spot , insofar as he could do so without appealing to the business representative . Orr, however, who was shop chairman at the times here involved , appears to have taken a more active part than other chairmen in the matter of general conditions, although, when- ever situations arose which either were beyond his jurisdiction or which he thought were beyond his capacity to handle, he, too , called on the business agent of the union for authoritative advice and assistance.' At the times that are pertinent herein , Joe Chini was Superintendent of the Foundry ; the Director of Personnel Relations was one MacClay ; Daniel H. Miner was foreman in charge of squeezer molders, and Stanley Cieslak was molder foreman. MacClay and Chini., respectively left the employ of Re- spondent in the early summer and fall of 1943 . Their whereabouts are not now known and because of this, Respondent was unable to produce them to testify in this proceeding. By the fall of 1942, although the buildings were not completed and only a part of the equipment had been installed , the foundry had started production with a small portion of the employees it would , and did, ultimately require. By the beginning of 1943, there were several hundred employees working, and at present three or four times that number are on the pay roll.' Those employees who served as shop committeemen and shop chairmen prior to February and March 1943, appear to have enjoyed short tenures. Most of them quit or were discharged for reasons that are not here in issue, and one was promoted to be a foreman . Except in the case here involved, there is no charge that any of the discharges of the committeemen or shop chairmen were discriminatory in nature, nor were the causes of such discharges shown. However, the testimony of Daniel Miner, squeezer molder foreman , who had severed his connection with Respondent on the day before he testified, plays a significant part in indicating the attitude of the superintending and manage- 3 On one occasion, Orr, as shop chairman, with the approval if Chini, made a survey of the night shift to determine the cause of a persistent discontent on that shift, during which he interviewed each employee, reported his findings and at the same time recommended the release of two men whom he discovered were not performing their duties. On another occasion, with the knowledge of management, Orr caused a petition to the State Board of Health to be circulated, requesting an inspection of the gas conditions in the foundry. Such an inspection was made but the results were not developed at the hearing. d The exact amount of employment at the plant at the present time was not shown by the testimony although it is obviously in excess of 1,000 persons. 66 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meat personnel toward those who, as committee members, actively represented the Union and attempted to protect the rights of the employees in the shop. Miner's testimony concerned his relations with Joseph J Schroeder, a molder, and was confirmed by Schroeder. Schroeder began work at the respondent's foundry on February 11, 1943, and was immediately placed in Miner's depart- ment as a squeezer molder. Shortly after Schroeder had been employed, John Murphy, the committeeman from his department, was discharged. It was at about that time that Orr became shop chairman Orr had previously known and worked with Schroeder in another plant and, to fill Murphy's place, sug- gested to Schroeder that lie take over the representation of the employees in the squeezer molding department, as their committeeman Schroeder apparently was a capable worker who attracted Miner's attention soon after being em- ployed At the time, one of the shifts in the squeezer molders department was without a foreman and Miner thought he saw foreman kiualifie tions in Schroeder. He cultivated him with the result that they soon became close friends, both in the shop and outside, and spent much of their free time playing golf. Miner had told Schroeder about the possibility of his being made a fore- man, and both in the shop and outside, had many conversations with him on the subject of Schroeder's union activities in previous employments where he had served as steward and on various committees Miner warned him to stay away from such activities in Respondent's shop When Schroeder was invited by Orr to take the job of committeeman, lie told Miner of it Miner advised against accepting the assignment, and, according to his own testimony, told Schroeder that if he seriously wanted the foreman's position, he "would have two strikes on him if he took the committee job, with the third strike coming up", obviously implying and intending to imply that Schroeder could hardly expect to receive consideration from management for, appointment as a foreman if he became a committeeman. Miner testified that in these conversations, he was not attempting to intimidate Schroeder, but was merely giving him some friendly advice on a wholly personal basis While the employer may, in certain circumstances, be excused from responsibility for expressions of purely personal opinion by a foreman, this was not such an opinion but was intended to advise Schroeder as to management's attitude It is found that by these conversations, Respondent did, through Miner, interfere