Ames Spot Welder Co., Inc.

In the Matter of AMES SPOT WELDER CO., INC., and UNITED ELECTRI- CAL, RADIO & MACHINE WORKERS OF AMERICA, CIO Case No. 2-C-6008.-Decided November 28, 1947 Mr. Sidney Reitman, for the Board. Messrs. Zane and Lippner, by Mr. Phillip Lippner, of New York City, for the respondent. Mr. Frank Schemer, of New York City, for the Union. DECISION AND ORDER On November 14, 1946, Trial Examiner W. P. Webb issued his In- termediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the respondent had not discriminately discharged Gustav Hall as alleged in the complaint and recommended that the complaint be dismissed with respect to Hall. Thereafter, the respondent and the Union filed exceptions to the Intermediate Report; the respondent also filed a supporting brief. Oral argument, originally granted, was subsequently cancelled, at which time the parties were notified of a further opportunity to file a supplemental brief or written argu- ment, setting forth the matters which would have been covered in the oral argument. The respondent filed a supplemental brief in lieu of oral argument. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs of the respondent, the excep- tions of the Union, and the entire record in the case, and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner, 75 N L. R. B, No. 45. 352 AMES SPOT WELDER CO., INC. 353 save as they are inconsistent with our findings and conclusions herein- after set forth: 1 1. We agree with the Trial Examiner that the respondent dis- charged Joseph Luca because of his union activity in violation of Sec- tion 8 (3) of the Act. Luca, employed by the respondent since 1942, had advanced from apprentice to second-class machinist at the time of his discharge on October 11, 1945. From December 1944 to February 1945, Luca was absent from work because of illness. By permission of management, because his condition did not permit full-time work, Luca worked on a part-time basis from February 1945 to August 1945. Late in Sep- tember 1945, Luca visited the Union's headquarters and inquired about, organizing the respondent's employees. He received about 18 union application cards in the mail on or about October 1, 1945. Luca gave 5 of these to Theodore Willner, a fellow employee, and distributed 10 himself to various employees during both working and non-work- ing time. On or about October 7 or 8, Luca mailed 15 signed cards, which both lie and Willner had received, to the Union. On October 9 or 10, Union Organizer Jack Rand instructed Luca to notify his fellow employees of a union meeting to be held on the evening of October 11. According to Luca's testimony, which we credit as did the Trial Examiner, the following events immediately preceded Luca's dis- charge. On October 10, he was reprimanded on two occasions by Superintendent Stoudt. On the first occasion, Luca had just finished talking to employee Gustav Hall about a problem arising from their work and was returning to his bench when Superintendent Stoudt approached and asked Luca whether lie had enough work to do. When Luca replied that he had, Stoudt accused Luca of "talking too much to Gus." Although Luca explained that he had been speaking to Hall "about the job," Stoudt insisted that Luca was "talking too much to, Gus." The second instance occurred on the afternoon of October 10. Although Luca explained again on this occasion that he talked to, Hall about their work and offered to arrange with Hall not to speak to each other while at work in the future, Stoudt insisted that Luca "talked too much to Gus" and rejected Luca's proposal, stating "it can't be about your work all the time it must be something else you are talking about." On October 11, without any further preliminary discussion, according to Luca's testimony, which we credit as did the Trial Examiner, Stoudt approached Luca about 5:15 p. m., and i The piovisions of Section 8 (1), (3), and (5) of the National Labor Relations Act, which the Trial Examiner herein found web violated, are continued in Sections 8 (a) 1, 8 (a) 3, and 8 (a) 5 of the Labor Management Relations Act, 1947. 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD o stated : "I'm sorry to report, Joe, but we will have to let you go," and, when Luca asked for an explanation, Stoudt merely said, "unsatisfac- tory all around." 2 The respondent contends that, with the advent of the Union, Luca spent a great deal of working time on union activities, that he was reprimanded for talking too much, and that on the last day of his employment he had not completed a single switch, although, on an average, he completed about 10 switches a day. As Stoudt testified, he discharged Luca, "because he didn't turn out any work that day and the day before. I warned him time and time again, he promised to do better, but he really didn't." The record discloses, as the Trial Examiner found, that during the period immediately preceding Luca's discharge, Luca and, Hall were engaged in the manufacture of a new type of switch and therefore had to consult with each other more than usual. The record also discloses that Luca, while admitting that he did not produce a single completed switch on the last day of his employment, explained that he was required to produce switches only on order, that he had no orders for them, and that he busied himself that day making stock parts from which the switches could be assembled as needed. The respondent did not