Reeves Rubber, Inc.

In the Matter of REEVES RUBBER, INC. and UNITED RUBBER WORKERS OY AMERICA (C. 1. 0.) Case No. 01-C-2378.-Decided February 3,191,5 DECISION AND ORDER On September 16, 1944, the Trial Examiner issued his Intermediate- Report in the above-entitled proceeding, finding that the respondent had engaged in and and was engaging in certain unfair labor practices. and recommending that it cease and desist therefrom and take certain- affirmative action, as set out in the Intermediate Report attached thereto. Thereafter, the respondent filed exceptions to the Inter- mediate Report and a brief in support of the exceptions. No request for oral argument before the Board at Washington, D. C., was made- by any of the parties. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the respondent's exceptions and brief, and the entire, record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Reeves Rubber, Inc., its offi- cers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Rubber Workers, affil- iated with the Congress of Industrial Organizations, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or con- dition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form 60 N. L. R. B., No. 75. 366 REEVES -RUBBER, INC. 367" labor organizations, to join or assist United Rubber Workers, affiliated with the Congress of Industrial Organizations, or any other labor- organization, 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 guar- anteed 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 Jacob Horn immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges; (b) Make whole Jacob Horn for any loss of pay he may have suffered by reason of the respondent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings, during such period; (c) Post immediately in conspicuous places at its plant in San Clemente, California, and maintain for a period of at least sixty (60)^ consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from, which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's employees are free to become or remain members of United Rubber Workers, affiliated with the Congress of Industrial Or- ganizations, and that the respondent will not discriminate against any employees because of membership, activity in that or in any other labor organization ; (d) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, what- steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent discriminated in regard to the hire and tenure of employment of Margaret LaDuke within the meaning of Section 8 (3). of the Act be, and it hereby is, dismissed. CHAIRMAN MILLIS took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Afr George H. O'Brien, for the Board. Wright d Alilliken, and Herschel B. Green, of Los Angeles, Calif., for the re- spondent. Mr. Harng W . Clifford, of Los Angeles , Calif., for the Union. -368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD STATEMENT OF TFIE CASE Upon an annendecl charge filed by United Rubber Workers of America, affiliated with the C. I 0, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Twenty-first Region (Los Angeles, California), issued its complaint, dated May 25, 1944, against Reeves Rubber, Inc., herein called the respondent, alleging that the re- spondent 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 the amended charge, accompanied by notice of hearing, were duly served upon the respondent and the Union. With respect to the unfair labor practices the complaint alleged in substance that: (1) the respondent from on or about January 14, 1944, to the date of the complaint interrogated its employees as to their union membership and activities, threatened to sell the plant if the Union organized the employees and warned that union organization would entail lay-offs and plant shut-downs, urged its employees to relinquish their membership in the Union, suggested to its em- ployees that they form a company union, and characterized unions in opprobrious and derogatory terms, (2) the respondent discharge Jacob Horn on or about -February 2, 1944, and has since refused to reinstate him because lie joined and assisted the Union, (3) the respondent transferred Margaret LaDuke to a less desirable position on or about February 3, 1944; thereby forcing her to resign, and has since failed and refused to reinstate her because she joined and assisted the Union, and (4) the respondent by the foregoing acts interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent's answer filed June 15, 1944, denied the -commission of any unfair labor practices and denied that the Board had juris- diction. The respondent additionally averred in the nature of affirmative de- fenses that: (1) the employment of Horn was terminated for good cause wholly unrelated to his Union membership and activities; and (2) the respondent -transferred LaDuke from the day shift to the swing shift in order to increase -production and efficiency and that she thereupon left the respondent's employ of her own volition and without the consent of the respondent The respondent further avers that, at all times since February 3, it has been ready, able, and willing to reemploy LaDuke at the same compensation she was receiving when she left the respondent's employ. Pursuant to notice, a hearing was held on June 15, 16, 17, and 19, 1944, in San Clemente, California, before William J. Isaacson, the undersigned Trial :Examiner duly designated by the Chief Trial Examiner. The Board and the -respondent, represented by counsel, and the Union, by a representative, par- ticipated in the hearing Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues, was afforded ,all parties. At the opening of the hearing the Board's counsel moved to amend the pleadings to read "Reeves Rubber, Inc.," wherever the name of the respond- ent appeared as "Reeves Rubber Company." The motion was granted without objection. At the close of the hearing counsel for the Board moved to conform the pleadings to the - proof with respect to formal matters There being no objection, the motion was granted At the close of the hearing the respondent -moved to dismiss the Board's complaint in its entirety and the various parts thereof This motion is herewith granted with respect to the Board's allega- tion that the respondent transferred LaDuke to a less desirable position thereby forcing her to resign and since that time has refused and failed to reinstate her -because she joined and assisted the Union. The remainder of the motion is REEVES RUBBER, INC. 369 herewith denied-for the reasons set forth in Section III hereof . At the close of the 'hearing counsel for the Board and the respondent argued orally on the record before the undersigned. None of the parties filed briefs although afforded an opportunity to do so. Upon the entire record in - the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is a California corporation, incorporated April 16, 1943, as a successor to Ray R. Reeves Rubber Company, a limited partnership. It has its office and place of business at San Clemente, California, where it is engaged in the manufacture of synthetic rubber products used exclusively in the manu- facture of military aircraft. During the period from April 16, 1943, the date of its incorporation, up to and including December 31, 1943, it purchased raw materials valued at approximately $31,000, about 50 percent of which was shipped to it from points outside the State of California. During the same period, the respondent sold products valued at approximately $171,000, all of which was shipped to Consolidated Vultee Aircraft Corporation, North American Aircraft Company, Rohr Aircraft Company, Goodyear Rubbber Company, and Goodrich Rubber Company, for use in airplanes manufactured for the United States Army Air Forces. During the first week of February 1944, the respondent employed 77 persons in its plant.' II THE ORGANIZATION INVOLVED United Rubber Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion On January 15, 1944, employee Jacob Horn' went to Los Angeles to secure the aid ofthe-Union's officials in an attempt to organize the respondent's employees. The night before, Horn, in a conversation with Snow, the respondent's secretary, had disclosed his intention to confer with the union officials. According to Horn, Snow began the conversation by inquiring about the "attitude" of the employees. Horn replied that the employees' morale was "very poor" and, in order to remedy the situation, he planned to go to Los Angeles the next day and enlist the Union's support in organizing the respondent's employees Re- joining that he was against unions which he had found to be composed of "racketeers," Snow suggested that the employee form a "little club" of their own instead. He shrugged his shoulders when Horn asked whether he was 1 These facts are predicated upon stipulations entered into between counsel for the Board and the respondent at the hearing, the undisputed testimony of Ray R Reeves, the respondent's president and a letter from Larry D. Snow, the respondent's secretary to the Board's Regional Office in Los Angeles, dated March 17, 1944 Although the respondent in its answer denied that the Board had jurisdiction over its operations, Secretary Snow admitted in the-above letter that the respondent is "covered by the Interstate Commerce Laws as the greater majority of materials . . . produce [d] originate [d] outside the State of-California and all of [its] material is sold to the U. S Government indirectly through the aircraft companies." R Horn's discharge is hereinafter discussed at pp. 375-382, infra. 