Federal Engineering Co., Inc.

In the Matter of FEDERAL ENGINEERING COMPANY, INC. AND FEDERAL ENGINEERING COMPANY, A CO-PARTNERSIIP and LOCAL 157, INTERNA- TIONAL UNION, -UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO) In the Matter of FEDERAL ENGINEERING COMPANY, INC. AND FEDERAL ENGINEERING COMPANY, A CO-PARTNERSHIP and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE- MENT WORKERS OF AMERICA, INDUSTRIAL OFFICE WORKERS AMALGAM- ATED LOCAL 889 -(UAW-CIO) Cases Nos. 7-C-1014 and 7-C-1030, respectively. Decided Febr.uarry 14,19,14-5 DECISION AND ORDER On August 24, 1944, the Trial Examiner issued this Intermediate Report in the above-entitled proceeding, finding that the respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take cer- tain affirmative action, as set out in the copy of the Intermediate Re- port attached hereto. Thereafter, the respondents filed exceptions to the Intermediate Report and briefs. Local 157 and Local 889 did not file exceptions or briefs. Pursuant to notice and at the request of the respondents, a hearing for the purpose of oral argument was held before the Board on Janu- ary '11, 1945, at Washington, D. C. The respondents appeared by counsel and participated in the argument. Local 157 and Local 889 did not appear. The Board has considered 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 Interme- diate Report, the respondents' exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modifications noted hereinafter. 1 The Trial- Examiner found, and we agree, that by statements of Superintendent Walter Johnson; as more fully set forth in the Inter- 60 N. L. R. B., No. 112. 592 FEDERAL ENGINEERING COMPANY, INC. 593 mediate Report, the respondents engaged in conduct violative of Sec- tion 8 (1) of the Act. In addition thereto, Plant Manager Dan LeVine told employee Ralph Reichard, at the time of Reichard's discharge, ac- cording to Reichard's uncontradicted testimony, that he, LeVine, "wouldn't have the CIO in his shop." Besides, on or about June 16, 1942, Office Manager Saul LeVine stated to employee Henry Richter, according to Richter's testimony, in substance that the respondents' office workers needed no union and that "he [Saul LeVine] would have no dealings whatsoever with any union." Saul LeVine denied making such statements to Richter. The Trial Examiner credited Richter's testimony. Like the Trial Examiner, we credit the testimony of Reichard and Richter, set forth above. We find that, by the afore- mentioned additional statements, the respondents interfered with, re- strained, and coerced the employees in the exercise of the rights guar- anteed in Section 7 of the Act. 2. The Trial Examiner found, and we agree, that the respondents were not justified in discharging Ralph Reichard under the terms of an existing closed-shop contract with the Society. At the time the Society made demand for the discharge of Reichard upon the ground that he was active in organizational work on behalf of Local 157, Reichard was a Society member, paid up in dues, and the Society so informed Plant Manager Dan LeVine; Reichard had not been ex- pelled from the Society, no formal proceeding looking toward his ex- pulsion was pending, and the Society did not represent otherwise to the respondents. Under the circumstances, Reichard having complied with the membership requirement of the closed-shop contract within the meaning of the proviso to Section 8 (3) of the Act, the closed-shop contract provides no justification for his discharge.' Rather we be- lieve and find that, in discharging Reichard, the respondents were motivated by hostility toward the CIO, and that the respondents seek to utilize the closed-shop contract in order to accomplish their unlawful purpose. 3. In his Intermediate Report the Trial Examiner recommended that the respondents be required to reimburse Reichard for any loss of pay he may have suffered by reason of the respondents' 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 his discharge to the date of the respondents' offer to rein- state him, less his net earnings during such period. Shortly after his discharge, when the respondents refused to accede to demands for ' Matter of Ansley Radio Corpoi ation, 18 N. L R B 1028 , 1043-1044 , of N. L R B. v. Electric Vacuum Cleaner Co , 315 U S. 685, 694-695 To the extent that our decisions in Matter of Taylor Milling Corporation, 26 N L R . B 424 , Matter of United Fruit Company, 12 N L R . B 404, and other like cases are inconsistent with the view herein expressed, - those decisions are hereby overruled. 628563-45-vol 60-39 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recognition of a new shop committee and for the reinstatement of Reichard, the respondents' employees went out on strike, resulting in a complete shutdown of plant operations from June 2 to June 8, 1942. In view of the fact that the complaint does not allege that the strike was caused in whole or in part by any unfair labor practice, our order should be taken to mean that Reichard shall not be entitled to back pay for the period of the strike. 4. Our back pay order with respect to Henry Richter, who was in- ducted into the armed forces of the United States after the date that he was discriminatorily discharged by the respondents, shall be taken to mean that the respondents shall pay immediately to,Richter, that portion of the net back pay accumulated between the date of his dis- charge to the date of his induction into the armed forces, without awaiting a final determination of the full amount of his award. 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 respondents, Federal Engineering Com- pany, Inc., and David LeVine, Saul LeVine, Dan LeVine, and Lillian LeVine.Waller, a co-partnership, doing business as Federal Engineer- ing Company, Detroit, Michigan, and their officers, agents,_ successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in any labor organization of their employees by discharging or refusing to reinstate any of' their em- ployees or by discriminating in any manner with respect to their hire or tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form, join, or assist Local 157, International Union, United Automo- bile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Industrial Office Workers Amalgamated Local 889 (UAW-CIO), 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 Board finds will effectuate the policies of the Act: (a) Offer to Ralph Reichard immediate and full reinstatement to his former or substantially equivalent- position without- prejudice to his seniority and other rights and privileges; FEDERAL ENGINEERING COMPANY, INC. 595 (b) Make whole Ralph Reichard for any loss of pay he may have suffered by reason of the respondents' discrimination against him by payment to him of a sum of money equal to the amount which he nor- mally would have earned as wages during the period from the date of his discharge to the date of the respondents' offer of reinstatement, less his net earnings during said period; (c) Upon application by Henry Richter within ninety (90) days after his discharge from the armed forces of the United States, offer him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges; (d) Make whole Henry Richter for any loss of earnings he may have suffered by reason of the respondents' discrimination against him by payment to him of a sum of money equal to the amount which he nor- mally would have earned as wages during the periods (1) between the date of his discharge by the respondents and the date of-his induction into military service; and (2) between the date five (5) days after his timely application for reinstatement and the date of the respondents' offer of reinstatement, less his net earnings during these periods; (e) Post at its plant at Detroit, Michigan, copies of the notice, at- tached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the Seventh Region, shall, after being duly signed by the respondents' representative, be posted by the _respondents immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily -posted. Reasonable steps shall be taken by the respondents to insure that said notices are not altered, defaced, or covered by any other material; (f) Notify the Regional Director for the Seventh Region in writing, within ten (10) days from the date of this Order, what steps the re- spondents have taken to comply herewith. AND IT IS FURTHER ORDERED that so much of the complaint as alleges that the respondents interfered with, restrained, and coerced their employees by announcing a raise in wage rates on or about May 17, 1942, be, and it is, hereby dismissed. APPENDIX A NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER Of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local 157, Inter- 596 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD national Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UA1vV-CIO) and International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, Industrial Office Workers Amalga- mated Local 889 (UAW-CIO) 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. We will offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination.. RALPH REICHARD, HENRY RICHTER. All our employees are free to become or remain members of the above-named unions or any other labor organization. We will not discriminate in regard to hire or tenure of employment -or any term -or condition of employment against any employee because of mem- bership in or activity on behalf of any such labor organization. ------------------------------ (Employer ) By------------------------------ ,(Representative ) ( Title) NoTE.