with, restrain and coerce Schroeder in the exercise of the rights guaranteed in Section 7 of the Act There is no substantial evidence that' the management of Respondent ob- jected to the presence of the Union, as such, within the plant, or to any of the employees being members of the Union. The existence of the closed'sliop contract which had been renewed several times, torecloses this. Its objec- tion appears to have gone deeper„and took the form of resentment toward ag- gressive assertion by the union representatives in the shop, of the rights of the employees under the contract. Chini, from the description of him, is a hot tempered and impetuous superintendent who was jealous of his authority, con- stantly pushing for more find more production, impatient with the union con- tract and inclined to regard Orr as an interloper who was encroaching on his prerogatives. He treated the presentation of grievances or complaints over working conditions and other matters as an invasion of his right to "run the shop". Much of the conduct on which this complaint is based came from Chini. It was generally conceded that profanity is a', recognized part of the foundry vernacular and is broadly used by both the workers and their supervisors. Numerous of the witnesses were called upon to quote Chini and others, in de- scribing the acts complained of. In referring,to their testimony, the substance HOWARD FOUNDRY COMPANY 67 rather than the language, is used, for the profanity, while lurid at times, adds little, if anything, to the real meaning of the statements made. In consider- ing the testimony, the fact that profanity may have been used has not, under the circumstances, been given weight. In the exercise of the grievance procedure, when he had to go beyond the foreman directly interested, Orr, as shop chairman, usually presented griev- ances in company with one or more other members of the committee. On such occasions, the management was usually represented by Chini and MacClay, and Orr generally Acted as spokesman for the employee group. Orr's presenta- tions ordinarily made up in forcefulness and energy, what they lacked in diplom- acy, and Chini's reaction usually was one of resentment which frequently wound up with the statement that he, and he alone, was running the foundry. In such meetings, when reference was made to the Union and the contract in discussing special cases, such as sub-scale wages, or matters pertaining to the operation of contract provisions, Chini's frequent comment was to the effect that he didn't care about the Union or the contract, and that he was running the shop. On another occasion, when there had been a discharge and a brief work stoppage, both of which Orr and Joseph Holli succeeded in adjusting with MacClay during Chini's absence, Chini called Orr and Holli to his office and berated them for causing "a strike". They attempted to explain that they had no part in the stoppage, but Chini, iii a burst of temper, pounded the table, asked who they thought was running the plant, threatened to transfer Orr to the Aurora plafit and Holli to the aluminum plant, and ordered there to stop bringing grievances to him. On still another occasion, while talking with Nick Mizolek, who had been elected a member of the committee, Chini warned him, again in a burst' of rage, to watch what he had to say as a committeeman or he would be discharged. Mizolek, in testifying to this, stated that he didn't believe Chini really knew what he was saying ; that the out- burst just "came out". MacClay on the other hand, appears to have had more self control, but his statements, according to the testimony of Orr, were equally discouraging. He attempted to evade the provisions of the contract and its wage scale by telling Orr that government orders had superseded the con- tract, and when Orr asked for the privilege of posting on the bulletin boards, reports on the various meetings with management, MacClay denied the priv- ilege with the statement that the other men of the plant did not need to know what went on in the meetings. The foregoing general conduct of the two representatives of management who were most intimately connected with the shop personnel and personnel matters, together with. the fact that a number of the committeemen and shop chairmen had been removed from the pay roll after very short service in their official capacities, engendered a feeling among at least a portion of the employees within the plant, that Respondent was unwilling to do more than tolerate committeemen to the extent that they were compelled to do so, and that active membership on the committee was an invitation to a discharge for conduct which otherwise probably would be overlooked. There is no testimony as to the manner in which the members of the committee or other shop chairmen who preceded Orr, fulfilled their duties on behalf of employees. The fact, however, that so many of them were dis- charged or quit shortly after taking office could not but have had an effect; it was not looked upon by the employees as a more coincidence, nor can it be, in the light of Miner's advice to Schroeder and Chini's statement to Mizolek. These facts, with the well known attitude of Chini, and the findings above set out, lead to a finding that by the foregoing conduct of Chini, MacClay and