628563-45-vol. 60-25 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suggesting the formation of a "company union " Horn continued that the United Rubber Workers was the oily bona fide union in the rubber industry Snow cautioned that he would be compelled to combat the Union, because of his position as an official of the respondent. According to Horn, Snow at the conclusion of their conversation, suggested that Horn again meet-with him the following day and that, in accordance with this suggestion, he made a special trip to the plant the next morning' and met with Snow in his office. Snow again depicted union leaders as "racketeers" whose sole interest was the extraction of union dues Horn informed Snow that he nevertheless adhered to his original intention to confer with the Union officials that day. Snow, admitting that he had had a con- versation with Horn on January 14, testified, "When he mentioned unionizing the'plant I asked him what he had in mind. And he said that the company needed a union, and that he was dissatisfied with his job and that he was either going to quit or form a union." Thereupon, Snow admittedly advised Horn, "Well, Jake, if you are dissatisfied why don't you go see Doe [President Reeves]." He denied, however, making the other statements attributed to him by Horn- Snow also denied talking with Horn concerning unions on January 15, de- claring that he had attempted to arrange an appointment for Horn with Presi- dent Reeves that day, but without success since Reeves was already in conference when Horn came into the respondent's offices Upon his observation of the demeanor of Horn and Snow upon A he witness stand, and in view of Snow's virtual admission that upon learning of Horn's plan to organize. the employees he sought to arrange a meeting between Reeves and Horn in order that Reeves might dissuade Horn-from continuing with his project, the undersigned finds that the above conversation took place substantially as related by Horn The undersigned finds, however, that Snow did not suggest that Horn meet with Snow on Saturday but recommended that Horn confer with President Reeves before proceeding to discuss organizational tactics with the Union's officials. The undersigned further finds that Snow, failing to arrange a meeting between President Reeves and Horn that clay, utilized the occasion to repeat the statements attributed to him by Horn The next day, Sunday, January 16, upon his return from Los Angeles, Horn was informed by employee John Horn, Sr., his father, that President Reeves desired to speak with him at the plant that day. Accordingly, Horn went to the plant that morning and met with President Reeves and Andrew Stiller, the respondent's day shift foreman and assistant to Plant Superintendent Charles Arens' According to Horn's testimony, which the undersigned credits,-Horn, upon arriving at the plant, gave both Stiller and Reeves circulars which he had obtained at the Union's headquarters the previous day Stiller, declaring that he already knew of Horn 's mission to Los Angeles "about unions," commented that Horn, as a result of his union experiences at Pacific Hard Rubber Company, where Stiller and Horn had previously worked, should know better than attempt to unionize the respondent's employees He explained, however, that the reason Horn had been summoned to the plant was to inform him that he was "being groomed for a better job" Frorn thereupon vowed that he had not "contacted any of the fellows"concerning the Union, but that he had merely forewarned the management before taking action. Reeves bluntly inquired whether Horn 3Ilorn's hours of employment were from 4 o'clock in the afternoon until 12 midnight Sunday through Friday. S The undersigned rejects Reeves ' testimony that he was not responsible , for , Horn's appearance at the plant that day Significantly , Secretary Snow admittedly' - attempted the previous day to arrange a meeting to afford Reeves an opportunity to eliminate the cause of Horn 's dissatisfaction,-which dissatisfaction presumably inspired his attempt to unionize the plant. REEVES RUBBER, INC. 371 intended to proceed with his plan, threatening that "if the Union came in he intended to sell to Kirkhill," a- rubber manufacturer located in California. Reeves explained that he had come to San Clemente "to get away from unions." "far enough away that the union wouldn't bother him," because of his troubles with racketeer-controlled unions in Boston, Massachusetts. He warned that in the event the plant was successfully organized it "would be run by Negroes from Los Angeles and Mexicans from San Juan Capistrano"' At this juncture, Reeves, declared that he wished to pattern his plant after the Hershey plant in Hershey, Pennsylvania, promised that "If the employees-wanted they could set up a grievance committee of their own and he would be glad to interview anybody in his office at any time." Neal Frazer, the respondent's electrical con- sultant joined their conversation and interposed, "Why [don't] the fellows give the Doe [Reeves] a chance to pay for his machinery, and forget about organizing for awhile and give him a chance to think the thing over" Horn agreed not to "sign anybody up" until he had given Reeves an opportunity to improve condi- tions in the plant. The testimony of Stiller and Reeves with respect to the foregoing conversation, although differing from Horn's version in some respects, is corroborative thereof in several material particulars. Thus, Stiller testified that President Reeves warned that "lie couldn't afford to put up with any strikes or fight the unions" and that "he would sell the place" rather than do so Stiller denied that he participated in the discussion as well as the remainder of Horn's testimony concerning Reeves' role therein Reeves also admitted that during the aforesaid conversation lie had threatened to sell the plant in the event of difficulties with the Union. Moreover, in contrast to Stiller's testimony, he admitted that Frazer had made the statement attributed to him by Horn and that Horn had pledged, "Well, Doe, I can see your position. I won't sign the fellows up I will come to you personally before I go into any union activity." Reeves, admittedly accepting this pledge, replied, "OK " Reeves furthermore admitted, "I have told all the employees at any time they want to come to my office, the office is open to them ; and they can have whatever committees they wish. We will welconie any ideas of that type." (Emphasis supplied.) Reeves, while denying that he had made any reference to Negroes or Mexicans, admittedly warned Horn "it you [hire] through the hiring hall you [have] to take whom- ever they [send] to you." Reeves denied the remainder of Horn's recital of their conversation. Upon the undersigned's observation of the demeanor of Stiller and Reeves, coupled with his examination of their testimony, noting especially the anti-union character of the statements admittedly made by Reeves, the fact that Reeves' and Stiller's testimony varied not only from Horn's account of the above discussion but from that of each other, and noting further that the state- ments attributed to them are similar to undenied statements made by them and other members of the respondent's management to other employees (see pp. 6-8), the undersigned rejects their conflicting versions of the above conversation, insofar as they differ from Horn's recital. Horn testified that, in accordance with Snow's prior request that he advise Snow of the outcome of the above conversation he stopped in Snow's office after talking with Reeves and Stiller, and informed Snow of his conditional promise to suspend organizational activities for an indefinite period.e 6 San Juan Capistrano is one of several villages within the vicinity of the plant. 0 Snow denied that he had had any conversation with Horn between Saturday, January 15, and'February I., In view of Horn's explicit account of what he said to Snow, coupled with tlip'reference admittedly made by Snow on February 1 to Horn's prior assurance' given to him and Reeves that Horn would suspend organizational activities ( p. 375, infra), the undersigned finds that this conversation occurred as narrated by Horn. I 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to his promise given President Reeves on January 16, Horn, for about 2 weeks thereafter refrained from all organizational activities. On Sunday, January 30, however, Horn, feeling that "conditions in the factory had gone from bad to worse" began an intensive solicitation campaign among the em- ployees. That afternoon he canvassed 19 employees at their homes in San Clemente and San Juan Capistrano, securing applications for union membership from all of them. That same evening, at Horn's request, Margaret LaDuke, a dayshift forelady in the buffing and trimming department, signed a union applica- tion card. She and Horn then visited the homes of 6 female employees, securing applications for membership from all but one of them, Evelyn Higginson, a secretary to the respondent's officials. The next few days, during the employees' rest and lunch periods, LaDuke continued her activities on behalf of the Union, advising the employees to join the union which Horn was currently organizing. On Wednesday, February 2, 3 days after the aforesaid solicitation activities began, the respondent took vigorous counter-measures to halt solicitation activities and defeat the-Union. Early that afternoon Horn was peremptorily discharged under circumstances hereinafter fully discussed at pp. 375-382, inifra. Horn's dis- charge signalized the commencement of the respondent's anti-union drive. At about 4 o'clock that same