-Any of the above-named employees presently serving in the armed forces of the United States - will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Max Rotenberg, for the Board. Hill, Hamblen, Essery, and Lewis, by Mr. Richard Forsyth, of Detroit, Mich., and Mr. Leonard A. Keller, of Detroit, Mich., for the respondents. Mr. Forest C. Fair, of Detroit, Mich., for Local 889. STATEMENT OF THE CASE Upon a third amended charge duly filed by Local 157, International Union, United Automobile, Aircraft and Agricultural Implement 'Workers of America (UAW-CIO), herein called Local 157, and an amended charge duly filed by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Industrial Office Workers Amalgamated Local 889 (UAW- CIO), herein called Local 889, the National Labor Relations Board, herein called FEDERAL ENGINEERING COMPANY, INC. 597 the Board, by the Regional Director for the Seventh Region (Detroit, Michigan), issued its complaint,' dated May 1, 1944, against the Federal Engineering Com- pany, Inc., herein called the corporation, and Federal Engineering Company, a co-partnership, herein called the co-partnership, (the respondents are referred to jointly as "the respondents,") alleging that the respondents had engaged in and were 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 com- plaint and notices of hearing thereon were duly served upon the respondents and upon Local 157 and Local 889. With respect to the unfair labor practices, the complaint alleges in substance that: (1) on or about May 24, 1942, the respondents discharged Ralph Reichard and on June 17, 1942, discharged Henry Richter, and have since refused,to reinstate them to their former or substantially equivalent positions because they joined or assisted Local 157 and Local 889, respectively, and engaged in con- certed activities for the purposes of collective bargaining or other mutual aid or protection; and (2) the respondents, through their named officers, agents and employees, through stated acts occurring in January through June 1942, inter- fered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. On June 20, 1944, the respondents filed separate answers The corporation in its answer admits the facts stated by the complaint as to its corporate organiza- tion. It states affirmatively that it is not engaged in production and has no employees and hence denies the jurisdiction of the Board. It further denies that it has engaged in any of the unfair labor practices alleged by the complaint. The co-partnership admits the facts stated as to its organization and the nature of its business but denies that it has engaged in any unfair labor practices. It states as an affirmative defense that Ralph Reichard and Henry Richter "were discharged because of their incompetence and refusal to properly attend to the work assigned to them to do by the respondents " Pursuant to notice, a hearing was held at Detroit, Michigan, on June 20 through June 24, 1944, before Charles E. Persons, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondents were represented by counsel and Local 889 by an international representative of the UAW-CIO. All parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the beginning of the hearing the respondents moved to dismiss the complaint as to the corporation "since it engages in no business other than the holding of said factory and machinery; buys no raw materials ; manufactures no product of any kind and does not sell or distribute any product of any kind * * *" and "has no employees * * *." This motion was denied without prejudice to the right of the respondents to renew it at the close of the proceedings. The motion was not thereafter re- newed. The respondents further moved to sever the consolidated cases con- tending that "incorporation in a single record of the facts concerning both cases constitutes or may constitute prejudice carried from one case to the other and may result in an improper determination of one of said cases, or both." This motion was denied Respondents moved to dismiss Case No. 7-0-1014 since, as a letter incorporated in the record shows, the charging union, Local 157, 1 On January 17, 1944, the Board ordered that the cases arising from the charges filed herein by Local 157 and Local 889 be consolidated. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desires to withdraw its charge 2 This motion was denied. The parties were duly notified that they had the privilege of engaging in oral argument before the undersigned. All parties waived such argument. The parties were further advised that they might submit briefs for the consideration of the Trial Ex- aminer. No briefs have been received. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS AND THEIR INTERRELATION a The Federal Engineering Company was incorporated under the laws of the State of Michigan in 1919 by David M. LeVine and two other individuals From 1919 until July 1940, this corporation functioned as a manufacturing and operat- ing company. In 1938 the Federal Engineering Sales Company, an equal part- nership, consisting of David M. LeVine, the father, and his three children, Saul LeVine, Dan LeVine and Lillian LeVine Waller, was formed to handle the sales of the corporation and other products. As of July 1, 1940, all active operations were taken over by the Federal Engineering Company, a co-partnership with the membership stated above. At this time the name of the corporation was changed to Federal Engineering Company, Inc. Thereafter, the corporation acted only as a holding company, owning land, buildings, machinery and equip- ment which it leased to the co-partnership. The four members of the co-part- nership own all the stock in the corporation. The directors are David, Saul. and Dan LeVine. David LeVine is President and Treasurer, Saul is Vice- President and Dan is Secretary. In the co-partnership, Saul LeVine is office manager, purchasing agent, and comptroller, while Dan is plant manager. David M. LeVine has no official title but is in -daily attendance and serves as general technical adviser. Both the corporation and the co-partnership have their prin- cipal office and plant at Detroit, Michigan. During the period material in these proceedings, the plant employed from 175 to 185 production workers and a maxi- mum of 6 or 7 office workers. The respondents are engaged in normal times in the production of tools and dies. During the war they have been engaged exclusively in the production of tank, plane and ship parts and tools, dies and fixtures for military use. The co-partnership uses patterns, forgings, engineering work and designing, steels, tool supplies and various maintenance supplies in the operation of the business. In the six-month period, December 1943 through May 1944, such purchases amounted to approximately $120,000.00. A -small portion, estimated to be less than 5 percent was purchased outside the State of Michigan. A similar amount- while purchased from suppliers within Michigan, was produced by manufacturers whose plants are located outside the State of Michigan. During the same six months period sales and shipments were approximately $750,000.00 in value. Fifty percent of these were made to war production plants within the State of Michigan with whom the co-partnership had subcontracts. The remaining 50 percent were made to war production plants outside the State of Michigan. 2 It is well established that the Board's jurisdiction is not affected by agreements en- tered into by private parties. The Board acts "not to vindicate a private right, but to give effect to the public policy as defined by Congress , viz : the prevention of unfair labor practices which, by causing and increasing industrial strife, obstruct the free flow of inter- state commerce " N. L. R. B. V. General Motors Corporation , 116 F. (2d) 306 (C. C. A. 7). 2 These findings are based on a stipulation of the parties incorporated in the record, on allegations in the complaint admitted by the respondents in their answers and on testimony which is uncontroverted. FEDERAL ENGINEERING COMPANY, INC. 599 • The respondents contend' that the complaint should be dismissed as to the 'corporation since it "engages in no business other than the holding of said fac- tory'and machinery; buys no raw materials; mar{ufacturers no product of any kind and does not sell or distribute any product of any kind . . . . has no employees and has not had any employees for a period of more than 3 years preceding the date of this motion." The undersigned finds no merit in this ,contention. The record shows that the corporation and the co-partnership are engaged in a single enterprise conducted by the same four individuals. It is manifestly impossible to keep separate the acts of the four partners in controlling the labor policies of the co-partnership and in the commission of the unfair labor practices, as found below in this Intermediate Report, from the acts of the same four individuals when acting as owners, directors, and officers of the corporation' Moreover, the corporation as the owner of the plant and all its non-liquid assets is a necessary party to effectuate the policies of the Act. It is essential that the owners of the plant who control its future and dispose of its property be joined in these proceedings. Only through such joinder can the reinstatement of those discriminatorily discharged and the payment of back wages found due them, be insured.' H. THE ORGANIZATIONS INVOLVED Local 157, International Union, United Automobile , Aircraft and Agricultural Implement Workers of America (UAW-CIO), and International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, Industrial Office Workers Amalgamated Local 889 (UAW-CIO), are labor organizations admitting to membership employees of the respondents. III. THE UNFAIR LABOR PRACTICES A. Background and chronology of events The respondents maintained collective bargaining relations with the Society ,of Tool and Die Craftsmen, herein called the Society, from 1938 to 1942. Agree- ments were negotiated and executed in 1938,6 1940, 1941, and 1942. The final agreement, as executed on January 19, 1942, provided for a union shop. Em- ployees within its coverage were to remain in good standing,with the Society. 