Miner, at the magnesium plant, Respondent did, in fact, restrain, coerce, and intimidate 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees in the - exercise of their rights as guaranteed in Section 7 of the Act G 13. The discharge of George O1r Prior to the construction of the magnesium plant here involved, Respondent had had no experience with that material upon which to base the construction of the new plant In a molten state, and while being cast, magnesium gives off large quantities of noxious'and disagreeable gases In the original construc- tion of the plant, the facilities for carrying off these gases admittedly were in- adequate and created working conditions which not only were highly disagree- able but which were believed by the employees to be a serious health menace. On January 19, 1943, George Orr was hired and placed under the foreman- ship of Miner, where he spent most of his time on experimental work. He is an experienced molder and had been a member of the Union for a considerable time, but immediately preceding his employment by Respondent, had worked in a foundry where, because of a closed-shop contract, he had been compelled to maintain membership in the appropriate CIO union. Shortly after he took employment with Respondent, Orr began to complain to Miner about the gas condition. He also freely expressed himself on the subject to the other em- ployees. At that time, one Tom Kirby was shop chairman, and John Murphy was committeeman from Orr's department. About two weeks after Orr's em- ployment, Kirby and Murphy were discharged, and for purposes of temporary shop representation, Orr, at Murphy's request, stepped into Murphy''-s place As Murphy put it, lie expected to be out only two or three days, and asked 'Orr to "hold things together" until he got back. In a meeting with MacClay con- cerning the discharges of Kirby and Murphy, which Orr handled, MacClay refused to return Kirby and Murphy to the magnesium plant but offered them jobs at the Auroi a plant of Respondent Kirby rejected the offer, while Murphy accepted He subsequently was returned to magnesium plant and is employed there at the present time A day or two following this meeting, Orr was elected shop chairman and from that time forward, pursued his official duties aggressively and energetically. The prompt and apparently effective attention he gave to all grievances com- ing to him soon gained the confidence and support of most of the employees. Grievances which formerly the men had not bothered to mention, were brought to him, with the result that within a short time, Orr and his committeemen were presenting six or eight such grievances to management each week. The collective morale of the employees also became strengthened and the impulse to protect their members and 'leaders from real or imagined mistreatment reached a point where sporadic work stoppages became difficult to avoid. As has been stated, in early 1943, the construction work at the new' plant had not been completed. One wall had been left open to lead into a-projected adjoining building. Machinery and equipment was still only temporarily placed s It is noted that all the acts coniplamed of were committed by employees who no longer are in the employ of the Respondent and who, except Miner, have not been so employed for from 6 to 9 months Since the departure of Chini and MacClay , one Bunte has been engaged as Industrial Relations Manager and Benjamin Wiseman has been Director of Labor Relations since April 1943 According to Mizolek , it was impossible for the union representatives to talk to Chini and MacClay . He felt , however , that with the advent of Bunte and Wiseman , conditions have improved and the committee now has less difficulty in getting along with Bunte and 'Wiseman although they do not always see eye to eye on every question raised There is no complaint by the committeemen at the - present, time concerning the attitude of either management or its representatives toward the exercise by the committeemen and the shop chairman , of all their reasonable functions. HOWARD FOUNDRY COMPANY 69 and to some degree, safety factors normally to be expected had not yet been completely installed or established. During this period, Chini was driving for more and more production, and Orr, as shop chairman, was demanding relief from the admittedly bad gas accumulations and miscellaneous other objection- able conditions. On the subject of production, Orr arrived at an agreement with Chind that there was to be no yardstick of individual production based upon some pace making record, but that every man would be "on his own" to pro- duce , according to his best ability. The heavy turnover of labor was also a factor considered by Orr, Holli and Chini. This resulted in setting up a com- mittee composed of management and union representatives to pass on discharges; but there is no evidence that such committee ever functioned. Meanwhile, Orr continued to spend considerable time away from his work investigating griev- ances and repeatedly harped on the poor ventilation. He also severely criticized Chini's failure to follow the agreement to introduce new employees to their respective committeemen so that they could be enrolled in the, Union. The outcome of these activities by Orr, which no one disputes were in connection