afternoon President Reeves assembled the female em- ployees from the day and swing shifts and exhibited to them a defective fuel cell fitting. He announced that the millman responsible for this fitting had already been. discovered and discharged. He also advised that appropriate government officials had been informed of what had occurred in order to determine whether there had been "sabotage". At 8 o'clock that sane evening Oliver Robertson, foreman of the buffiisg and trimming department, assembled the swingshift women employees in the plant during their lunch period. According to the undisputed testimony of Alice Gibson and Dora Miller, which the undersigned credits, Robertson, after alluding to the defective fuel cell fitting which had previously been exhibited to theirs by Reeves, observed that Horn had been spend- ing considerable time soliciting in behalf of the Union and that several of the girls had been asked to join. He warned that he knew from his own personal experience that unions were a "graft" and a "racket" from which the employees could derive no benefit. Moreover, he predicted that not only would the.em- ployees not receive a wage increase if organized, but, on the contrary, the Union would cause them considerable trouble He illustrated by warning that Presi- dent Reeves would sell the plant in the event of successful union' organization. Robertson not only failed to deny the statements attributed to him by employees Gibson and Miller, but he admitted admonishing the employees that if the plant were unionized the respondent would be required by the Union to import union laborers from Los Angeles to make necessary machine repairs, thereby entailing a shut-down of the machinery and a consequent loss of work to the employees. He further admitted warning them that the respondent would have no choice in the selection of employees for hire but would be compelled to hire whomever the union hiring hall sent. That same evening, after Foreman Robertson's address, Mrs Robertson, the nightshift forelady, called the employees together again and led them into Presi- dent Reeves' office where they met with Reeves, Stiller, and the respondent's vice president, Mr. Corley.' According to employees Miller and Gibson, Mrs. Robert- ' The evidence is in conflict as to the precise date this meeting and Mr Robertson's previously described address took place. There is credible testimony that both of the aforesaid meetings occurred on February 2, the date of Horn's discharge. There is also some vague and equivocal testimony to the effect that it occurred 2 or 3 clays later. It is clear, however, from the subjects under discussion and the statements made at both of these REEVES RUBBER, INC. 373 son, without discussing the matter with the employees present, advised Reeves that the girls liked Horn very much and consequently "were willing to give up the Union" in consideration of his reemployment. Reeves replied that Horn's dis- charge was unrelated to his union activities, but„in any event, Horn was still retained upon the pay roll. He thereupon proceeded to recount his difficulties with unions in the east, as a result of which, he declared, he -had come to San Clemente He added that he desired to pattern his plant after "Hershey" and make of his employees a "happy family". Reeves replied by repeating the warn- ings previously made to Horn that the Union would require the hiring of Mexicans and Negroes, and union repairmen from Los Angeles threatened to sell the plant. He recommended that they "have a committee to get together and come to [him]" concerning grievances. At this juncture the management officials retired to the adjoining office and the Union members, in compliance with Mrs. Robertson's request, signified their membership by raising their hands One of the women inquired whether the employees who had joined the Union and paid an initiation fee could secure a refund of their initiation fees. Thereupon, Mrs. Robertson recalled the management officials and propounded the same question to them. Stiller admittedly responded that since Horn's father still retained the Union's funds they might secure refunds from him. Reeves, however, advised the as- sembled employees that the management was not permitted to advise them con- cerning unions.' That sauce day, President Reeves, according to Joseph Mercado, a leadman .upon the swing shift whose undisputed testimony the undersigned credits, called Mercado into his office and, showing him a defective fuel celi fitting, declared that Horn was guilty of such work. Reeves then inquired, "What is this I hear about the union[" Mercado disclosed that he was a member of the Union, as were all of the swing shift employees. Reiterating the evils which would befall the respondent and the employees in the event of unionization, Reeves again threatened to sell the plant to Kirkhill. Reeves did not testify with respect to the foregoing conversation. The next morning, February 3, a meeting of the pressmen on the day shift was held in President Reeves' office' Kenneth Michael, a maintenance employee, testified without contradiction that he was advised of the meeting by Otis Rod- man and one Rohn, the head of the maintenance department. After the meeting meetings , as well as the persons in attendance at both meetings that they took place on February 2 It is unnecessary to detail the evidence upon which the undersigned relies in making this finding It suffices to point out that at the time of Mrs. Robertson 's meeting with President Reeves which undeniably occurred after Mr. Robertson ' s meeting, Horn, as the above-testimony establishes , v.as still on the respondent's pay roll at the time of the meeting. It is undisputed than February 3, Horn was given his certificate of avail- ability for employment by Preside t Reeves and removed from the respondent 's pay roll Moreover, the only forelady in attendance at both meetings of the sing shift employees was Mrs. Robertson , forelady of the swing shift The evidence is undisputed that February- 2 was the last night that she acted as, forelady upon the swing shift 8 Stiller 's testimony concerning the above described meeting differs somewhat from that of Mrs Gibson and Mrs Miller . The undersigned finds that his account is not only in conflict with their testimony and with other portions of the record , but is self-contradictory as well Reeves did not deny that the above meeting took place as testified by Mrs Gibson and Mrs. Miller. Mrs Robertson , although present at the hearing, was not called upon by the respondent to testify . Accordingly , the undersigned credits the testimony of Mrs. Gibson and Mrs. Miller with respect to the meeting 6 Vera Hanson , erstwhile forelady of the night shift of the trimming and buffing depart- ment , testified that she saw the pressmen assemble in the management 's offices on February 3. Michael , however, vaguely testified that it took place some 2 or 3 weeks after Horn's discharge The undersigned rejects his ambiguous testimony in this connection and finds. as Hanson testified , that the meeting took place on February 3 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was called to order by employee Charlie Alterman. Rodman pointed out that it was improper for officials of the managements to be present whereupon Corley, Reeves and Rohn temporarily left the room Alterman, announcing that it was for the employees to decide whether or not they desired a union, distributed a slip of paper to each of them upon which they were to write "yes" if in favor of the Union and "no" if opposed. Before the vote was taken he pointed out that although he had been a union member between 30 and 40 years it had not done him a "particle of good." Upon examination of the collected ballots, Alterman announced that all of those present had voted "no." The management officials thereupon returned to the meeting and Reeves asked Stiller and Snow to speak. Stiller pointed out that the current wage rates- at the respondent's plant were higher than those at Pacific Hard Rubber Company, a unionized plant,'° whereupon Secretary Snow announced that President Reeves had made an application for a wage increase covering all of the respondent's employees. The meeting thereupon adjourned. The respondent did not, as is already established, limit its anti-union activ- ities and conduct to the afore-described group meetings. Reeves and Stiller interrogated the employees individually concerning union activities and mem- bership and attempted to persuade them to relinquish their membership. Thus, about 2 or 3 days after Horn was discharged President Reeves called leadnian Mercado aside and asked him whether he knew of any employee upon the swing shift who was not a Union member. Upon Mercado's reply in the negative Reeves signified his concern, commenting "This thing has got me worried." Reeves did not deny that this conversation occurred as testified by Mercado In the same fashion Stiller admittedly inquired of employee Constancio Romero, whether he had signed an application card Upon Romero's affirmative reply, Stiller thereupon advised him that, since he had not taken an oath, he was nevertheless not a member. Stiller went beyond interrogation of the employees in his attempt to induce them to abandon the union. Sometime during the month of February Stiller approached Leadman Mercado and asked him to persuade the employees to withdraw from the Union Mercado replied that he was unable to do so since "everybody was a hundred percent". Stiller nevertheless urged Mercado "to talk to the fellows and try to talk them out of it . . . form a