introduce any evidence controverting this explanation. Accordingly, we credit it and find, contrary to the respondent's contention, that Luca was not remiss in his duties in failing to complete switches.:' As the Trial Examiner found, the respondent had no rule which prohibited employees from talking while at work; and Luca and Hall had to consult each other regarding the new switch. Luca cred- ibly testified that, on the day of his discharge, he did not speak to other employees more than usual. Active solicitation for union mem- bership had come to an end several days earlier when Luca mailed the signed membership cards to Union Organizer Rand. Luca had spoken to no more than four or five employees about the union meeting to be held that night. While Luca had engaged in union activity in the plant during working hours, under the circumstances, we are con- vinced and find that the amount of time which he spent in talking to other employees, including such union activity, did not substan- tially differ from the amount of time, permitted previously, which 2 Stoudt's version of the events immediately preceding and leading up to the discharge, set forth in the Intermediate Report, is inconsistent with that of Luca and is not credited 3 Stoudt testified that, after Luca returned to work in February 1945, Luca had slowed down in his production and Stoudt spoke to him several times about it, but to no avail. Luca was not asked whether he had slowed down in production but he denied that Stoudt ever spoke to him about not producing enough. The Trial Examiner found that Stoudt made no complaint about Luca's work before Luca engaged in union activity. We adopt this finding. We further find that Stoudt at no time complained to Luca about the quantity of his output. AMES SPOT WELDER CO., INC. 355 Luca spent in talking to employees during working hours before the advent of the Union 4 The following facts and circumstances lead us to infer and find that the respondent had knowledge of Luca's union activity. The re- spondent's shop is small; the union solicitation was open; and it can reasonably be assumed that it came to the respondent's attention.5 Luca had solicited Acting Foreman Gray and employee Ernie Nichols, an employee who was distantly related by marriage to Superintendent Stoudt. Based on the respondent's conduct other than Luca's dis- charge, hereinafter found to be independent violations of the Act, we also find that the respondent was opposed to the Union and was resist- ing union organization of its employees. Finally, under all the circum- stances, we regard as no mere coincidence the fact that the Union's leading protagonist in the plant was discharged on the day that the first union meeting was to take place. In agreeing with the Trial Examiner that the respondent dis- charged Luca because of his union activity, we base our conclusion not only upon the findings in the Intermediate Report but also on the additional findings made herein. 2. We agree with the Trial Examiner that the respondent violated Section 8 (1) of the Act. However, we base our finding solely upon the following: (a) Stoudt's conduct in circulating a paper headed, "Do you want a union or not," which Stoudt asked employees Willner and Baltaitis to sign on October 12; (b) the respondent's questioning of Giordano as to his union membership on the same day; s and (c) the respondent's assistance in the conduct of an election on October 15 in Stoudt's office during working hours. 3. We agree with the Trial Examiner that the respondent violated Section 8 (5) of the Act by refusing to bargain collectively with the Union on and after October 12, 1945. 4 The Trial Examiner found that there had been no complaint as to Luca 's work or about his talking before his union activity and that Stoudt had complimented Luca for his ingenuity at work 2 days before his union activity . However, Luca credibly testified without contradiction that he received the compliment 2 days before his discharge. We hereby modify the Trial Examiner 's finding to accord with Luca's testimony as to the date of this occurrence and, as so modified , we adopt the Trial Examiner's findings referred to in this footnote. N L R B . V. Abbott Worsted Mills, 127 F. ( 2d) 438, 440 (C C. A 1). ° In its supplemental brief, the respondent contends that its questioning of employee Giordano as to union affiliation, referred to above in item (b ), is privileged under Section 8 (c) of the Act, as amended , because the questioning contained no threat of reprisal or force or promise of benefit . Assuming without deciding the applicability of Section 8 (c), this contention is without merit. We have previously held that employer interrogation of an employee concerning union membership is coercive , and, therefore , per se, an unfair labor practice . Matter of Sewell Mfg Co , 72 N L R. B 85, and cases cited in footnote 5 thereof We are also of the opinion that the respondent's conduct in questioning Giordano concerning his union membership was not an expression of "any views , argument, of opinion , or the dissemination thereof, " within the meaning of Section .8 (c), and thus is not protected thereby. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In its brief filed with the Board, the respondent seeks to justify its refusal to bargain by contending (a) that it had an honest doubt as to the Union's majority status; (b) that there is no proof in the record that the Union had majority status on October 12; and (c) that it is now willing to proceed to an election to determine whether the Union represents a majority of the respondent's employees. We reject these contentions. The first two contentions have no basis in fact. The record estab- lishes that at least 17 of the respondent's 25 employees in the appro- priate unit had signed authorization cards designating the Union as their representative for collective bargaining. The respondent did not question the Union's majority status at the time of the refusal to bar- gain on October 12. The respondent asserts that it would have been futile to have questioned the Union's majority status at the time of the refusal to bargain on October 12. In support thereof, it points to the testimony of Union Organizer Rand, who indicated at the hearing that he would not have shown the Union's designation cards to the respond- ent had it asked for their production. Rand testified that it is the practice of trade union representatives not to show such cards to an employer in the absence of specific authorization by the Union. Rand also indicated in his testimony that he would have been willing to sub- mit such cards for check to a Board representative. Had the respond- ent questioned the Union's majority status instead of refusing to bar- gain collectively, the parties might have agreed upon a mode of estab- lishing the Union's status to their mutual satisfaction. Under all the circumstances, we are of the opinion that the respondent did not act in good faith in refusing to bargain with the Union. The third contention referred to overlooks the fact that a free election cannot be conducted in view of the respondent's violations of the Act. Except for the secret poll conducted by the respondent on October 15, in which the Union was defeated by a vote of 14 or 15 to 7, there is no showing that the Union's majority had been dissipated. Assuming that it has, we attribute such loss of majority to the respondent's unfair labor practices; and, consequently, the re- spondent is in no position to profit as a result thereof.' In any event, for reasons set forth in Matter of Karp Metal Products Co., m o.,8 we are of the opinion that it will effectuate the policies of the Act, as amended, to require the respondent to bargain collectively with the Union. 7 Afedo Photo Supply Corp V N. L R B, 321 U S 678, N L R B v Bradford Dyeing Association, 310 U S 318, N L R B v Century Oxford Manufacturing Colp., 140 F. (2d) 541 (C C A 2), cert. den. 324 U. S. 714 851N L. R B. 621. AMES SPOT WELDER CO., INC. THE REMEDY 357 The Trial Examiner recommended, in accordance with established policy, among other measures designed to effectuate the policies of the Act, that the Board direct the respondent, upon request, to bar- gain with the Union as the exclusive representative of the employees in the unit herein found to be appropriate. However, in view of the policy which we recently adopted in illatter of Marslucil and Bruce Covnppany ° with relation to bargaining orders under the Act, as amended, we shall condition this portion of our remedial order upon compliance by the Union with Section 9 (f) , (g) , and (h) of the Act, as amended, within 30 days from the date of the Order as hereinafter set forth.10 ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the respondent, Ames Spot Welder Co., Inc., New York City, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, if and when said labor organization shall have complied, within 30 clays from the date of this Order, with Section 9 (f), (g), and (h) of the Act, as amended, as the exclusive representative of all its production and maintenance employees at its New York plant, excluding office and clerical employees, execu- tives and supervisors with respect to rates of pay, wages, hours of employment, or other conditions of employment; (b) Discouraging membership in United Electrical, Radio & Ma- chine Workers of America, affiliated with the Congress of Indus- trial Organizations, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or by dis- criminating in any other manner in regard to their hire and tenure of employment, or any term or condition of employment; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Indus- 9 75 N L R B 90 , decided October 24, 1947 10 As to what constitutes compliance in this respect, see Matter of Northern l7eigsnia Broadcasters, Inc, 75 N L R B 11, decided October 7, 1947 766972-48-vol. 75-24 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trial Organizations, 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) Upon request, and upon compliance by the Union with the filing requirements of the Act, as amended, in the manner set forth above, bargain collectively with United Electrical, Radio & Machine Workers of America, of ijated with the Congress of Industrial Organi- zations, as the exclusive representative of all its employees in the af ore- said appropriate unit, with respect to rates of pay, hours of employ- ment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement; (b) Offer Joseph Luca immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges; (c) Make whole Joseph Luca for any loss of pay that he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he would normally have earned as wages during the period from October 11, 1945, the date on which he was discharged, to the date of the respondent's offer of reinstatement, less