with his duties as a shop chairman, was an order by Chini to Orr that he remain at his bench and devote only a stated period of each day to grievance matters, and the inauguration of a formal grievance procedure which required that all grievances be in writing. Orr apparently made himself unpopular with most of management by his de- mands for correction in working conditions, especially the ventilation. Each complaint on this subject was met with the statement that fans had been on order for a long time but priorities interfered with delivery. Actually, however, although the condition was one that had existed from the start of production in 1942, fans were not ordered by Respondent until January 29, 1943. They were received and installed early in April. Subsequently two more were ordered and installed, and at the time of the hearing there was a requisition pending.for an additional $100,000.00 worth of ventilating equipment. Respondent's main criticism of Orr, as reflected by its conduct throughout the hearing, was that Orr was unreasonable in his persistent demands for correction of the gas con- dition, since the plant was new, not fully completed and the fans were not im- mediately available. The delay in ordering ventilating fans and the failure of Respondent to fully advise Orr what it had done to correct the condition, is not consistent with this position. Orr was properly urging the correction of an admittedly bad condition. Reasonable handling of such complaints, as they apparently are now being handled by l3unte and Wiseman, in all probability would have done away with many of the complaints and avoided much of the ill-feeling that was engendered by Chini's vehemence, his table pounding and his threats to transfer Orr and Holli to other plants of Respondent as reprisal for,bi"irtg the -employees' grievances to hire. Without detailing all the occasions, Orr, usually in collaboration with Holli, was responsible for quieting several disturbances among the men after brief work stoppages had occurred, and, as has been noted, appears to have made a constructive effort to maintain peaceful labor relations so long as he felt the men were not being imposed upon. In each instance, he, with Holli or others, in- duced the men to continue working while they tried to have corrective measures taken by management. The last of these occurred on Saturday, March 27, 1943, a few days before Orr's discharge. When he reported for work on that day, John Kluck, one of the coremakers, was discharged by Foreman Crandall.' for failure to remain for overtime work the night before. The failure was caused by amis- The former shop chairman who had been promoted to a foreman's position. ,70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD understanding of orders. In the absence of Orr who was late that morning, Kluck reported his discharge to Holli. Meanwhile the coremakers and molders refused to work. Holli interceded with Crandall, who refused to permit Kluck to con- tinue at his job. Holli then telephoned Lorenz, the anion international represent- ative, who instructed him not to let the men walk out and promised to come to the plant as soon as he could About this time Orr appeared and on being advised as to what had happened, he, too, interceded with Crandall and also directed the men to resume,their work while the affair was being adjusted. -Orr,-Holli, Kluck, Lorenz, and one or two other committeemen then called on MacClay, who, after hearing the facts, ordered Crandall to put Kluck back at work At this time, Chini was away for the week-end. The next work day, Chini called Orr, Holli and Elmer Brennwald, another committeeman, to his office Crandall also•was present. During this meeting, Chini referred to the Kluck incident of the preceding Saturday, accused Orr of inciting a strike and threatened to transfer Orr to the Aurora plant and Holli to the aluminum plant. The meeting was it stormy one in many respects and again touched on the gas conditions and the demands of Chini and Crandall for more production from the men. That also was when Chini said, "I don't give a God- dam, for the Union," and ordered Orr and Holli not to bring any more complaints to him. There is no question but that Orr kept the nien union-conscious, and forcefully kept their welfare before management, but there is no evidence that any of his complaints were unfounded. Just before quitting time. of the,day last referred to, Monday, March 29, the incident occurred which, Respondent contends, led to Orr's discharge! Brennwald, it finisher, with his crew of three, had just com- pleted a large mold and one member of the crew had gone to another part of the plant for some unexplained reason. Such molds are made in two parts, the bottom being known as the "drag" and the top portion as the "cope". These parts weigh about 300 pounds each. When finished, the cope is placed on top of the drag, which has previously been placed on a 36-inch roller conveyor and the completed mold is then pushed to the point where it is to be poured. ` At the time in question, the roller conveyor was temporarily laid on the floor, elevated on 2 x 4 timbers. The drag, of the mold in question was in place on the conveyor and the cope was resting on some wooden horses nearby. It is possible for the four men making up the