4 Dan LeVine gave testimony , credited by the undersigned, reading as follows : Inasmuch as the partnership and the corporation at various times have the same problems , certain problems are taken up by both at the same time. The same witness was asked : Q. And does your father have something to do with labor relations? A More or less as a Director of the Board would meet on different problems In regard to labor or other situations that come up. Ordinarily there is a grievance pro- cedure set up . . . However , he sets the general policy. Dan LeVine also described the respondents informality of procedure , testifying that meetings of the co-partners were held : Right in the office, or they might even be at home, all come to the same house; dinner occasionally . Before dinner time we may discuss something . We might be having lunch together somewhere and discuss something . I want you to realize it is a -close partnership, a family affair and things can come up anywhere, any time, under any condition or circumstances. See Matter of R. M. Johnson and G. F. Sharp, a partnership, d/b/a AAA Dental Labora- tory, et at., and Dental Mechanics, Laboratory Technicians, Assistants and Helpers Union, 41 N. L. R. B. 263, 282-3. ° This agreement uas extended through the year 1939 , as shown by a rider attached to the original. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New employees were required to join that organization within five days of their hiring. There, had been delay in negotiating this contract The draft first submitted to the employees had been unacceptable to them and had been sent back for revision The employees were increasingly dissatisfied with their representation by the Society and its Chief Steward, Walter Dunham. After discussion beginning in December 1941, a meeting of dissatisfied employees was held at the Kendall Hotel in January 1942, soon after the new contract was signed. Various grievances arising from the Society's Administration of the contract were discussed An International Representative of the UAW-CIO, Matthew Hammond,' was present and spoke. He advised that designations of another representative by a majority of the employees must be secured before a Board election would be held. UAW-CIO application cards were circulated for signatures. As one result of this meeting, charges, signed by Hammond, were filed with the Board on January 22, 1942. The Regional Director notified the respondents on February 11, 1942, of this action 8 A second meeting of the dissatisfied employees was held at the same hotel in April or May 1942. Both Hammond and William C. Stevenson, president of Local 157, were present and addressed the group. These officials advised the employees present that Local 157 could not intervene during the period of the existing contract with the Society and that it therefore would be necessary for them to manage their own affairs. J. J. Griffin, president of the Society, and other representatives of the Society, meanwhile approached Dan LeVine, complaining of the activities of the, em- ployees leading the movement against the Society and demanding that they be discharged under the provisions of the contract in effect. LeVine replied, as stated in his credited testimony : I told Mr. Griffin these men were all members-of-the [Society] and unless I know definitely they are causing this trouble, it isn't a lot of hearsay and personal prejudice and bias; I need these men vitally, they are all working on important jobs, leaders and precision machine operators. I've got to have them. Unless I could be shown definitely these men were doing these things they were accused of, I didn't want to and couldn't possible (sic) discharge them. No action was taken by the respondents. On Sunday, May 17, early in the day, three individuals, Tex Slierdell and Anthony (Tony) Lamoretti, organizers for the Society, and a man identified-in the record only as the brother of employee Clarence Way, came to the plant inquiring for Chief Shop Steward Dunham. They were admitted by David LeVine. Under Dunham's leadership they singled ,out the leaders of the dissi- dent faction whom they roughly ordered : "Get your box and get the hell out of here. You are through." 8 The employees so accosted began to pack their boxes and turn in their tools at the tool crib. In so doing they were somewhat influ- enced, as employee Mannie Schiff testified and the undersigned finds, by the pres- ence of David LeVine and his seeming approval of the proceedings. Schiff's testimony reads : I looked up and I saw Dave LeVine still standing right a little ways fur- 1ther past the entrance of the shop there. He must have been about 25 feet 7 At the time of the hearing Hammond had become president of Local 157 8 These charges were withdrawn on March 5, 1942. U This quotation is from the credited testimony of Mannie Schiff, a leader in tool work. Other employees given similar orders were : Al Latto ; Allen J Wallace, James Gould, and Reichard. Dunham told Reichard, "Get your tool box and get out." FEDERAL ENGINEERING. COMPANY, INC. 601 away. I saw him looking right at us, so I assumed that he [Lamoretti] must be talking with authority since the management were standing right there. So I put my tools in my box and took my box off the bench and at this time a number of the employees came over and said "What is going on?" I told them exactly what had taken place, and they said, "Just a minute, just a minute. Don't go off like that. After all, we are all in it together just as much as one another." In at least one case, however, David LeVine interposed objection to the acts of the Society agents When employee Allen J. Wallace, a jig bore operator, was taking his tools to the crib in accordance with Sherdell's instructions to check out, LeVine advised Wallace, "Well, . . . he can't fire you . Let's go down here and find out what it is all about." Accordingly they made inquiry of Sherdell and Lamoretti By this time the employees in the shop were aroused. The agents of the Society were told positively that those singled out for eviction from the shop were no more involved in the movement to withdraw from the Society than were many others So vigorous were their protests that Sherdell was moved to apologize, saying that the situation had been misrepresented to him. He had been led to believe that the employees opposed to the Society were few in num- ber. In the outcome the three agents of the Society, as well as Chief Shop Steward Dunham, left the shop as ordered by the employees who thereafter returned to their duties. As a result of these events the dissident group held a further meeting on or about May 20 at the UAW-CIO hall 30 At that time it was decided to circulate a petition. LaVerne Pentland, an employee and a leader in the dissatisfied group testified, and the undersigned finds, that the petition "said in effect that the undersigned wish the Company to know that they didn't accept the [Society] as a bargaining agent." The petition was circulated during the noon hour and was signed by a large majority of the employees. Undisputed testimony states that 98 percent of the employees signed the petition. At this meeting also UAW-CIO application cards had been circulated. It was estimated that 90 percent of the employees signed such cards." On Sunday, May 24, as discussed in detail below, Reichard was discharged. The employees protested and engaged in a work stoppage for the remainder of the shift. After unavailing protest to Dan LeVine, they congregated in the "barber shopf 12 and sent word to David LeVine that they desired him to come there and explain Reichard's discharge. David LeVine did not respond to this invitation . The employees returned to their duties at the beginning of their next shift. - On the'Monday evening following, the employees held a meeting on the grounds of a neighboring shop This was mainly devoted to discussion of Reichard's discharge and means to be adopted to secure his reinstatement. Either then or earlier, the dissident group elected- a committee of 10 as a shop or grievance committee. On Tuesday morning June 2, at the opening hour, members of the committee met Dan LeVine and presented two demands. Gould, who acted.as spokesman, told LeVine that unless he agreed to reinstate Reichard' and to recognize this committee of ten the employees had determined to strike at 9: 30 a. m. LeVine was angry and applied an approbrious term to the members of 10 The date of this meeting as given by various Board witnesses varied widely The under- signed adopts the date given by James Gould who acted as chairman He testified, and the undersigned finds, that "the discussion was more or less what had happened on a Sun- day [May 17, 1942] in Federal Engineering" 11 Gould so testified 12 The "barber shop" is a room in which castings are ground . It was used for general meetings of the employees. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the committee, asking if they intended to tell him how to run the shop. He also, referred to respondent's contract with the Society and the fact that it had some months still to run, contending that under these conditions he could not grant the demands made.13 It does not appear that at this time LeVine referred to Reichard's reinstate- ment or made any definite answer to this demand. Under the stimulus of LeVine's answer and epithet the men decided to strike forthwith. All the production- employees left the plant and it remained closed, except for the attendance of'the office force, and was constantly picketed, until June 8, 1942. Officials of the Procurement Division of the Army, the Federal Bureau of- Conciliation and the Michigan State Board of Mediation intervened Several conferences were held and on June 8 an agreement in settlement of the strike was reached between representatives of the respondents, the Society and Local 157." The agreement provided that all employees "shall immediately report for work " ; that an immediate election be held for a new shop committee ; and that the respondents would immediately reinstate all employees who were on the pay roll of June 2 if "cleared by the War Department." The final paragraph of the agreement said: "All parties agree there will be no reprisals, recriminations or violance, and all parties hereby pledge to devote their full capacities to getting out production." The Society continued its efforts to secure the discharge of UAW-CIO adherents despite the terms of the strike settlement. On the same day the strike was called, June 2, 1942, it had been arranged that Karl Kruming, at the time secretary and treasurer of the Society, should be hired by the respondents. He superseded Dunham and described his function as "to clean out the plant." In collaboration with President Griffin of the Society, he compiled a list of 10 to 15 employees, including Reichard's name, whom they charged "were, collecting dues for the C. I. O. in the shop." Together with Sherdell and Lamoretti, Kruming thereafter had a conference with Dan LeVine. The Society representatives told Levine that "those were the men that were causing the trouble in that shop, and those were the men that should be let out if further trouble was to be stopped." The Society representatives admitted that the men listed had paid dues enough to maintain their good standing status. The rules of the Society provided that membership did not terminate until an individual was three months in arrears- At the conference LeVine maintained .his earlier position saying: "They would like very much to end the trouble, but they [the men listed] were practically all key men, and it would disrupt [the shop] at that time, due to the war effort," Although the Society strongly insisted that discharging the men listed was the only action which would effectively keep the C. I. O. out of the plant, the respond- ents took no action 15 v LeVine testified as to his answer : Well, there was only one thing I could tell them. I said that while we were unbiased and believed in employees having an opportunity to express themselves, that' that wasn't the time for it, that we had a definite contract, that had until the end of the year to run unless it was renewed, and that I could tell them, nothing else but that I would have to abide by the contract LeVine further testified that he suggested that a new steward and shop committee might be elected and informed the employees of the importance of the work in process for the prosecution of the war. 14 Hammond, Stevenson and the ten members of the dissident group's shop committee signed the agreement for Local 157. The findings in this paragraph are based on the unassailed and credit testimony of Kruming Dan LeVine gave testimony which is generally corroborative of the account given by Kruming. FEDERAL EATGINEERING COMPANY, INC. 603 A petition had been filed with the Board by Local 157, on June 5, 1942, asking for Investigation and Certification of Representatives. With the approval of the Board it was withdrawn on August 3, 1943. After the strike settlement the newly elected shop committee, all members of which were adherents of UAW-CIO, represented the employees within the terms of the Society's contract. On Decem- her 6, 1942, a consent election was held under the Board's supervision. The UAW-CIO won this election. On March 31, 1943, after negotiation, an agreement was executed between the respondents and Local 157. This contract was still in effect at the time of the hearing in these proceedings. B. The discriminatory discharges Ralph Reichai d was hired by the respondents on April 29, 1942, as an operator for a horizontal boring machine, at an hourly wage of $1.70. He participated in a blanket increase of 5 cents an hour effective May 18, 1942. He was a well experienced tool and die employee having worked in such shops for 17 years. He had had 6 years experience on the type of job assigned him at the respond- ent's plant, three of which were continuous and immediately preceded his hiring there. Reichard testified that his work had never been criticized by respondents' supervisors. He further gave unrefuted testimony, credited by the undersigned, that William Shiflet, a leader in the plant, said of a job done for him by Reichard .that "it was fine, it couldn't be any better." Foreman Joe LePage corroborated this, on Reichard's inquiry, to the extent of saying: "I think it must have been all right, or I would have heard about it." Reichard also took over a precision boring job in the absence of another operator and completed it to LePage's satis- faction.'' There is further testimony by leaders Gould and Schiff, credited by the undersigned, that Reichard did work under their supervision and proved himself a good workman." On the day of Reichard's discharge Superintendent Walter Johnson was ques- tioned by various interested employees about Reichard's work and responded : "I believe he has done very nice work. I have no complaints to make about his work." 38 On being hired Reichard answered an inquiry on his file card as to his union affiliation by entering "C. I. 0." He was told of the union shop contract with the Society and took the initiative in taking out a membership within the 5 days period required: At this time he took steps to procure a withdrawal card from the UAW-CIO. Reichard promptly associated himself with the dissident faction. He attended the second meeting at the Kendall Hotel and the meeting in the UAW-CIO hall. As noted above he was one of these singled out for eviction from the plant by the Society's agents on May 17. However, the record does not show that he was particularly prominent in the UAW-CIO organizational campaign. He said of his activities at the union meeting, and the undersigned credits his testimony, "Me being new there and everything, I stood back on the sidelines." 1e These findings are based on Reichard 's credited testimony. LePage had left the employ of the respondent and was not available as a witness. 14 Gould's unrefuted and credited testimony was that Reichard did at least two jobs for him as a bench leader. He further testified : "The work I got from him was all right, yes. I would say his work was good." Schiff was a leader on tool work He testified, and the undersigned credits his statements, that as leader he had given Reichard jobs to do. Schiff said of Reichard's work : "I could definitely say that there was nothing wrong. I had no complaints to make about the work." 16 This quotation is from Schiff 's credited testimony . Gould stated Johnson's answer as "he thought his (Reichard's) work was satisfactory." Campbell's version was, "He (Johnson ) said he didn't see anything wrong with his work, he thought his work was satis- factory, as far as he could see." - '604 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD On the day of his discharge, Reichard came to work at the usual time. Events preceding his discharge are quoted from his credited testimony, as follows A. Well, I had started to work and had my machine running, and I believe it was about 8 • 30 in the morning, a fellow which I don't know his name-he worked over on a bench by Jimmy Gould, I believe-cause over to me with a CIO application card, and he says to me, he says, "What did you do here? Did you fill this in or leave it blank?" "Well," I says, "As far as I know," I says, "It don't mean anything. You can either fill it in or leave it blank." Q. Was he talking about a particular blank space on the card? A. Yes. That just took about half a minute, and I turned around and started to look at the machines. I had a machine running, and a job which I believe belonged to Mannie Schiff, and I heard Danny LeVine behind me, and he says to this fellow who presented me the card, the man who pre- sented me the card, "Let's see that card." ' And the fellow had it in his shirt pocket then He handed the card to Dan LeVine, and Danny turned around to me and says, "Yesterday I seen Sou down by the Gordon Mill handing a fellow something, and lie put it in his pocketbook." I said,"Yes, I did." A pencil it was It was concerning a couple of tires that I spoke to him about that I heard lie had, and I asked for his address. Being I didn't have a pencil-I was up on my tool box-why I asked him to loan me his pencil and he gave it to me and I wrote down the address and proceeded back to my machine. Well, then, Dannie spoke up then and he says, "I have been told you were sent in here by the CIO and that you are an 'agitator." "And," he says, "You turn your tools in the tool crib and get out." I