his net earnings, during such period ; (d) Post at its plant at 1328 58th Street, City of New York, Borough of Brooklyn, State of New York, copies of the notice attached hereto, marked "Appendix A." 11 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by a representative of the respondent, be posted by the respondent immediately upon receipt thereof and maintained by it for thirty (30) consecutive days thereafter and also for an additional thirty (30) consecutive days in the event of compliance by the Union with the filing requirements of the Act, as amended, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; 11 In the event that this Order is enforced by decree of a Circuit Court of Appeals, there shall be inserted before the words , "A Decision and Order ," the words, "A Decree of the United States Circuit Court of Appeals enforcing." AMES SPOT WELDER CO., INC. 359 (e) Notify the Regional Director for the Second Region in writ- ing, within ten (10) days from the date of this Order, and again within ten (10) days from the future date, if any, on which the respondent is officially notified that the Union has' met the condition hereinabove set forth, what steps the respondent has taken to comply herewith. 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 Gustav Hall, be, and it hereby is, dismissed. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. 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 the right to self-organization, to form labor organizations, to join or assist UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, 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 protec- ton ; WE WILL OFFER to the employee named below immediate and full reinstatement to his former or substantially equivalent posi- tion without prejudice to any seniority or other rights and privi- leges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination; 1 WE WILL BARGAIN collectively upon request with the above- named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement; provided said labor organization complies within thirty (30) days from the date of the aforesaid Order of the Board, with Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended. The bargaining unit is: All produc- Joseph Luca. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion and maintenance employees of the respondent employed at its plant in the Borough of Brooklyn, New York, New York, excluding office and clerical employees, executives and super- visors. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not dis- criminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of member- ship in or activity on behalf of any such labor organization. AMES SPOT WELDER CO., INC. By ------------------------------ (Repiesentative) (Title) Dated-------------------- This notice must remain posted for 30 days from the date hereof and also for an additional 30 days in the event of compliance by the Union with the requirements of Section 9 (f), (g), and (h) of the Act as amended. This notice must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Sidney Reitman, for the Board Messrs . Zane and Ltppner, by Mr. Phillip Lippner, of New York , N Y, for the respondent. Dir. F'anh Scheanc7 , of New York , N. Y., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed by United Electrical, Radio & Machine Workers of America, CIO, herein called the Union, the National Labor Rela- tions Board, herein called the Board, by the Regional Director for the Second Region (New York, New York), issued its complaint, dated September 19, 1946, against Ames Spot Welder Co, Inc, New York, New York, herein called the llespondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) 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 charge, accompanied by notice of hearing thereon, were duly served upon the Respondent and the Union With respect to the unfair labor practices, the complaint, as amended at the hearing, alleged in substance: (1) that the Respondent discharged Joseph Luca on or about October 11, 1945, and Gustav Hall on or about October 12, 1945, and thereafter refused to reinstate them, or either of them, for the reason that they joined or assisted the Union or engaged in concerted activities for the pur- pose of collective baigaming or other mutual aid or protection; (2) that on or about October 12, 1945, and at all times thereafter, the Respondent refused, upon request, to to bargain collectively with the Union as the exclusive representative of all its employees in an appropriate unit, although on that date, a majority of AMES SPOT WELDER CO., INC. 361 such employees had selected and designated the Union as their representative for the purpose of collective bargaining, (3) that on or about October 12, 1945, and thereafter, the Respondent disparaged and expressed disapproval of the Union ; interrogated its employees concerning their union affiliations; and urged, per- suaded, and warned them to refrain from joining or assisting the Union, and threatened them with reprisals if they should do so; and (4) that by such acts and statements, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On September 26, 1946, the Respondent filed its answer, admitting certain allegations of the complaint with respect to its corporate existence and the nature of its business ; that it discharged Joseph Luca on or about the date alleged in the complaint and thereafter refused to reinstate him; that on, and at