crew to "cope" the mold by hand-that is, lift the cope by means of two long pipes that fit in rings at the respective corners of the frame, and carry it to the drag where it is placed on top of the latter piece and held by pins which fit into holes in the cope. However, because of the weight and size, this normally is done by an overhead crane. On this occasion, the crane had gone out of commission and Foreman Cieslak ordered the men to do the job by hand. Through some misunderstanding, Brennwald received the impression, also, that Cieslak intended to have them close the molds by hand in the future, as well. Such procedure necessitated two of the men, while carrying the cope, to walk across the roller conveyor on which the steel rollers are about four inches in diameter and about one inch apart. The men would thus be required to walk on the easily turned rollers,-an admittedly dangerous practice. Brennwald observed the danger and went to the other end of the mold shop, told Orr that Cieslak was going to require them to close the mold by hand in the future, and got him to cone up and look at it and also, to help him close the mold, and to remonstrate with Cieslak about the dangers involved in the hand closing process. 7 The facts leading up to the discharge are not seriously in dispute The facts sin round- ing the actual discharge must be drawn from sub§tantialconflicts in the evidence. produced by Respondent. . HOWARD FOUNDRY COMPANY 71 Orr did-, as requested. After some conversation with Cieslak about the dangers involved, Orr finally asked who would be responsible if one of the men fell and broke his arm or leg. Cieslak said he would assume the responsibility, whereupon Orr retorted, in effect "If a man falls and breaks his -- arm or leg, can I break your arm or leg?" This appears to have been only a part of the colloquy between Cieslak and Orr, which, while not described by any witness in detail, was said to have been colored by what the witnesses refer to as "foundry lan- guage." 8 At the end of the exchange, Cieslak remonstrated with Orr over the language he used, whereupon Orr apologized and went back to his work. Neither Cieslak's or Miner's testimony as to exactly what immediately followed the mold incident can be fully credited. According to Cieslak, he discharged Orr as soon as he made the above quoted statement, and refused to accept Orr's apology which, he said, came some five or ten minutes later. Miner, on the other hand, told a conflicting story of the discharge and concluded it by stating that he witnessed the incident, filled out a termination slip for Orr's discharge and placed it on Chini's desk that evening. Cieslak testified that he, too, had signed a termination slip giving as the cause of the discharge, Orr's threat toward him. Actually, Orr never received any termination slip, and the only such document in evidence, is a third termination slip, not in the handwriting of either Cieslak or Miner, dated March 31, 1943, signed only by Chini and giving as the reason for the discharge, "Creates disturbances among fellow workers. Has threatened foreman on 3/29/43." This recites that Orr's last day of employment was March 31, 1943. In the absence of Chini, none of the witnesses was able to explain how this termination slip came into existence.° Although the plant operated on the basis of 8 hour shifts, it was the practice to work the day shift for 10 hours, from 7: 30 a. in. to 6 p. in. This customary two hours of overtime became a substantial fixed factor in the earnings of the men. On Tuesday, March 30, the day following the mold incident and also the meeting in Chini's office about the Kluck matter,.Orr, Holli, Kluck and at least one other committeeman were sent home at 4 o'clock without explanation. Holli asked Crandall and Chini for the reason but they refused to answer him. When Orr asked Miner, he was told it was because of the Kluck affair. The next day, March 31, 1943, there was considerable unrest in the plant and indications that there might be another work stoppage in protest of sending their committeeman home early.1° Orr called a meeting in the court yard of the plant at noon of that clay and addressed the men. He severely criticized Chini and his treatment of the employees. His speech, couched in the vernacular of the foundry, was blunt, intemperate and provocative, when measured by normal standards. It was di- 8 There is some conflict -as to whether Cieslak had announced that thenceforth the mold would be closed by hand, and whether Orr actually first helped close the mold and then had his conversation with Cieslak, and was referring to future dangers. It is not deemed essen- tial to make a finding on this question. It appears immaterial whether the conversation referred to the immediate danger or the future perils of the practice, although the credible testimony of Orr indicates that he was referring to the practice, in the belief that Cieslak intended to follow it in the future. 8 Cieslak testified that he discharged Orr on the spot and then went to Miner's office and notified him what he had done. Miner testified variously that he was present and observed the incident and also that he learned of it later and then he discharged Orr. Orr's testi- mony, which fits into the documentary proof, was that he knew nothing of the discharge until the afternoon of the 31st when he was sent to MacClay's office, ostensibly to take a telephone call, but actually to be told of the discharge. Orr's version of the mold incident and the subsequent happenings is credited. 