says, "Okay " So I proceeded to do that. I went down to the tool crib, down to the north end of the shop, turned in my tools, got my checks, came back up to my machines. Reichard's discharge was soon known by the leaders of the dissident faction, as well as the employees generally. What then occurred was described in Reichard's testimony," which the undersigned credits, as follows : . : . the fellows commenced to mill around me and asked me what, hap- pened. I said, "Well, lie fired me." "What for?" "He says for agitating, and I was sent in here by the CIO " "Well," they said, "we are not going to stand for that. We are going to find out more about it." So they all started to crowd up around the morgue.2° When Danny LeVine came back out of the morgue,,they asked him, "Why did you fire Reichard?" And he says, "Just a minute." He walks back into the morgue and -brings out this end mill. "Here is the evidence right here." He held- it up. "And, 19 Reichard's testimony is corroborated by several Board witnesses, Thus Pentland testl- 'fled, and the undersigned credits his testimony, that Levine gave as a second explanation of the discharge that "it was because of his Union activities ; that he had been a shop steward over at Coleman's, and lie had his record all before him " James Gould's testi- mony in regard to the discussion with LeVine, which is credited by the undersigned, reads as follows : So we all gathered around there at the stairway and talked to Dan and asked him what it was all about. And he told us that Ralph had beer discharged for union activities ; showed us an end mill that he had damaged on the job he was working on, told us that there had been a few complaints about his work, his work hadn't been satisfactory, and that he was an agitator and he had belonged to the UAW at Cole- man's, was a shop steward at Coleman's previous to coming to Federal Engineering. Employee Rudy DeMumbrum, also gave testimony, substantially corroborating Reichard which is credited by the undersigned. 20 A tool crib where new and especially valuable tools were stored. FEDERAL ENGINEERING COMPANY, INC. 605 also, I have had complaints on his work, and also frpm the Company on this one production job he has been doing." Well, I spoke up right away. I was standing outside of the crowd. I said, "That is a lie because I was fired for agitating and sent in here by the Union to organize. And how could you say it was the fault of the end mill when you hadn't seen the end mill yet, and you had fired me before you had seen the end mill?" Well, then, the boys spoke up and says, "Yes, how could you'?" Well, then, he says, "The truth of the matter is that I fired him on account of agitating, and he was sent in here from the UAW-CIO to organize." Schiff's testimony, in general, supports these statements of Reichard. Schiff testified that the discussion with Dan LeVine and Johnson lasted an hour and a half. The undersigned credits his further statement as follows: - I know the [Society] was brought up there and we were asked by Danny LeVine, and I believe even the superintendent, what, we had against the [Society]. They said it was a good union They had a good chief shop steward. Employee Isaac Campbell also gave testimony substantiating Reichard's ver- sion of events following Reichard's discharge. He further testified, and the undersigned credits this uncontradicted testimony, that Dan LeVine declared at this time that he "wouldn't have the C. I 0 " in his shop. Dan LeVine's explanation of Reichard's discharge, on first testifying as a witness for the Board, reads, in part, as follows : . . on the type of work he was doing lie wasn't using adequate cutters, and he was leaving his machine continuously. However, we might have worried along with him a little while longer to try to give him a chance because there was a definite shortage of boring mill operators, and-half a loaf was better than none However, inasmuch as we had these complaints from the Union about him, and inasmuch as he was definitely a trouble- maker, in order to keep peace and harmony around there and abide by our contract, we gave the fellow a release. In later testimony as respondent's witness, Dim LeVine told of the early incident in which he had accused Reichard of UAW-CIO activity in work time. LeVine insisted that Reichard gave "Lorento" a card "in the general shape of a Union card." He also insisted that in the later incident with the unidentified man on the clay of Reichard's discharge he saw Reichard take a union card out of his pocket and give it to the man who thereupon started to fill it out. LeVifie corroborated Reichard as to one matter since he testified that the unidentified man told LeVine that somebody in the vicinity of his bench "sent him over to see Reichard." LeVine further stated his information that Reich- ard had been a Union steward at Coleman's had been checked and found correct Since the record establishes the essential fact that Reichard's discharge was based primarily on his union activities the undersigned does not find it necessary to examine in detail the allegations of the respondents that Reichard was inattentive to his duties and used dull cutters or to resolve the conflicts of testimony thereon 21 21 The respondents attacked the credibility of Board witnesses Reichard , Schiff and Gould by attempting to show through time slips that Reichard was exclusively engaged on a production or repeat job, in his last three weeks of employement. Their contention is that lie could not have worked for other leaders (luring these weeks . The time slips pre- 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'Concluding findings as to Reichard's discharge The respondents contend that Reichard's activities on behalf of Local 157 during working time furnish justification for his discharge. The Board's policy as to union activities carried on in working time has been defined recently.' The Board recognizes that it is "within the province of an employer to promul- gate and enforce a rule prohibiting union solicitation during working hours." However, such a rule must not be adopted for a discriminatory purpose and it must be impartially enforced. It is clear that no formal rule against such solicitation had ever been established in the respondents' plant. Reichard ad- mitted answering an inquiry regarding a Local 157 application card during Sunday work hours when double time was paid. This incident immediately preceded his discharge. Assuming, arguendo, that he had furnished the uniden- tified employee an application card, as Dan LeVine alleged, this act, under the conditions here disclosed, could not constitute justification for Reichard's dis- charge. It is clear that the employee who had made the inquiry had taken the initiative, leaving his post of duty and moving across the shop to Reichard's machine. Nevertheless, he incurred no penalties. Moreover, the Society's chief steward, Dunham, openly participated in the flagrant Society activities in work time on the Sunday preceding. Dunham then ordered Reichard to leave the plant and to terminate his employment. Dunham was openly active in pointing out other leaders of the dissident group who also were ordered out of the plant. These inexcusable acts, for which Dunham was largely respon- sible interrupted the work of the entire plant for a considerable period while double time pay was accruing. Dunham was not discharged nor does the record reflect any disciplinary action imposed for his acts on May 17, 1942. By comparison Reichard's acts, viewed in the worst possible light, were of minor significance. - Nor does the undersigned find justification for Reichard's discharge in the demands presented to the respondents by the Society. Reichard promptly joined the Society. He paid the initial fees and his discharge occurred too soon to allow him to fall into arrears. He was never expelled from the Society. Moreover, he took steps to withdraw from his membership in Local 157. He attended two meetings of the dissident faction, but he was not prominent in the discussions held there. He advised would be adherents and was known to be sympathetic with those working for a change in the union representative. The undersigned finds his activities consonnant with the "full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection" which is the declared policy of the Act. The record makes entirely clear that there was wide-spread and deep-seated dissatisfaction with the Society as the employees' representative. This dissatisfaction was a major cause of the strike which closed the plant from June 2 through June 8, 1942. Further manifestations of the employees' discontent are shown in their election, under the provisions of the strike settle- ment, of Local 157 members to the new shop committee. These sentiments persisted for the six months ensuing and resulted in the election of Local 157 sented, however, do not account for 3 hours' work time on Sunday May 24, nor for an hour's time on Wednesday , May 20, in the preceding week. Moreover , the record presented covers only 17% hours out of 66, the normal full-time week, in the week preceding. There is, therefore , no-proven discrepancy in the testimony on this matter by Reichard , Gould and Schiff. 