all tines after, October 12, 1945, it refused, upon request, to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit ; and that it interrogated its employees as to whether or not they desired a union to represent them for the purpose of collective bargaining; and that it assisted its employees in conducting an election for the purpose of deteiniining that question ; but denying that it discharged Gustav Hall and also denying that it had engaged in or was engaging in any unfair labor practices, within the meaning of the Act. As an affirmative defense, the Respondent avers that it is ready and willing to par ticipate in an election conducted by the Board to determine whether or not a majority of its employees desires the Union to represent them for the purpose of collective bargaining. Pursuant to notice, a hearing was held at New York, New York, on October 7 and 8, 194(1, before the undersigned, W P Webb, the Trial Examiner duly desig- nated by the Chief Trial Examiner. All of the parties were represented by counsel and 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. A motion by board's counsel to amend the complaint in order to correct a typo- graphical error, and to reduce the alleged percentage of raw materials trans- ported to the plant from outside New York, was granted by the Trial Examiner without objection. At the conclusion of the Board's case-in-chief, counsel for the Respondent moved to dismiss the complaint in its entirety. The motion was denied by the Trial Examiner. The motion was renewed at the conclusion of the hearing Ruling thereon was reserved by the Trial Examiner. The motion is herewith denied by the undersigned. At the conclusion of the hearing a motion by Board's counsel to conform the pleadings to the proof with respect to formal matters was granted by the Trial Examiner without objection. The parties waived the privilege of filing briefs with the Trial Examiner Counsel for the Board and the Respondent argued orally, on the record, before the Trial Examiner, at the conclusion of the hearing. Upon the entire record in the case and frown his observation of the witnesses, the undersigned makes the following. FINDINGS or FACT I THE BUSINESS OF TILE RESPONDENT The Respondent, Ames Spot Welder Co, Inc, is a New York corporation, having its principal office and place of business at 1328 58th Street, borough of Brooklyn, New York, New Yom k, where it is engaged in the manufacture and sale of resistance 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD welding equipment and related products. The principal raw materials used at the plant are steel, copper, and electrical parts. During the year 1945, the Re- spondent purchased, for use at the plant, raw materials valued in excess of $50,000, of which approximately 20 percent was transported to the plant from points outside New York. During the same period the Respondent manufac- tured finished products at the plant valued in excess of $100,000, of which approxi- mately 50 percent was transported to points outside New York. The Respondent concedes that it is engaged in commerce, within the meaning of the Act, and the undersigned so finds. The Respondent normally employs approximately 25 employees in the plant. IT. THE ORGANIZATION INVOLVED United Electrical, Radio & Machine Workers of America, CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. Sequence of events During the latter part of September 1945, employee Joseph Luca went to the Union Hall, in company with employee Teddy Wilner, and had a conversation with Jack Rand, the Union organizer, in regard to organizing the Respondent's employees. As a result of that meeting, Rand sent Luca, by mail to his home, approximately 18 blank application cards for membership in the Union, which Luca received on October 1, 1945. Luca signed one card and gave some of them to Wilner. The remainder lie distributed to the other employees. He told them to return the cards to him after they had signed them. The cards were distributed by Luca in the plant during working time and at lunch time. Later he went around to the different employees and gathered up the cards. Some were brought to him. Approximately 10 signed cards were returned to him. While distributing -the cards, Luca offered one to Charles Grey, acting foreman, also one to employee Ernie Nichols, father-in-law of Foreman Harry Manning Manning is Superin- tendent Bernard Stoudt's stepson. Neither of them signed the card. Employee Wilner secured-signatures to 5 union cards, which he turned over to Luca. On October 7 or 8 Luca sent the 15 signed cards to the Union Hall by mail. On October 9 or 10, Organizer Rand instructed Luca to notify the employees that a union meeting for the Respondent's employees would be held Thursday evening, October 11. Luca promptly passed the information around the plant.' 