1° Miner testified he could not recall the incident of these men being sent home ; that it was unusual for one or two men to be sent home early but that sometimes whole depart- ments had been stopped at 4 o'clock when their work was out of line with other depart- ments. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rected chiefly against Chini, whose attitude, he said, was like a Nazi saboteur. He called him a slave driver and probably some other uncomplimentary things. He told the men that if they-were going to have a union to make it a good strong union that could walk out if necessary, but urged them not to take any work stoppage action over the treatment lie and the other members of the committee had received by being sent home early, and to allow their differences to be worked out along orderly lines" Shortly after he had resumed work following the noon speech, Cllirii came to Orr's bench and told him he was wanted on the telephone in the front office. He went to MacClay's office. This was only a ruse to get Orr out of the foundry without attracting attention The record reflects the following as to this mci- <lent:- Q All right, what did MacClay say to you, if anything? A. Well, he says, "You finally done it." I said, "Done what?" He said, "I have got orders for your release." I said, "That's tine!- He said, "Yes " I said, "On what grounds?" He said, "On grounds of causing a disturbance amongst the men and for threatening a foreman." I said, "Well, MacClay, you know daimn well I didn't threaten any fore- man." I said, "As far as causing any disturbance, you have had disturbance out here before and you will have it after me. You know, of course, I will have to prosecute the case It is an injustice." He said, "You are a good worker ; why do you want to stick your neck out for the "loogans" and "jiggs"?" Q Is that what they are called out at the plant? A. Lithuanians are called "loogans." Q Negroes are termed `,`jiggs"? A. There are many terms for negroes. Orr's discharge raises the question of the limits of propriety within which a senior shop steward may function without engaging in officiousness that becomes unwarranted interference with the operational functions of management on the one hand, or inexcusably engendering unrest among the employees by indulging in inflammatory and abusive statements directed to individuals in management, on the other. Obviously a steward may not, with impunity, allow his zeal to carry him into management's field of opei atious, nor may he justify slanderous and inflammatory charges against individuals in management that are unfounded in fact or are designed to incite the employees to insubordination or other similar conduct. "While Respondent has not made the foregoing charges against Orr in so many words, it has done so inferentially and has taken the position that Orr, by his conduct, brought about his own discharge. In the light of all the circum- stances, however, it must be and is found that the physical conditions existing at the time, together with Chini's inexcusable attitude toward the functions of the Union's shop representatives played a major part in setting up the chain of circumstances that impelled Orr to do many of the things relied on, especially the speech of March 31. Orr is neither a polished speaker nor a trained negotiator. He is a molder who has spent much of his working life as a production worker in shops and foundries . He cannot be measured by the same standards of surface niceties 11 Two witnesses , Miner and another foreman , testified that they were in the background at this meeting and heard Orr refer to Cluni as a "son-of-a-hitch"-but they were unable to recall anything else that nias said Orr denied using that term , and under the circuni- stances , hie denial is credited HOWARD FOUNDRY COMPANY 73' that are applied to the officials of management in general ; but, possessed of a fair amount of intelligence and the conviction that his duties as shop chairman carried a responsibility to insist on fair adherence to the pay standards of the contract, fair treatment of the workers in general, maintenance of reasonable conditions in which to work and the avoidance of abnormal and unnecessary occupational hazards for all the workers, he did so. When possible, he co- operated with management in trying to find the seat of some of the unrest, and on occasions, offered constructive suggestions. He was zealous and forthright, but no charge has been made that he presented claims or grievances for which there was no foundation. In the Cieslak incident bf closing the mold, he was protesting against the continuance of an admittedly dangerous practice. He did not advise the men not to follow Cieslak's order-in fact he appears to have assisted them in carry- ing it out-but at the same time, he was seeking to protect the men against pos- sible future accidents. As for his query to Cieslak, "Well, if somebody falls and breaks an armor leg, can I break your arm or leg," instead of this being a threat, it more properly falls into the class of a rhetorical question. Orr's