12 See Matter of Peyton Packing Company, Inc., and Amalgamated Meat Cutters and Butcher Workmen of N. A., A. F. of L., Local # 606, 49 N. L. R. B. 828. FEDERAL ENGINEERING COMPANY, INC. 607 is their representative when an election was held under the Board's super- vision in December 1942. After the strike settlement the employees accepted the contract for its duration. The undersigned finds no justification for Reich- nrd's discharge under the provision of the Society's union shop contract. Reich- ard fulfilled those provisions In joining the dissident group, and advocating .a change in affiliation from the Society to Local 157 as a means for retaining the benefits of unionization while avoiding the dissatisfaction which the employees manifested with the actions and policies of the Society, Reichard was exercising the freedom of action guaranteed by the Act and he is entitled to the protection ,which the Act throws around such activities 23 Upon the foregoing facts, in the light of the entire record, the undersigned is convinced that the basic cause of Reichard's discharge was the respondents' desire to prevent a defection of its employees to Local 157 and to avoid the ,difficulties which they believed would result from an interruption of their rela- tions with the Society. Confirmatory of this conclusion is Dan LeVine's dec- laration made immediately after Reichard's discharge, as found above , that he "wouldn't have the C. I. 0." in his shop. The effect of Reichard's dismissal would necessarily be, as the respondents intended, to encourage continued member- ship in the Society and discourage the defection to Local 157 and the C. I. 0. Equally the respondents' action would interfere with, restrain, and coerce the plant 'employees in a matter of self-organization and with regard to their forming, joining and assisting a labor organization other than the Society and their engaging in concerted activities for mutual aid and protection. After considering the record and the demeanor of the witnesses, the under- signed concludes and finds that the respondents discriminatorily discharged, Ralph Reichard and thereafter refused to reinstate him, thereby discouraging membership in a labor organization. By such action and by the anti-union statements of Dan LeVine in connection therewith the respondents have inter- fered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. Henry Richter was hired by the respondents on April 22, 1942, as a "follow up" clerk. His duties involved keeping track of orders for patterns and castings placed with other Detroit firms and making efforts to expedite their delivery ; similar follow up work on the progress of orders through respondent's plant with a weekly percentage estimate of progress made, and daily posting of employee's reports of time spent on the various orders in process. Richter had had no factory experience. Saul LeVine ordinarily had full control of office employees. However, since the factory supervisors would be concerned with Richter's follow up work, Saul LeVine conferred with David and Dan LeVine before hiring Richter. Dan LeVine expressed doubt as to Richter's qualifications and noted on his file card: "Doesn't have experience, but will try to see if he can qualify." Since the need for clerical labor "was very critical," Saul LeVine decided to employ Richter, although as he testified, doing so was "against the judgment of my dad and my brother." He arranged for Richter's attendance on an evening class in blueprint reading conducted by the Detroit Public Schools. Richter came under the immediate supervision of Allan Waller, assistant office manager and purchasing agent for the respondents. Waller gave him close supervision and instruction for the first three weeks of his employment. There- after, Waller judged that he was prepared to carry out his duties with only 23 See Matter of Ansley Radio Corporation and Local 1221 United Electrical and Radio Workers of America, C. I. 0., 18 N L. R. B. 1028. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD incidental supervision. Richter testified 24 that there had been no complaints about his work. He further gave unrefuted testimony, credited by the under- signed, to the effect that a "small filing method of knowing exactly what castings and work was being done by other corporations at any particular moment," had been installed by him and had been approved by Dan LeVine as a "swell idea" and mentioned to David LeVine. Although Waller, Saul LeVine and Dan LeVine all assailed Richter's work performance, as discussed below, they left Richter's testimony as to this filing method uncontroverted At the time of the strike Richter became interested in the UAW-CIO. He volunteered to organize the office workers and secure their cooperation in the strike by refusing to pass the picket line. He was advised that participation in the strike by the office workers was not necessary. They continued to perform their duties during the strike. Richter had joined Local 157 When the Union officials discovered that he was an office worker his card and fees were transferred to Local 889. Richter established relations with James Buckley, international -representative of Local 889 and turned in the Union application cards and fees for three other employees in respondents' office. Richter also participated in ,the picketing during off duty hours and conversed with the pickets when passing the lines in the course of his daily duties. David LeVine observed these'activities and came to Richter's office asking him what he was doing in the picket line. Richter replied that he "had to keep on friendly terms with the men in the uiteiest of the production, and therefore wanted to remain on friendly terms with any and all sides of the controversy " 25 On June 15, 1942, Buckley sent a letter to the respondents by registered mail. The Post Office return receipt shows that it was received on June 16, 1942. In this letter Buckley claimed that Local 889 represented a majority of the office workers and requested recognition and a conference date "to negotiate a contract for such employees " The letter had been addressed to Dan LeVine but was routed to Saul LeVine as the partner charged with administration of the, office. After receipt of the letter Saul LeVine came to Richter's office and a conversation ensued, stated in Richter's credited testimony, as follows : [Levine said] : What is all this union business about - I replied that it was merely a request for collective bargaining and the right for the union to represent the workers, in this case the office workers. He replied, "We do not need any unions to represent us." That if we had any complaints we could come up and speak to him directly and individually. I replied that that was a mighty hard thing for individuals to do, as they could not hardly expect to continue on the job much longer after making any complaint Therefore, it was necessary for a union to represent us. He said we did not need any union and he would have no dealings whatso- ever with any union. Also, he mentioned that we were part of management and as such needed no union to represent us 2° 24 Prior to the service of the complaint in these proceedings Richter had entered the service of the United States Navy He was stationed at Camp Rosseani, Port Hueneme, California Pursuant to an order duly issued and served by the Regional Director, his testimony was taken by deposition at Los Angeles, California, on June 8, 1944. 25 This finding is based on Richter's testimony David LeVine, although in daily at- tendance at the factory, was not called as a witness Richter's testimony- is thus uncon- troverted - 20 Saul LeVine denied that he had a conversation with Richter "About this letter and the Union." In view of the circumstantial character of Richter 's testimony and the discrepan- cies and contradictions in Saul LeVine 's testimony discussed below, the undersigned rejects LeVine's denial. - FEDERAL ENGINEERING COMPANY, INC. 609' Richter had secured union buttons for himself and the other union adherents in the office They began wearing them that day. Saul LeVine in his testimony admitted that they had attracted his attention. He stated that he had noticed buttons worn by one or,two women clerks and that Charles Lalibn, pay-roll clerk, did not wear it UAWV-CIO button Dan LeVine testified more frankly regarding the respondents' knowledge of Richter's UAW-CIO activities. He acknowledged that they had learned that Richter "was trying to organize the office work- ers," about a week after the strike and at the time the respondents were approached by Local 889.27 Buckley telephoned the plant on June 17 and had a conversation with Saul LeVine Buckley and LeVine in their testimony agree that LeVine refused to arrange a conterence date Saul LeVine referred to the recent strike stating that his participation in efforts to settle that controversy had delayed his office work. On direct-examination LeVine testified further, that he told Buckley, "It would not be possible for me to attend a conference with him, but that I would sometime in the future if he desired." When asked under cross-examination : "Did you at that time tell [Buckley] you were going to meet with him at some later time concerning the office employees?" LeVine replied: "No, I didn't tell him definite. I told him I didn't want to take the matter up at the present time Buckley testified positively that LeVine refused to consider meeting' at any time. Buck- ley's testimony in point here reads: Saul LeVine came to the line, and I explained to him what I was trying to get at, a meeting with the Company regarding the office workers, and their demands for a contract with the Corporation, and lMr Saul LeVine was very much upset and he says as far as he was concerned, the number of employees involved was so small that it didn't matter, it was trivial, and they were having enough trouble with the factory