2. The discriminatory discharge of Joseph Luca Luca was first employed by the Respondent in 1942 as an apprentice machinist at 35 cents an hour He continued in the employ of the Respondent until he was discharged on October 11, 1945, at which time he was a second class machinist and his rate of pay was $1.05 an hour. In the early part of 1944, Luca asked the Respondent for a release, as he had secured a better job elsewhere. His request was refused. He was told by Stoudt, the plant superintendent, that he had a better future with the Respondent and that he would be given an increase in wages of 5 cents an hour every 2 months if he would stay with the Respondent. Luca agreed to stay. In December 1944 he became ill with an infected throat ' These findings are based upon the credited and undenied testimony of Luca and Rand. AMES SPOT WELDER CO., INC. 363 and rheumatism, which lasted approximately 3 months, during which time he did-no work. According to Luca, after he had been ill about 6 weeks, George Cohen, the Respondent' s salesman, and a brother of David Cohen, the Respond- ent's secretary, came to his home and inquired how he was getting along, and upon leaving, told Luca to come back to work as soon as he was physically able. After another week or two, George Cohen went to Luca's home again, but he did not see Luca. In the latter part of February 1945, George Cohen again went to see Luca at the latter's home On that occasion he told Luca that the Respondent had hired some new employees who had been put on the same type of work that Luca had been doing, and if possible, he would like for Luca to come back to the plant and show the new employees how to do the work, even if he could stay only an hour or two. Luca replied that he was still under the doctor's care, but he would return to work as soon as possible. About 3 weeks after that Luca returned to work in the plant, but for a time, he only worked 2 or 3 days a week. In the latter part of August he had a conversation with Superintendent Stoudt about his wage increase which was then due. He was told by Stoudt that he, Stoudt, had been criticized by an executive of the Re- spondent for giving Luca his regular increases during the latter's illness, and that the increases would begin again as soon as Luca began to work full time. Luca began working full time about the last week in August 1945 z On October 10, the day before the aforesaid Union meeting, Luca had two con- versations with Superintendent Stoudt. Luca's testimony in this connection, which is credited by the undersigned, reads as follows : "Well, I had just finished talking to Gus Hall a Gus Hall was at his bench, and there was a bench between our benches, and he had a jig there that he was making for this new type switch and I was talking to him and I just got through and I walked over to my bench when Mr. Stoudt came over, I believe he was watching us, and he says, `Haven't you got enough work to do?' I says, `yes'. He says, `Well, I think you are talking too much to Gus.' I says, "Well, I was speaking to him about the job.' He says, `Well, I think you are talking too much to Gus,' and that's the way it ended . . . Towards the afternoon . . It was in the new building that they were constructing. I was walking over to the new building and he [Stoudt] called me over, and I says to him, You don't think I was hanging around there, do you? He says, `No, I don't think you were hanging around, but I see that you have been talking too much to Gus.' So I says, `Well, perhaps I talked to Gus three times in one day and Gus would come over and talk to me twice, so that makes five times altogether.' I asked him, `If you prefer, I will just tell Gus not to speak to me and we will leave it that way' He says, `No, don't tell Gus anything like that,' he says, 'I still think you are talking too much to Gus. It can't be about your work all the time. It must be something else you are talking about.' I says, 'No, it's the work,' and that's the way the conversation ended, as far as that went . . . he says that the shop slowed down, that they had this new building, that they were going to construct the benches facing the walls so that the men won't have anything to distract them and he can walk and stand in the middle of the floor and see what everyone is doing, and that they are going to have time cards and a bell for starting time and a bell for quitting time." 2 These findings are based upon the testimony of Luca, which is credited by the undersigned 8 Hall vountarily quit his job in the plant on October 12, 1945. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next day, October 11, 1945, at about 5: 15 p. m, Luca was summarily dis- charged by Superintendent Stoudt. Luca's credited testimony in this connection reads as follows : "Oh, Mr. Stoudt came over to me and said, `I am sorry to report, Joe, but we will have to let you go,' and he started to leave, walk away, so I says, `Well, there must be some kind of reason. You can't be just letting me go. You must have something on your mind, something specific.' Well, he says, `Unsatisfactory all around' I says, `Well, unsatisfactory all around doesn't mean anything to me. Just what is it?' He says, `Unsatisfactory all around,' and that's the way he left it, and he just walked away." Superintendent Stoudt testified that at about 5 p in , on October 11, 1945, he found Luca "in a huddle with other employees" and he said to hum, "Joe, I am sorry but I will have to let you go." Luca asked him why he was dis- charging him, and Stoudt replied, "Because I told you enough, and I am totally dissatisfied with the response." Stoudt further testified that the reason he discharged Luca was "Because he didn't tui n out any work that day and the day before I warned him time and time again. he promised to do better, but he really didn't." Stoudt further testified that after Luca came back to work in the latter part of August, he did not turn out as much work as he had done prior to his illness, and that on one occasion Luca complained