conduct here was not an invasion of management's functions, but a realistic fulfillment of his own duty to the men. As for the noon time speech of March 31, this was riot an unwarranted attack on Chini, nor was it designed to incite the men to improper conduct. It was occasioned by the protests of the men concerning Chini's apparently arbitrary disciplining of Orr and the other committeemen, in sending them home early the day before. A work stoppage was being threatened and Orr, as the shop chairman, was seeking to prevent it, but he was not excusing Chini or his conduct. He joined the others in their resentment and he used language and similies that a better balanced or trained speaker probably would have avoided. His speech was in the vernacular of the foundry. It was the kind of language his listeners understood, but he told them that no matter what manner of man Chini might be, they must not take work stoppage action because of his mis- treatment of Orr and the others, for there were orderly processes for settling such things and they proposed to invoke them. His language against Chini probably was abusive, but Chini's conduct toward Orr on several occasions in the past and the common knowledge in the plant concerning Chini's conduct and attitude where union representation was concerned, provided some justification for criticism of him. Comparing hirer to a Nazi saboteur was indeed strong language under present circumstances, but not such as to justify a discharge, nor has it been suggested as a ground for the discharge. At most, in thin instance, it must be looked upon as a figure of speech. By this finding, there is no intention to condone slanderous, abusive, intem- perate of inflammatory statements by either employer, employee or union rep- resentative, but the evaluation of such statements must be measured by the circumstances, and the nature of the speaker and his audience. There is a responsibility on the employer to appraise such conduct in its true setting. So appraised here, it cannot be found that any of Orr's conduct would, per se, furnish a reasonable basis for his discharge. During the week or ten days following his discharge, Orr and the representa- tives of the Union had several conferences with representatives of Respondent and a Commissioner from the Conciliation Service, concerning Orr's case and other matters, but no adjustment was reached. During this period, Orr had made application for employment as a molder at two other foundries, without succm. However, with knowledge that molder's jobs were available, and with- out registering at the office of the United States Employment Service, within two ,74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD weeks after his discharge, Orr abandoned all effort to obtain molder work and took employment as a cutter-grinder at a lower rate of pay in order to learn a new trade Since then his pay rate has been advanced to more than the going rate for molders and he does not desire to return to his former employment with Respondent. On the basis of the foregoing facts, it is found that Orr, as the chosen union representatia-e of the men in the shop, energetically pursued the duties of his office ; that his complaints and grievances, voiced on behalf of the employees were based on apparently just cause and were persistently and vigorously pressed ; that because of his activities on behalf of the Union and its members, he became obnoxious to Chini, MacClay, and his immediate supervisors, and that the Cieslak incident of March 29, and the noonday speech of March 31, were seized by Chini, as a basis for the discharge. whereas the actual cause was Orr's zeal and aggressiveness in properly fulfilling his duties as shop chairman for the Union. It is further found that Orr's remarks to Cieslak did not constitute a threat of bodily injury to Cieslak and were not, in fact, so regarded by Cieslak. By discriminating against Orr because of his activity on behalf of the Union, Respondent has discouraged its employees from exercising their full privileges and rights derived from legitimate concerted activity for their mutual aid and protection, and has interfered with, restrained and coerced them with respect to the rights guaranteed them in Section 7 of the Act IV THE EFFECT OF THE U\FAIR LABOR PRACTICES ON COMMERCE The activities of Respondent set forth in Section III, above, occurring in con- nection with the operations of the Respondent described in Section I, above, have a close, intimate and substantial relation to trade, traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY While it has been found that Respondent has engaged in certain unfair labor practices, and there are indications that, as to the present relations between management and union committee members, the conditions existing in early 1943 appear to have been corrected through changes in the personnel of man- agement's staff, nevertheless, in furtherance of the policies of the Act, it will be recommended that Respondent cease and desist from such unfair labor prac- tices, and, (1) that George Orr be made whole for any loss of pay suffered by him as a result of Respondent's discrimination against him, between the date of his discharge and the date when he first obtained regular employment, less his net earnings" during said