club of some kind, instead of a union, because unions [are] no good; they [will] just get you into a lot of trouble " Stiller, while denying that he had asked Mercado to persuade the employees to abandon the Union admitted "there was some conversation about . . . a club, starting out a club," and "I did tell him some- thing-that if it was started it probably would help build up the morale of the people." Stiller, in concluding his testimony n1th respect to this conversation, declared "I have been asked so many questions by various employees I can't recall-just what he asked me or just what I answered him " The undersigned rejects Stiller's vague and evasive denial that the conversation occurred as narrated by Mercado and credits Mercado's straight-forward account. Emulating the respondent's leading officials, Forelady Robertson advised Vera Hanson during the first part of February that the union would do them no good, warning that they would- he working "by the side of Negroes". She further added that "if the plant broke down [they] would be thrown out of work and have to wait until a union man would be called to repair it." About the middle of February, after Mrs. Hanson became a forelady of the swing shift in the buffing and trimming department, Mrs. Robertson instructed her to ascertain 10 The undersigned does not credit Stiller's denial that he was present at the above described meeting. REEVES RUBBER, INC. 375 which of the female employees were joining the Union. Moreover, Mrs. Robert- son, thereafter several times directed Mrs. Hanson to isolate the female em- ployees from one another during their rest periods and lunch hours in order to prevent union discussions . In particular , she advised Hanson not to let employee Dora Miller work in the pressroom alongside of the male employees since she was known to have engaged in union discussions with them." In similar fashion, President Reeves and Superintendent Arens summoned Leadman Mercado to Reeves' office and instructed him to keep Mrs. Gibson on the job since she was "going around and signing other girls." There is no evidence in the record that the respondent had ever promulgated a rule prohibiting the employees from conversing with one another, either while at work or during the rest periods. The undersigned finds that the respondent by the foregoing statements and conduct of its officials and supervisory employees 12 interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed them in Section 7 of the Act." B The discharge of Jacob Horn On February 2, 1914, at the inception of the Union's organizational campaign and in the midst of the anti-union activities hereinabove described (pp. 3-8, supra), the respondent summarily discharged Jacob Morn. On November 22, 1943, Horn, at the urging of Foreman Stiller, accepted a position with the respondent.'} From that date until his discharge, he was continuously employed as a millman upon the swing shift under the supervision of Foreman Stiller His principal duties were to mill, compound, and tube synthetic rubber stock for use in the presses and moulds in the manufacture of airplane parts Horn, as the above summary of facts uncontrovertibly establishes was the foremost union advocate among the respondent's employees. Not only was he solely responsible for inducing the Union to organize, but, on January 30, 3 days before his discharge, Horn, with some assistance from Margaret LaDuke, con- ducted a successful Union solicitation campaign among a large number of the respondent's employees Nor were Horn's solicitation activities, as the respondent contended at the hearing, unknown to the respondent at the time of the discharge. At about 5 o'clock on the evening of February 1, shortly after the swing shift had begun, "As previously noted Mis Robertson was not called upon by the respondent to testify and this testimony concerning her statements and activities stands undenied in the record. 12 The respondent is plainly - answerable for the activities of its officials and supervisory employees, all of whom had general powers of supervision and obviously had supervisory status upon which may be predicated employer liability. International Association of Machinists v. N. L R. B , 311 U S 72, 79-50 , H. J. Heinz Co v N L R. B , 311 U S 514, 520-521; N L R B v. Schaefer-'Hitchcock Co, 313 F (2d) 1004, 1007 (C C A 9) "The undersigned finds further evidence of independent violations of the rights guar- anteed the employees in Section 7 of the Act in the circumstances surrounding Horn's discharge and LaDuke's transfer (pp 375-385, infra) There is additional testimony in the record by Board witnesses of other anti -union state- ments made by the respondent 's employees , which , if credited , would be violative of the Act. The undersigned, however, noting especially the vague character of the testimony of the Board witnesses in question, and their inability to testify with any degree of particularity as to when the asserted conversations took place , rejects their testimony and credits the denials of the supervisory employees who assertedly made the anti-union statements "One of the inducements offered Horn by the respondent was a promise to pay $100 toward his transportation expenses from the State of Washington , w;here he was temporaiily residing, to San Clemente The respondent mailed Horn $50 at the time he accepted the respondent's offer of employment and promised to pay Horn the balance after lie had been employed for a period of 6 months 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Secretary. Snow approached Horn and engaged him in conversation 15 According to Horn, Snow inquired why Horn had breached his promise to Snow "in regard to the union," pointing out, "'you gave-me your word you wouldn' t organize until you saw me " (See p. 371, supra.) Horn, denying that he had given Snow such a pledge, explained that since conditions of employment within the plant had continued to deteriorate he had begun to organize the preceding Sunday. Snow, professing an inability to comprehend why Horn desired to bring a union into the plant "to tell Doe [President] Reeves how to run his business," inquired concerning the employees' basic grievance. Horn replied that he could not pre- sume to represent all of the employees since each employee had his particular grievance, but, that as soon as the Union was organized the employees would establish a grievance committee to bargain on their behalf. Thereupon, Snow predicted as he had in his previous conversations with Horn (see p. 371, supra) that unionization would result in the hiring of Negroes and a loss of work in the event of repairs to plant machinery by union laborers. Snow, admitting, that he had begun the aforesaid conversation, testified however, that Horn volunteered the information that he had begun to organize. He admittedly re- plied "Jake, I thought you told Doc you would talk to him about it, and you told me you would talk to Doe before you made any steps." -Moreover, he testified, that in answer to Horn's inquiry as to whether he had anything against unions, he replied that he had nothing "against unions in particular" but that there were a few things which puzzled him, whereupon, he inquired why Union officials' salaries were not publicized and Union income was not taxed. The undersigned, crediting Horn's version of this conversation, finds that Snow raised the subject of Horn's union activities. It is plain from the foregoing conversation that the respondent's officials, as early as Tuesday, February 1, knew of Horn's extensive solicitation activities in behalf of the Union. But aside from this affirmative and direct testimony concerning the respondent's knowledge of Horn's Union activities the entire congeries of events surrounding Horn's solicitation activities decisively refutes the respondent's claim that it had no knowledge thereof at the time of his discharge. It is undisputed that the management was forewarned of the domi- nant role which Horn ultimately played in the Union's solicitation campaign. This fact coupled with the extensiveness of Horn's solicitation activities among the respondent's small and compact staff of 77 employees including the attempted solicitation of an office employee, the ensuing discussion among the employees at the plant emphasizing Horn's prominent role, the respondent's interrogation of employees concerning the union membership and activities of their fellow employ- ees, and President Reeves' admission that he knew the identity of some union members,16 lead the undersigned to conclude that the respondent knew of Horn's solicitation activities at the time of his discharge. The testimony of the respondent' s witnesses, President Reeves and Foreman Stiller, concerning the events of February 2 leading up to and including Horn's 15 Snow testified that the conversation took place about 9 o 'clock that night. Mercado, corroborating Horn 's testimony , testified that Horn and Snow spoke together for about 45 minutes at about 5 o 'clock that evening The undersigned finds that the conversation took place at the time testified by Horn and Mercado 11 Reeves admitted that he knew the identity of certain of his employees who had joined the Union . Upon examination as to the source of his information Reeves vaguely replied "well , different persons told me they were. They seemed to mention around the shop that certain people are union members and certain people are not union members" Moreover, Airs Hanson testified without contradiction that Reeves informed her that "he knew the names of most everybody that had joined the Union ", pointing