to him that his work was "boring," and requested that he be given another job so that he could learn something. According to Stoudt, on the morning of the day that Luca was discharged, he found him talking to employee Hall, and he told him to stop it and go back to work; and that Luca replied that he was talking to Hall about the work. Luca testified that Stoudt had not pi eviously complained about his woik or his talking to other employees Stoudt testified that there was no rule in the plant against talking during working time, and that it was the practice of the employees to talk to each other while working, and that lie did not object to it. On October 12, the (lay after his discharge, Luca went to the plant office with Rand, the union organizer, where they niet David Cohen, the Respondent's secretary. Rand gave Cohen his business card and told him that a majority of the Respondent's employees had signed union authorization cards and requested that the Respondent recognize the Union and bargain with it Rand also requested the Respondent to reinstate Luca Lucas's testimony, in this respect, reads as follows: "And he [Rand] told Dave Cohen be represented the union and that a ma,loiity of the men had signed up with the union and that he had told Dave that I was fired and I believed it was for union activities, and he said lie would like to have them rehire me again. Dave Cohen replied, he says, `No.' he sad s, `He has a bench in the back then e and doesn't do any work He just doesn't do anything We don't intend to take him back. We don't want him here.' Then at the time Jack Rand asked him, he says, `Would you be willing then, to negotiate with the union`a' And his reply was `No,' he says, `I will have nothing to do with you or the union \Ir. Rand says, `Well, then 1 will have to take it up with the National Labor Relations Board.'" Concluding findings The record shows and the undersigned finds that there was no rule or regula- tion in* the plant prohibiting employees from talking to each other during AMES SPOT WELDER CO., INC. 365 working time; that at the time of Luca's discharge, he and Hall were working together on parts for a new switch and it was necessary for them to talk about the work to each other; that prior to Luca's union activity, Superintendent Stoudt had made no complaint about Luca's work or his talking to other em- ployees ; that about 2 clays prior to his union activity, Luca was complimented by Superintendent Stoudt for his ingenuity in developing a fixture for grinding tumblers; and that the Respondent's reasons for discharging Luca were "trivial and fanciful " Luca was responsible for the Union conning into the plant, and he was the outstanding figure in the Union's organizational campaign Upon the entire record in the case, the undersigned concludes and finds that the Respondent discharged Joseph Luca on October 11, 1945, and thereafter refused to reinstate him for the reason that he joined and assisted the Union and engaged in concerted activities with other employees of the Respondent for the purpose of collective bargaining or other mutual aid or protection, and that the Respondent thereby discriminated in regard to his hire and tenure of employment, discouraged membership in the Union, and interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 3. The alleged discriminatory discharge of Gustav Hall Gustav Hall was first employed by the Respondent in 1934 He was hired by Superintendent Stoudt as a machinist at 55 or 60 cents an hour. He was laid off once during 1934, but later returned to work in the plant. In 1944 he made two requests of the Respondent for a release. He was refused both times He joined the Union on October 3, 1945. On October 12, 1945, Hall voluntarily quit his job with the Respondent At that time he was senior in point of service to all of the other employees in the plant, except John Fummerfrieddo, a machinist. According to Hall, during the morning of Friday, October 12, 1945, lie was in- structed by Superintendent Stoudt to report at the plant office. When he arrived there he found David Cohen and Stoudt in the office Stoudt asked him what his grievances were and why he was not satisfied. Hall replied that he would not say anything unless he had two witnesses from the shop present He then started to leave the office, but was called back by Cohen, who told him not to be "hotheaded " He went back into the office and Cohen asked him what his grievances were. He gave the same reply-that he would not talk except in the presence of two witnesses from the shop Then Cohen said to him, "Take your things and go." Hall then got his tools and left the plant Later that day, Hall telephoned to the plant and asked Superintendent Stoudt if he would give bull a letter of recommendation. Stoudt replied in the affirmative, and Hall requested that it be mailed to him About a week later, not having received the letter of recommendation, Hall telephoned to David Cohen and inquired about it Cohen told him that he would not "put anything in writing, but if anybody calls up he is going to tell them." According to the credited testimony of David Cohen, on Friday, October 12, 1945, employee Gustav Hall was called into Stoudt's office and the latter asked him if he had any grievances and Hall replied, "I'm not talking in front of spies." Stoudt then said to Hall, "You have been working here a long time. If there is anything wrong we would like