without getting involved with the office workers, and if any of them didn't like it, they could quit ; as far as meeting with me, he was going to have none of it. I tried to explain to him that I had received no letter, no answer to my request, and I wondered if he was going to answer. He said there was no such thing, there wouldn't be no answer to it, it was an answer that was given to me right then and there. He was rather excited. I tried to tell him that there being only four employees we could have a show down on cards. He wouldn't have none of that I tried to get a meeting, a definite (late or even an indication that lie would meet He said he wasn't having none of that, as far as lie was concei ned. the matter was going to be dropped right then and there, and I think he hung up on me. In resolving this conflict of testimony the undersigned has been influenced by the fact that Buckley's letter of June 15, as well as a later letter of June 29, 1942, was ignored by the respondents, that Buckley's testimony is corroborated by that of Richter quoted above and that the desired conference in fact never did take 27 Excerpts from Dan LeVine's testimony on this matter read as follows : Well , [ Richter] was talking to certain individuals we found out later were inter- ested in the other union , that is, the CIO Union , that lie had been talking to those men at various times and , progressively toward strike and after strike time we real- ized that he might have been , or must have been conferring on union activities rather than taking care of the work lie was supposed to be doing When asked whether the respondents were "of the opinion that Richter might be inter- ested in the UAW-CIO," he responded That's right . After this strike, so -called , it must have been about a week or so later that we found out definitely . . . That lie was trying to - organize the office workers . . . . I think he approached us, or some one else approached us at the time. 628563-45-vol. 60 40 ,610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, place. After considering the entire record and the demeanor of witnesses Buckley and Saul LeVine and the contradictory character of the latter's testimony, the undersigned accepts the testimony of Buckley and rejects that of Saul LeVine. It had been arranged between Buckley and Richter that the latter would call Buckley after the telephone conversation with Saul Levine and learn the out- come. He accordingly did so and was told the results of the discussion. Shortly thereafter, Richter called Buckley again and announced that he had been dis- charged. Richter's testimony as to the circumstances of his discharge is that, after talking with Buckley, he had reported to Schiff, Gould and Wallace, in- dividually, that Local 889 would not be recognized Saul LeVine observed his conversation with Gould and within 10 minutes came to Richter with a check for the full week and told him that he was fired. LeVine further instructed Richter that he was not to work further but was to leave the plant immediately. Richer, nevertheless, reported his discharge to members of the shop com- mittee and they conferred with David and Saul LeVine Richter described the interchange as a "heated conversation" in which he charged the LeVines "with an anti-union attitude throughout, both in their dealings with the UAW-CIO, Local 157, and specifically now with our request for union representation." Richter testified that the LeVines again repeated what Saul LeVine "had told me originally, that we had no need for a union of office workers, we were a part of management and not a part of the shop. And they insisted I was being fired -on merely grounds of being unsatisfactory." At the time Richter demanded that the reason for his discharge be put in writing but Saul LeVine refused to do so. Buckley, in his letter of June 29, to Saul LeVine, charged that Richter had been "discharged solely for Union activities" and, requested an "opportunity to arrange the reinstatement and payment of lost wages" to him. The respondents ignored this letter. The respondents' convention as to the reason for Richter's discharge is de- veloped in testimony by Waller and Saul LeVine. Waller testified that Richter's .work had been progressively inaccurate and inadequate, partly due to inexpe- _rience but more to lack of interest and effort. He testified that on Saturday June 13, Richter refused to wrap some blue prints for mailing and thereafter left the plant at 2: 39, as his time card shows, on his own motion. Regular closing time was 5: 30. On Monday Waller reported this occurrence to Saul LeVine who, as each of them testified, thereupon gave Richter a week's notice and directed that he cooperate with Waller in straightening out his work and turning data over to his successor. On Monday and Tuesday, as Waller and Saul LeVine testified, Richter and Waller conferred to this end. Saul LeVine further testified that on Tuesday evening Waller reported that he was getting, no cooperation from Richter. LeVine's testimony was that he then decided to let Richter go at once and so informed him the first thing on Wednesday morning. Wailer, although specifically questioned regarding Richter's last week of employment, voiced no complaint regarding Richter's cooperation. He gave no indication that he had knowledge of the reason for Richter's summary termination on Wednes- day,-and said nothing of the complaint on Tuesday evening which Saul LeVine ascribed to him 2' It is significant that Saul LeVine followed Waller as a witness. 28 The significant excerpts from Waller's testimony read as follows : Q. Did you see Richter after Monday? A. Oh, yes. Q. Did you see him a day or so later 9 A Yes, I saw him because I went down to find out-he was to line me up as to the status of all matters that he had been handling; there was nobody else to take it over. Q. Did you talk to him on Monday? FEDERAL ENGINEERING COMPANY, INC. 611 Questions addressed to Waller suggested that an explanation was desirable as to the sudden cutting short of the notice allegedly given to Richter. In resolving these conflicts of testimony the undersigned has remembered the handicaps resulting from the fact that Butcher's testimony was taken by deposi- tion allowing no opportunity to observe the demeanor of this witness and from the further fact that Richter was not available for rebuttal testimony. It is noted that Richter's testimony makes no mention of a notice of discharge given him, nor did he notify Buckley, with whom his relations were very close, that such notice had been given. To the contrary, Richter testified that he protested to Saul LeVine when discharged telling him "that it was peculiar that I should be suddenly considered unsatisfactory after I was found to be a union active mem- ber." There is a serious discrepancy also in Saul LeVine's testimony in that he first stated that Richter worked a few hours in then morning on Wednesday June 17, while later testifying that he notified Richter of his summary discharge at the beginning of that day. The record shows that such notice was not given until after Buckley's conversation with Saul LeVine. Buckley -testified that this occurred Wednesday afternoon. The discharge immediately, and significantly. followed that event. The undersigned finds Saul LeVine in error also, as noted above, in his testimony regarding his interview with Buckley and finds on com- paring his testimony with that of Dan LeVine that he was not completely frank in his testimony regarding respondents knowledge of Richter's UAW-CIO activi- ties. Finally, the undersigned is influenced by the discrepancies between the testimony of Waller and Saul LeVine regarding Richter's final days in respondents employ. After considering the entire record, the anti-UAW-CIO attitude manifested by the respondents and the demeanor of witnesses Buckley, Saul LeVine and Waller, the undersigned rejects the version of Richter's discharge given by Waller and Saul LeVine and accepts that found in testimony by Richter and Buckley. He is convinced and finds that Henry Richter was discriminatorily discharged, and thereafter refused reinstatement,, because of his union activity and because he joined Local 889 for the purposes of collective bargaining or other mutual aid and protection. By such discharge the respondents have discouraged membership in a labor organization and have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. C Further acts of interference,' restraint, and coercion The Board's complaint charges that "on or about May 17, 1942, when substantial interest in [Local 157] was being manifested by respondents' employees, respond- ents posted a notice announcing a raise in wage rates for the employees, and that such action amounted to interference, restraint, and coercion. Chief Shop Steward Dunham, following a suggestiong from the employee§, negotiated a 5-cent per hour general wage increase effective May 18, 1942. Notice was posted to that effect by Superintendent Johnson The first notice was found defective and was removed from the bulletin board at Dan LeVine's directon. A revised notice was posted that same day which gave Dunham credit for securing the raise. Employees were scarce at the•time and wage raises occurred at frequent intervals. The Society was the recognized representative of the employees and Dunham was A. I talked to him on Monday. Q. Did you talk to him on Tuesday? A. I talked to him on Tuesday Q. Did you talk to him on Wednesday? A. I don't know whether I saw him on Wednesday or not, but on Tuesday I talked and I don't remember about Wednesday. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chief Steward of the 'Society. Under these conditions the undersigned finds that both the granting of a wage increase and crediting Dunham with securing it, as he- in fact did , were legitimate actions. He finds no merit in this contention of the Board and will recommend that -so much of the complaint as advances it be dismissed. Gould and Schiff gave uncontroverted testimony, accepted by the undersigned, concerning an incident occurring about May 20, 1943, when they, together with employee Al Latto, approached Superintendent Johnson with a request to hold an employee meeting in the plant . Johnson told them that the request would have to be referred to the LeVines He volunteered the statement : "Why don't you keep the Union in the shop that you've got ? It's a good Union, . . . I can't find no fault with it." 20 Reichard testified , and the-undersigned credits his unrefuted statement, that on another occasion not definitely dated, Johnson said to him , Schiff and em- ployee Barnes , "You fellows want to get this straight , . . . We have a Union, here and we are going to keep it ." The employees made no reply The undersigned finds that by these statements of Superintendent Johnson to employees Gould, Schiff, Latto, Barnes, and Reichard , and by the discharge of Ralph Reichard and Henry Richter, the respondents h, *e interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring' in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondents have engaged in certain unfair labor practices, the undersigned will recommend that they cease and desist there- from and take certain affirmative action in order to effectuate the policies of the Act. ' It has been found that the respondents discharged Ralph Reichard and Henry Richter for the reason that they engaged in concerted activities or joined and assisted a labor organization for the purposes of collective bargaining or other mutual air or protection. It will be recommended that the respondents offer Ralph Reichard immediate and full reinstatement to his former or substan- tially equivalent position, without prejudice to his seniority or other rights and privileges he may have It will be further recommended that the respondents make whole Ralph Reichard for any loss of pay he may have suffered by reason of his discriminatory discharge by payment to him of a sure of money equal to, the amount he normally would have earned as wages from the date of his discharge to the date of the respondents' offer of reinstatement, less his net earnings 30 during said period. 20 This quotation is from Gould's testimony. Schiff's version was that Johnson said: "Let's cut all this controversy short. We are quite satisfied with this Union that is in the shop right now." Latto did not testify. 25 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 elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett FEDERAL ENGINEERING COMPANY, INC. 613 Inasmuch as Richter has been inducted into the military service of the United States and is,, accordingly, not available for immediate reinstatement, it will be recommended that the respondents, upon application by Richter within forty (40) clays after his discharge from the armed forces of the United States, offer him reinstatement to his former or a substantially equivalent position without preju- dice to his seniority or other rights and privileges. It will be further recommended that the respondents make Richter whale for any loss of earnings he may have suffered by reason of the respondents' discrimination against him by payment to him of a stun of money equal to the amount he would normally have earned as wages during the periods (1) between the date of his discharge by the respondents and the date of his induction and (2) between a date five (5) days after Richter's timely application for reinstatement and the date of offer of reinstatement by the respondents less his net earnings 31 during these periods, CONCLUSIONS OF LAw 1. Local 157, International Union, United Automobile, Aircraft and Agricul- tural Implement Workers of America (UAW-CIO), and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Industrial Office Workers Amalgamated Local 889 (UAW-CIO), are labor organ- izations within the meaning of Section 2 (5) of the Act. 2. Federal Engineering Company, Inc., is an employer within the meaning of Section 2 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Ralph Reichard and Henry Richter, thereby discouraging membership in a labor organ- ization, the respondents have engaged in and are engaging in unfair labor prac- tices within the meaning of Section 8 (3) of the Act. 4 By interfering with, restraining and coercing their employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 6 The respondents have not interfered with, restrained, and coerced their employees by announcing a raise in wage rates on or about May 17, 1942. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law the under- signed recommends that the respondents, Federal Engineering Company, Inc. and David M. LeVine, Saul LeVine, Dan LeVine and Lillian LeVine Waller, a copartnership doing business as the Federal Engineering Company, and their officers, agents, successors and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in any labor organization of their employees by discharging or refusing to reinstate any of their employees or by discriminating in any manner with respect to their hire or tenure of employment or any term or condition of their employment ; Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L. R . B. 440. Monies received for work performed upon Federal , State, county , municipal , or other work -relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U S. 7. 11 See footnote 29, supra. 614 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD (b) In any other manner interfering with, , restraining, or coercing their em- - ployees in the exercise of the right to self-organization , to form, join or assist ' Local 157, International Union , United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO) and International Union, United- Automobile, Aircraft and Agricultural Implement Workers of America, Indus- trial Office Workers Amalgamated Local 889 (UAW-CIO) or any other labor organization , to bargain collectively through representatives of their own choos- ing 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 effectuate the policies of the Act : (a) Offer Ralph Reichard immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights. and privileges; (b) Make whole Ralph Reichard for any loss of pay he may have suffered by reason of the respondents 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 his discharge to the date of the respond- ents' offer of reinstatement , less his net earnings 92 during said period ; (c) Make whole Henry Richter for any loss of earnings he may have suffered by reason of the respondents' discrimination against him by payment of a sum of money equal to the amount he normally would have earned as wages during. the periods (1) between the date of his discriminatory discharge by the respond- ents and the date of his induction into military service; and (2) between a date, five (5) days after Richter's timely 93 application for reinstatement and the date of respondents' offer of reinstatement , less his net earnings 94 during each of these periods ; (d) Post immediately in conspicuous places throughout their plant in Detroit, Michigan, and maintain for a period of at least sixty (60) consecutive days, notices to their employees stating: (1) that the respondents will not engage ih the conduct from which it is recommended that they cease and desist in para- graphs 1 (a) and (b) of these recommendations ; (2) that the respondents will take the affirmative action set forth in paragraph 2 (a), (b), and (c) of these recommendations ; and (ii) that the respondents ' employees are free to become and remain members of Local 157, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Industrial Office Workers Amalgamated Local 889 (UAW- CIO); or any other labor organization they may wish to join , and that the re- spondents will not discriminate against any employee because of his membership or activity in any labor organization ; (e) File with the Regional Director for the Seventh Region on or before ten (10) days from the date of the receipt of this Intermediate Report, a report in writing setting forth in detail the manner and form in which the respondents have complied with the foregoing recommendations. - It is recommended that so much of the complaint as alleges that the respond- ents interfered with , restrained, and coerced their employees by announcing a raise in wage rates on or about May 17, 1942, be dismissed. 32 See footnote 29, supra. 83 As provided in Section V of this Intermediate Report. 31 See footnote 29, supra. FEDERAL ENGINEERING COMPANY, INC. 615 It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondents notify said Regional Di- rector in writing that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondents 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 26, 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 of 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 lie relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of excep- tions 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. 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 within ten (10) days from the date of the order transferring the case to the Board. CHARLES E. PERSONS, Trial Examiner. Dated August 24, 1944.