period, notwithstanding his failure immediately to seek employment or to register for employment with the United States Em- ployment Service, since the approximately 2 weeks of unemployment herein involved was spent in active efforts, in conjunction with duly constituted authori- ties, to effect a return to his employment with Respondent and was not an un- 11 By "net earnings" Is meant earnings less expenses , such as for transportation, room and board incurred by an employee in connection with obtaining work and working else- where than for Respondent, which would not have been incurred but for Respondent's dis- crimination and 'the consequent necessity of their seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N . L. R. B. 440. Monies received upon Federal, State, county, municipal or other work relief projects shall be con- sidered as earnings . See Republic Steel Corporation v. National Labor Relations Board, 311 U. S 7. HOWARD FOUNDRY COMPANY 75 reasonable time to be so used; (2) that Respondent post an appropriate notice in its plant, specially stating, in addition to the usual provisions, that it will not discximinate against any coi i(,teeuman or shop chairman because of the performance by him of his proper duties in such capacity. Upon the basis of the foregoing findings of fact, and upon the entire record, the undersigned makes the following : CONCLUSIONS OF L.\w 1. International Molders and Foundry Workers Union of North America, A. F. of L, is a labor organization within the meaning of Section 2 (5) of the Act admitting to membership the employees of the Respondent. 2. By discriminating in regard to the hire and tenure of employment of George Orr on March 31, 1943, and thereby discouraging membership in the Interna- tional Molders and Foundry Workers Union of North America, A. F. of L, by discouraging the exercise by such members of the incidents of their membership, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, the undersigned recommends that Respondent, its officers, supervisory representatives, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Molders and Foundry Woikers Union of North America, A F. of L, or in any other labor organization, by dis- criminating in regard to hire and tenure of employment or any terms or condi- tions of employment, especially, but not to the exclusion of general discrimina- tion, as such discrimination shall apply to the exercise by employees who have been duly constituted by the other employees, their repiesentatives, committee- men or stewards, of the full iesponsibilities of their respective offices as such committeemen, representatives, stewards or shop chairmen; (b) In any other manner interfering with, restraining or coercing its em- ployees 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 activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effec- tuate the policies of the Act: t (a) Make whole George Orr for any loss of pay suffered by him as a result of Respondent's discrimination against him, between the date of his discharge and' the date thereafter when be first obtained regular employment, less his net earnings during said period. (b) Post immediately in conspicuous places in the magnesium plant at Chicago, Illinois, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to all employees stating: (1) that the respondent will not engage in the conduct from which it is recommended that it cease and 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desist in paragraphs 1 (a) and (b) of these recommendations: (2) 'that Re- spondent will take the affirmative action set forth in paragraph 2 (ai) of these recommendations'; -:and (3) that Respondent's employees are free-to remain or become members of the International Molders and Foundry Workers Union of North America. A F.,of L, or any other labor organization, and especially that Respondent will not discriminate against any duly constituted representative, committeeman, or steward for its employees, in the proper carrying out of his functions as such official (c) Notify the Regional Diiector for the Thirteenth Region in writing, within ten (10) days from the receipt of this Intermediate Report what steps Respond- ent has taken to comply therewith It is further recommended that, unless on or before ten (10) days from the receipt of this Intermediate Report, Respondent notifies the Regional Director for the Thirteenth Region in writing that it will comply with the foregoing recommendations, the National Labor' Relations Board issue fn order requiring Respondent to take such action. As provided in Section 33 of,Article II of the Rules and Regulations of the National Labor Relations Board, Series 3-effective November 26, 1943, any party or counsel for the Board may within fifteen (15) clays 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 writ- ing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objec- tions) as he relies upon, together with the original and four copies of a brief in support thereof Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director for the Fourteenth Region (Chicago, Illinois). As further provided in said Section 33, should any party desire permission to argue orally before the Board request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. R N. DF,NHAM, Trial Examiner. Dated June 29, 1944.