out, by way of illustiatlon, that he knew that one , Mrs Ziegler, was a union member. REEVES RUBBER, INC. 377 discharge is in sharp conflict. Thus, President Reeves testified that upon arriv- ing at the plant at about 11 or 11:30 that morning he discovered that certain fuel cell fittings had failed to cure," although they had been in the presses the required length of time. Reeves directed the pressman immediately to inform Stiller thereof. Upon learning that Stiller was absent from the plant because of flu's he went to Riley's restaurant which is located upon the main thorough- fare in San Clemente, where he had breakfast. He further testified that upon returning to the plant and seeing Stiller for the first time that day, he informed him of the undercured fuel cell fittings, and that, in the middle of the afternoon .Stiller advised that he had discharged Horn and that Horn had threatened to make the esppndent "pay through the nose" for his discharge. He denied that he had had any conversation with Stiller concerning Horn prior to the discharge declaring, "Mr. Horn and Mr. Stiller were very good friends at first, and I just didn't want to get into it." He subsdquently shifted his testimony stating, "It seems to me that Stiller did state that he bet Horn had left sulphur out of the batch, that was about all." Stiller's testimony concerning the events of that day is not only in direct conflict with President Reeves' version hereinabove set forth but is self-contra- dictory as well. On direct examination Stiller testified that at about 12:30 on the afternoon of Wednesday, February 2, he arose from his sick bed and went to Riley's restaurant where he met Robertson and Reeves, and that- Reeves informed him of the defective fuel cell fittings although he made no reference to Horn. He further testified that upon leaving Riley's he went to the plant for about an hour, whereupon, as a result of an investigation which he conducted, he proceeded to Horn's house and discharged him. Horn, who testified prior to Reeves and Stiller, stated that while driving through the main thoroughfare of San Clemente at about 12:30 or 1 o'clock that afternoon he waved to Robeitson, Reeves, and Stiller who were standing together opposite Riley's restaurant. He further testified that about 5 or 10 minutes later Stiller came to his house and discharged him. Upon the undersigned's observation of Stiller 1° and Reeves, and his examina- tion of their testimony hereinabove summarized, noting especially the marked disparity between their testimony as well as the various self-contradictions contained in each of their accounts, the undersigned is compelled to reject their testimony as incredible and finds that the sequence of events that day was as Horn testified. The undersigned therefore finds that Reeves and Stiller decided to discharge Horn at Riley's and that immediately thereafter Stiller proceeded to Horn's house to carry out this decision. This finding is further borne out by the continuously shifting and conflicting character of Stiller's testimony concerning his activities during the hour which assertedly elapsed between his return to the plant and his discharge of Horn. Stiller first testified that upon returning to the plant he discovered that the "kidney coupling" moulds had been shut down since the day shift of the previous day because of a lack of rubber stock 20 He claims that lie further discovered that although several batches of stock had been milled, they had not been blended and sheeted preparatory for use in the "kidney" moulds. In direct conflict to 31 "Cut ing" refers to the process whereby the rubber , after milling, is inserted in a press or mould where it remains until it reached a desired degree of hardness and con- sistency. "Undercured" rubber is scrapped. 11 Stiller was absent from the plant on account of flu from about 4 . 00 o'clock Monday afternoon , January 31 , until early Wednesday afternoon, February 2 19 As has been established , Stiller was an unreliable and incredible witness 20 "Kidney coupling" Is the name given to a kidney shaped rubber coupling which the respondent manufactures. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his previous testimony as to his conversation with Reeves at Riley's, Stiller claimed that he did not notice the defective fuel cell fittings until President Reeves called them to his attention. He testified that he thereupon placed some of the defective stock in the "testing block" and that it failed to "cure". On cross-examination, however, Stiller changed his testimony and declared that he had not made any tests before discharging Horn. Stiller continued that, since the defective fittings were made from so-called "quarter round" stock, he then inquired of Lois Lashbrook, a stock cutter, which shift had milled the stock in question, and that she replied that it had been milled by the swing shift. He testified that Lashbrook was able to distinguish between stock milled on the day and night shifts because the former was evenly piled, whereas the latter was haphazardly, thrown upon the table" Stiller also testi- fied that he interrogated the millman on the day shift, Gasaway, as to whether he had milled any of the stock in question and that Gasaway had replied in the negative Subsequently, however, Stiller testified "I have a faint recollection he told me he did not run any of that stock." Gasaway, although presently employed by the respondent, was not called upon by the respondent toy testify. Stiller first testified that he determined to discharge Horn upon ascertaining from his conversations with Lashbrook and Gasaway that Horn had milled the defective stock. He then switched his testimony and declared that he con- cluded that Horn had milled the defective stock by an examination of his time cards for the preceding 2 days. Upon admitting that the time cards contained no information as to whether Horn had milled "quarter round" "frill round" or "flat" stock, lie further vacillated, declaring that upon examination of these cards he noted that Horn had not run any coupling stock. In addition to betraying the falsity of Stiller's assertions as to when he determined to discharge Horn this statement itself is admittedly false. Stiller after testifying throughout the hearing concerning the failure of the "kidney" moulds to operate as a result of a shortage of stock, which he attributed to Horn, finally admitted that the only mould which was not in productive operation on February 2 was the mould- in which the defective stock had been run. This latter statement is corroborated by Reeves. Finally, contrary to Reeves' testimony, Stiller testified that upon determining to discharge Horn he notified Reeves to this effect. After first testifying that he could not recall whether Reeves made any reply to this announcement he testi- fied that he departed from the plant so hurriedly- that Reeves had no opportunity to reply. According to Horn, upon Stiller's arrival at Horn's house, Horn inquired whether Stiller's visit was prompted by his Union activities. Stiller, replying "not necessarily," declared that he had heard nothing of Horn's organizational activities since "he had been ill Monday and Tuesday, and he hadn't been in the factory yet that day ,12 Stiller then asked Horn to detail what lie had done in the plant the preceding day. After Horn had replied that he had worked extremely hard milling and tubing sufficient Goodrich stock to keep the presses running Stiller responded that he believed that Horn was responsible for leaving 21 Lashbrook, although testifying at length concerning the events of that day, made no reference to such conversation She testified that Stiller merely instructed her not-to cut any more of the stock in question since it was defective She further testified that when asked by Reeves whether she knew who milled the stock she replied "[she] didn't know who milled it " She testified, however, that although not advising Reeves to this effect, she was of the opinion that the stock had been milled on the swing shift because of the manner in which it had been piled - 22 The undersigned's finding that Stiller discharged Florn immediately after conversing with Reeves at Riley's restaurant is further borne out by the above testimony. REEVES RUBBER, INC. 379 sulphur out of a batch of Goodrich stock. Moreover, he added, there had been no kidney coupling stock on hand that morning. He concluded that since Horn's work had been unsatisfactory and that Reeves was aware of his "fraternizing" with women and drinking oh the job, Reeves had directed his discharge. Horn replied that he knew that` his discharge was the result of his Union activities and that he intended to file charges with the National Labor Relations Board to that effect 2' Thereupon, Stiller and Horn separately went to the plant. Stiller informed Reeves of the substance of his conversation with Horn and notified Snow of the discharge Upon Hor'n's arrival at the plant Snow, after some conversation with Stiller and Reeves gave Horn a check for his wages through February 1. Horn, after cashing the check at the bank, returned to the plant and paid Snow the monthly rental for the house which he subleased from the respondent. Snow had already begun to make out a receipt for the payment when Reeves, learning of the transaction, shouted, "Don't take his money I want him out of there I want him to move. I want that place for my employees " Reeves, however, finally permitted Snow to accept the proffered money. Horn then asked Snow for a certificate of availability for hire and a notice to quit the premises which he occupied. Snow replied, "You heard what the Doc [Reeves] said. I have nothing more to do with it. You will have to ask him." Accordingly, Horn made the same request of Reeves. Reeves began to recite how good he had been to Horn whereupon Horn interrupted that such recital was beside the point. Reeves then inquired, "Didn't `Red' [Stiller] tell you why you were fired"? Horn replied, "Yes, `Red' told me a lot of things I still don't actually know why I was fired." Reeves then said that as soon as he made a chemical analysis of the defective fuel cell fitting he would advise Horn as to whether he was discharged and that, in the meantime, he remained upon the pay roll. The following day Reeves gave Horn a certificate of availability for employment setting forth that Horn's services had been terminated. It was only after Stiller advised IIorn that he was discharged that the re- spondent began to search for evidence to substantiate its position that the fuel cell fittings were defective and that Horn was responsible for their milling. As the undersigned has found (p 377, septa), after the discharge, Stiller admittedly conducted a series of tests upon the fuel cell stock, in order to determine whether it was in fact defective. The result of the tests varied, one curing, one partially curing, and the third failing to cure Moreover, it was after the discharge that Reeves asked Lashbrook whether she knew who had milled the stock in question and that she had replied that she was unable to form an opinion . (Footnote 21, supra). Counsel for the respondent contended before the undersigned that Horn was selected for discharge because of his poor workmanship, low volume of output, drinking on the premises and reporting for work while intoxicated, and "frater- nizing" with the girls. Counsel for the respondent concluded that Horn's failure to include sulphur in the Goodrich stock on February 1, precipitated his dis- charge.' An examination of each of the grounds assigned as a basis for Horn's discharge discloses that the discharge was motivated by reasons wholly unrelated - '-It would serve no useful purpose, in view of Stiller 's established incredibleness as a witness, to extend this lengthy discussion still further by setting forth Stiller ' s self- contradictory account of the above conversation. It suffices to say that Stiller's testimony is in this respect, also, unworthy of belief. R' Significantly , the respondent's counsel omitted any reference to Horn's asserted failure to mill kidney coupling stock on February 1 as a reason for discharge As we have noted, S1 iller had insisted throughout most of his testimony that the failure to mill kidney coupling atstock was on- of the principal grounds for the decision to discharge Horn 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the manner in which he performed his duties as a millman. Thus, the respond- ent's contention that Horn came to work while drunk is based upon a single episode which, on its face, demonstrates the implausibility of the respondent's contention On Saturday, January 22, Horn, with the permission of Stiller, arranged to be absent from the plant Sunday, working upon the day shift Saturday instead, in order that he might attend a party at his home that Saturday night. About 10 o'clock that night Stiller came to Horn's house, which was .near the plant and, after having several drinks asked Horn to come to the plant and mill sufficient Goodrich stock to keep the presses in operation that night Stiller suggested that one Fer- ren, who was in attendance at the party, could assist Horn in tubing the stock. Thereupon Stiller, Horn and Ferren went to the plant and Horn, without punching the time-clock, began to weigh stock preparatory to placing it upon the mill. In the meantime, Stiller, after instructing Ferren concerning the details of the operation, started the mill. At this point President Reeves, noting that Ferren and Horn had apparently been drinking, ordered them to shut down the mill. Stiller explained to Ferren that Reeves was "scared of compensation laws.", Ac- cordingly, Horn and Ferren shut down the machinery and left the plant. That the respondent did not consider this incident a matter of any consequence, let alone a subject for disciplinary action, is not only plain from the above facts but from the undenied fact that Horn was never reprimanded Equally devoid of merit is the respondent's contention that Horn was selected for discharge because of drinking on the premises. Horn admittedly had opened a bottle of beer at the plant on two occasions, one while off duty. That the respondent did not consider either of these incidents a matter for disciplinary action is established by the undisputed fact that on both occasions Foreman Stiller shared the beer with Horn As for Horn's asserted "fraternizing" with women, the record is barren of evidence to support this contention. Stiller admittedly never complained to Horn because of such asserted activity. - The respondent's contention that Horn was generally careless and incompetent in the performance of his duties and that his volume of production was low is based upon the testimony of Stiller and a comparison and analysis of Horn's time cards with those of Gasaway, the millman upon the day shift. With respect to Horn's rate of production, however, Stiller, after first testifying on direct examination that he had called to Horn's attention the disparity between Horn's and Gasaway's rate of production, completely reversed his testimony and stated, "I don't recall about speaking to him on the amount of his production. No, the quality was all I was interested in." In view of this admission by Stiller, the supervisor who purportedly decided upon Horn's discharge, that Horn's rate of production was not a factor which he considered, the respondent is foreclosed from contending that the discharge was motivated thereby. By the same token, it is irrelevant that a comparison of Horn's and Gasaway's time cards indicates, as the respondent contends, that Gasaway was a more productive millman than Horn. With respect to Horn's asserted incompetence and carelessness Stiller stressed the following incidents as demonstrative thereof. He testified that Horn (1) frequently overloaded the mill thereby causing it to stall and, on one occasion, such overloading resulted in breaking the mill's pinion gear ; (2) scorched stock ; (3) failed to include sulphur in a "bumper pad"; (4) failed to cross-blend stock; (5) failed to refine reclaimed rubber before milling; and (6) on New Year's Day, Horn and Gasaway, while engaged in cleaning plant machinery absented them- selves from the plant for about a half hour in order to bring back a small radio" 25 Stiller admitted that the plant was not in operation at the time , but that Horn and Gasaway were engaged-in overtime work. REEVES RUBBER, INC. 381 Under the circumstances of this case, it is unnecessary to determine whether Horn was careless and incompetent in the particulars hereinabove alleged. It is clear from the record that, not only were these asserted derelictions not cause for disciplinary action or threat of discharge at the time they occurred but, on the contrary, the respondent admittedly continued to consider Horn a competent employee Thus, when but 3 weeks before Horn's discharge and before Horn had engaged in any of the aforesaid union activities, Horn threatened to quit the respondent's employ, the respondent's management officials admittedly persuaded him to remain. About January 12, as a result of Stiller's accusing him of scorching stock and breaking the mill's pinion gear, Horn angrily informed Stiller that if his work were unsatisfactory he desired his "dismissal slip." Stiller made no reply to this offer. The next day, Horn, still embittered over the charges levelled at him by Stiller, met with Superintendent Arens and Stiller and advised Arens that since he disliked working with defective machinery and was annoyed by Stiller he was quitting the respondent's employ. Arens urged him to reconsider his decision and remain, pointing out that Stiller was merely attempting to main- tain production, and that they were all somewhat on "edge" because the equipment was antiquated." Stiller admitted that he too urged Horn to remain, pointing out that the plant would obtain new equipment and that Horn "had a good future with the company," that he was "foi eman material" in fact." As a result of their exhortations, Horn consented to remain in the respondent's employ. Arens testified, in explanation of his strenuous attempts to induce Horn to remain, "I was very anxious to keep Mr. Horn. His work up to that-I wouldn't say up to that period, but in general, in most of the period, it had been very satisfactory. I had worked with NIr Horn before I knew his possibilities " Stiller also dis- closed that lie had told Arens on two occasions that Horn "is an awful good worker, but lie is a little bit rugged on his machinery He is not used to smaller mills ' There is no evidence in the record that any of Horn's asserted derelictions, aside from the incident on the night of January 22, when Reeves refused to allow Stiller and Ferren to operate the mill, occuri ed after his conversation with Arens. On the contrary the incidents upon which Stiller relies most heavily as a basis for the discharge all occurred prior to the aforesaid conversation and both Stiller and Arens admitted that Arens was apprised of these incidents at the time i It is clear from the above facts that Horn's discharge was discriminatory. The timing of the discharge at the inception of Horn's solicitation activities, of . which fact, as the undersigned found, the respondent was fully aware, consti- tutes persuasive proof of discrimination. The respondent was attempting to rid itself.of the Union; Horn's discharge was the first step of the respondent's campaign to effectuate that end. The discriminatory character of Horn's dis- charge is underscored by the implausibility of the reasons advanced by the respondent as grounds for its action, particularly in view of the vague, indefinite, conflicting and incredible character of the respondent's supporting testimony. It is clear from Horn's conversation with Arens and Stiller; and Aren's testimony in explanation thereof, that the incidents to which the discharge was belatedly attributed were not motivating factors. With respect to the events of February 1 and 2. which events assertedly precipitated the discharge, the respondent's supporting testimony is not only confused and contradictory, but, as the record discloses, Horn was discharged without prior investigation or inquiry into these events. In conclusion, the undersigned finds that none of the incidents upon 26 Shoitly after Horn's discharge the mill which he had been operating ,ias taken out of operation. 21 Compare Stiller's statement to Horn on January 16 when Stiller informed him that he was being groomed for promotion. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which the respondent relies prompted the discharge, but served as pretexts to cloak the respondent's real motive, the respondent's openly expressed and fully implemented desire to defeat the Union. Upon all of the foregoing facts, and upon the entire record, the undersigned finds that Horn was discharged because of his membership and activities in behalf of the Union. C. The transfer of Margaret LaDuke Mrs. LaDuke was first employed by the respondent in December 1941 as a trimmer in the buffing and trimming department 28 For several months prior to February 3, the date that she left the respondent's employ, she had been the day shift forelady in that department with between 12 and 15 girls under her supervision. She, in turn, was under the supervision of Foreman Oliver Robertson. As previously found (p 372, supra), LaDuke joined the Union on January 30 and from that date until she quit, 4 days later, actively urged her fellow employ- ees to join the Union. That the management was aware of her union activities is-established by the following undisputed account of her conversation with Foreman Stiller. On the morning of February 3, shortly after the day shift began, Stiller inquired of employee Lois Lashbrook whether she was a member of the Union, to which she replied in the negative. He then commented that he had heard that it meeting had been held at LaDuke's house for the purpose of securing union memberships LaDuke, upon learning of this conversation from Lashbrook, accosted Stiller and branded the foregoing statement as untrue. Stiller replied that he had heard a statement to that effect in the plant the preceding night. Within 10 to 15 minutes after this conversation, Foreman Robertson sum- moned LaDuke into his office and handed her a letter over his signature dated February 3, stating that she and Nancy Robertson, who was currently the fore- lady of the buffing and trimming department swing shift, were to exchange positions effective as of the following day. Upon Leading the letter she pro- tested, "You know I can't work on the swing shift. I have stock to take care of at,home in the afternoon." 2° Robertson testified that be thereupon pointed out, "This is only a temporary expedient We are trying to bring up the efficiency of the day shift. It may take two weeks or three weeks. At the end of the time you come back on your regular shift " LaDuke, according to Robertson, replied, "No, I am the oldest employee here and I am entitled to this job If I can't have this I will not work at all. I will quit." She thereupon went to the plant offices and, informing Higginson that she was quitting, asked for her current wages. Reeves thereupon came into the office and asked what was taking place. Hig- ginson replied that LaDuke was quitting, to which LaDuke added, because Robertson had transferred her. Reeves thereupon urged her to remain, pointing out that the transfer would be of a "temporary" nature. LaDuke replied that Robertson's letter made no reference to the temporary character of the transfer, but that, in any event, she was quitting.3° Pursuant to her request, Reeves thereupon signed a certificate of availability for employment, declaring that she 23 The buffing and trimming department's function is to remove with scissors and buffers the rubber overflow which adheres to the inside and outside peumeters of the various rubber pieces upon their removal from the presses 2° LaDuke referred to the livestock which she and her husband raised upori'their small farm nearby the plant. ^-0 LnDuke admitted at the hearing that she was unwilling to accept even a temporary transfer to the swing shift. REEVES RUBBER, INC. 383 "could tear it up" if she desired. At this point LaDuke and he retired to his Qffice where he outlined the manner in which her work was deficient. He pointed out that the output of the day shift was inferior to that of the night shift, specifically referring to, a shipment of kidney couplings which Consolidated- Vultee had returned but a few days before because of scissor cuts. He concluded that Mrs Robertson was being transferred to the day shift in order to increase its efficiency After her conversation with Reeves, Robertson approached La- Duke and asked her whether she had reconsidered her decision to quit LaDuke rejoined that she had secured "her time and availability" and was through. On March 11a 1944, after a charge had been filed with the Board in the instant case, alleging, among other things, LaDuke's discriminatory transfer, Presi- dent Reeves wrote LaDuke a letter offering her a position either on the day or swing shifts under the supervision of either foreladies Robertson or Hanson at the same compensation which she had previously received as a forelady. LaDuke, by letter dated March 22, rejected the respondent's offer stating "I cannot come back under the conditions which you impose, feeling due to my length of service with you, this is a deliberate insult and knowing that you knew I would not come back under the conditions which you have stipulated." Subsequently, President Reeves by letter dated May 1, invited LaDuke to attend a dinner which he and his wife were giving for the respondent's female employees as well as some of the former employees. Bill LaDuke, LaDuke's husband, replied by post card dated May 2. 1944. Why don't you stop this baloney and, stop sending letters and invitations to Peggy She is not working for you anymore and net,er will. I'll tell you that much Throw that line of yours on to the help that don't know you so well Jl The respondent contended in its answer and during the hearing that it selected LaDuke for transfer to the swing shift solely for the purpose of incrcas- ing the day shift's efficiency and volume of production. This contention is predicated primarily upon the testimony of Foreman Robertson who assertedly finding LaDuke inadequate as a forelady, decided without consultation with any other member of the management, to transfer her to the swing sh ft Robertson estimated that for some time prior to February 3, Cunsolidated- Vultee and Rohr Aircraft, the respondent's sole purchasers of kidney couplnres, were rejecting as defective between 20 and 25 percent of the kidney couplings shipped These rejections were because of negligently inflicted scissor cuts, blisters and flow cracks which the respondent's inspectors had failed to detect" He further testified that he traced the negligent inspection, and trimming to the day shift since that shift primarily trimmed and inspected kidney couplings -As a matter of fact, both LaDuke and Robertson testified that seNeral Lmcs during the month of January he criticized LaDuke for lapses of her trimmers and inspectors He complained, "You have just got to quit trying to do all the work yourself and devote yourself to taking care of the department right, because I don't figure, when I see you out here working with a buffer or with a knife or scissors, I don't think you are doing the job you are here for " In fact, as LaDuke admitted, only a few days before she quit, Robertson 31 At the hearing. Reeves testified that he had always been able and willing to rehire LaDuke, and that lie was currently wilting to iehrre LaDuke on the day shift as head of both the gauging and checking divisions with some 7 to 10 employees under her super- vision at the same rate of compensation which she previousily received. -Counsel for the'respondent reiterated this offer at the conclusion of the hearing n Robertson testified that there were no records presently available regarding the quantity and percentage of rejects. 384- . DECISIONS OF NATIONAL LABOR RELATIONS BOARD complained to her that the trimmers under her supervision were responsible for the faulty trimming. To substantiate his complaint he showed her 2 trimmers improperly trimming at that very time. In addition, he several times complained to LaDuke in December and January about miscounts in the number of articles shipped, which task was solely under her supervision. Illustrative thereof was his discovery about the end of December of a single shipment of some 1100 to 1200 pieces which reflected a gross miscount of several hundred pieces At the same time Vice-President Corley informed him that the aircraft companies were extremely-critical of the respondent's errors in shipping and inspection Robertson testified that as a consequence of these miscounts and inefficiencies in trimming and inspection he began to consider transferring LaDuke. The necessity for such a change, he claimed, became increasingly apparent with the continued expansion of the respondent's personnel and volume of production ". He pointed out that as a result of the respondent's continuing expansion of operations and enlargement of personnel the department was reorganized Whereas formerly the buffing and trimming department was under a single supervisory head, LaDuke, the department is now divided up into subdivisions, many of which constitute new operations Each is under the direction of a "lead girl". In addition to these "lead girls" one King Faurot assists Mr Robertson in supervising the work of the day shift." The swing shift numbering about 20 employees is under the supervision of a "lead girl" Robertson also stressed the changeover from kidney couplings to fuel cell fittings as the respondent's principal item of production as an additional reason for LaDuke's transfer, claiming that Mrs Robertson, as contrasted with LaDuke, had familiarized herself with the buffing and trimming of fuel cells prior to LaDuke's transfer. The circumstances surrounding Lalhike's transfer, noting among other things, the respondent's established anti-unionism, especially the discriminatoiy dis- charge of Horn, and the timing of the transfer concurrently with her Union activities, give rise to some suspicion regarding the respondent's motive in select- ing her for transfer. The undersigned, however, is not convinced that LaDuke's selection for transfer flowed from the respondent's anti-unionism. On the con- trary, the suspicions conjured up by the above circumstances are dissipated by the following facts. It is clear from the record that good cause existed for the trans- fer; LaDuke was admittedly the subject of criticism because of her failure prop- erly to discharge her supervisory functions. Moreover, her inadequacies as a supervisor became increasingly apparent and the subject of more frequent coin- plaint with the respondent's continuing expansion of production and personnel. That the reason for the transfer was LaDuke's inadequacy'as a supervisor, i ather than, as the Board's counsel asserts, an attempt to provoke her quitting, is further established by the sincere although ineffectual attempts of both Reeves and Robertson to induce LaDuke to reconsider her precipitate decision to quit and to remain in the respondent's employ. That, as the Board's counsel con- tended, the respondent was fully aware of the inconvenience which would result to LaDuke as a result of the transfer is, under the hereinabove circumstances, without significance. Obviously, an employer may in the interest of more efficient operation and increased' production order changes which will entail inconven- as Whereas LaDuke had supervised some 13 employees trimming and buffing products valued at about $20,000, the respondent, at the time of the hearing, employed some 50 employees ' on the day shift producing products valued at $167,000 ' Moreover, in contrast to the 5 or 6 parts in operation when LaDuke left the respondent 's employ, the respondent now had in production between 50 and 60 different parts 14 Mrs Robertson , who preceded Faurot, left the respondent' s employ about the middle of March - REEVES RUBBER, INC. 385; iences to its employees Knowledge on the part of an employer of-resultant in- convenience to an employee as a result of a proposed change becomes. significant- only if it can be coupled with a showing that the employer was motivated ini effectuating the change for the purpose of provoking a union adherent to leave- his employ. The undersigned is unable to draw such an inference from the, above facts In conclusion, the undersigned finds that the respondent directed the transfer- of LaDuke solely for legitimate economic considerations. Accordingly, the under- signed dismisses the Board's complaint insofar as it alleges that LaDuke was, discriminatorily transferred and thereby forced to resign. IV. THE EFFECT OF TILE"UNF_ III L APOR PRACTICES UPON, COMMERCE It is found that the activities of the respondent set forth in Section III above; occurring in connection with the operations described in Section I above, have a, close, intimate and substantial relation to trade, traffic and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in certain unfair- labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since it has also been found that the respondent discriminated in regard to the hire and tenure of employment of Jacob Horn, it will be recommended that- the respondent reinstate Horn to his former or substantially equivalent position„ without prejudice to'his seniority or other rights and privileges. It will be. further recommended that the respondent make whole Horn for any loss of pay lie may have suffered by reason of such discrimination, by payment to him of a sum of money equal to the amount lie normally would have earned as wages from the date of the discharge against him to the date of the respondent's: offer of reinstatement, less his net earnings 36 during such period. Upon the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. United Rubber Workeis of America, (C. I. 0 ), is a labor organizations within the meaning of Section 2 (5) of the Act. - 2 By discriminating in regard to the hire and tenure of employment of Jacob Hoin and thereby discouraging membeiship in the United Rubber Work- ers (C I. 0 ), the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining and coercing its employees in the exercise, of the rights guaranteed in Section '7 of the Act, the respondent has engaged. in and is engaging in unfair labor practices within the meaning of Section 8 (1). of the Act 35 By "net earnings " is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would pot have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and' Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L R. B 440 Monies received for work performed upon Federal, State, comity, municipal, or other work-relief projects shall be considered as earnings . See Republic Steel Coiporation v, N. L it, B., 311 U. S. 7. 628563-45-vol 60-26 I 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 unfair labor practices within the -Weaning of Section 8 (3) of the Act by transferring Margaret LaDuke to a less desirable position, thereby forcing her to resign and failing and refusing to reinstate her because she joined and assisted the Union. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and - upon the entire record in the case, the undersigned recommends that the respondent, Reeves Rubber, Inc, its officers, agents, successors, and assigns, -shall : 1. Cease and desist from : - (a) Discouraging membership in United Rubber Workers (C. I 0 ), or in .any other labor organization of its employees, by discharging'or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of employment ; -(b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to self-organization, to form labor organi- zations, to join or assist the United Rubber Workers, (C 1 0 ), or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities 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 undersigned finds will effectuate the policies of the Act : (a) Offer- Jacob Horn immediate and full reinstatement to his former or - substantially equivalent position, without prejudice to his seniority or other rights and privileges ; (b) Make whole Jacob Horn for any loss of pay he may have suffered by reason of the respondent's discrimination in regard to his hire and tenure, by payment to him of a sum of money equal to that which he normally would have ,earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings," during such period ; (c) Post immediately in -conspicuous places at its plant in San Clemente, ,California,- 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 re- spondent will not engage in the conduct from which it is recommended that it cease and desist in paragraphs 1 (a) and (b) of these recommendations; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of the recommendations; and (3) that the respondent's employees :are free to become or remain members of the United Rubber Workers, (C I. 0.), and that the respondent will not discriminate against any employee because ,of his membership or activity on behalf of that or any other labor organization; (d) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the receipt of this Intermediate Report what steps I the respondent has taken to comply herewith It is further recommended that the complaint be dismissed insofar as it alleges that the respondent discriminated in regard to the hire and tenure of employment of Margaret LaDuke within the meaning of Section 8 (3). 90 See footnote 35, supra. REEVES RUBBER, INC. 387 It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. -As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, effective November 20, 1943, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington, D. C, an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or -objections) as lie relies upon, together with the original and four copies of a brief in support thereof Immediately upon the filing of such statement or exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the parties and shall file a copy with the Regional Director. 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. WILLIAM J. ISAACSON, Trial Examiner. Dated September 16, 1944.