to know." Hall replied "daunt, I'm not talking in fi out of spies." Cohen then told Hall "to get out of the office." Cohen denied that he discharged Hall. He also denied having said to Hall, "Take your tools and go." The record shows and the undersigned finds that Superintendent Stoudt 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did all of the hiring and discharging of employees in the Respondent's shop. Cohen had never discharged an employee since Stoudt had been Superintendent. Cohen further testified without contradiction that he had always been very friendly with Hall and had given him advice and assistance in connection with the purchase and maintenance of some real estate in Pennsylvania. The under- signed 'was not favorably impressed with the accuracy of Hall's testimony. Therefore the undersigned credits the testimony of Cohen in respect to what he said to Hall on that occasion, and finds that Cohen did not tell Hall to "take his tools and go," but that he told Hall "to get out of the office." Superintendent Stoudt testified that on October 12, 1945, David Cohen informed him that a representative of the Union, accompanied by Luca, had called at the office and informed him that a majority of the employees had joined the Union ; that he, Stoudt, suggested that Hall be called into the office and questioned, as he was one of the senior employees in the plant ; that he sent for Hall and when he arrived, he said to him, "Gus, we got information that you fellows here want a union. Do you mind explaining what is the reasons that you or the fellows have any grievances?"; that Hall replied, "I ain't talking in front of spies" ; that Stoudt again said to Hall "Would you .mind telling us if you have any grievances?"; that Hall said, "I am not talking. I need three witnesses" ; that Cohen then said to Hall, "Oh, get out of here"; that Hall then left the office and Stoudt followed him into the shop and said to him, "Gus, would you talk to me in front of some fellows from the shop? I think that is better" ; that Hall replied, "I ain't talking to you" ; and that Hall then left the plant. Stoudt denied that Cohen told Hall to take his tools and get out. Stoudt further testified that Hall had previously quit his job in the plant on three different occasions. He would leave the plant in a "huff" and after 2 or 3 weeks would come back and the Respondent would put him back to work. Concluding findings On cross-examination, Hall testified that he did not engage in any union activity, except that he signed an application card for membership in the Union. Later in his testimony, he stated that he had talked to some of the employees about the Union. He was asked the question, "Did you talk to them after you had signed this card?" His answer was "I might, I don't know. I know I talked to somebody." The record is clear and the undersigned finds that Hall joined the Union on October 3, but he was not active on behalf of the Union. Hall admitted that at the time he quit his job, he had no grievances against the Re- spondent, and when asked why he did not tell Cohen and Stoudt that he had no grievances, he answered, "I preferred not to talk to them alone " Hall did not explain why he refused to talk to Cohen and Stoudt. Hall admitted that he had previously quit his job in the plant at least three times. Hall further testified that he did not think that Stoudt knew he had signed the union card prior to the time that lie quit the plant, and, so far as lie knew, Cohen did not know it either. Hall admitted that he did not request reinstatement in the plant and that, so far as he knew, the Union made no effort to get him reinstated. Upon the entire record in the case, the undersigned finds that Gustav Hall was not discharged by the Respondent as alleged in the complaint, but that he quit his employment with the Respondent on October 12, 1945, of his own free will and accord Therefore, the Respondent has not discriminated against him in regard to his hire and tenure of employment, within the meaning of the Act. AMES SPOT WELDER CO., INC. 367 4. Other acts of interference, restraint, and coercion On October 12, 1945, employee Anthony Giordano had a conversation with David Cohen and Superintendent Stoudt in the latter's office at 10 a. in. He was called in by Stoudt. The latter asked him if he had joined the Union and what his grievances were Giordano told them that the employees joined the Union in order to get union security-job security, and pay for holidays and vacations. The conversation lasted about 21/.2 hours. The discussion cen- tered around whether the employees in a small plant, where the supervisors know them personally, would be better off with or without a union. Cohen showed Giordano one of the Company's books which indicated that the Respondent had borrowed some money. During the discussion on pay for holidays and vacations, either Cohen or Stoudt said, according to Giordano, "Just because of those two things you put a union in here and you work 40 hours a week because that is what the union contract would stipulate, and you lose more money than you gain on holidays and vacation" Giordano told Cohen and Stoudt that the Union had held a meeting of the Respondent's employees on the night before. Giordano testified that he may have told Cohen and Stoudt on that occasion, that the Union representative had reported to the meeting that 17 of the Respondent's employees had joined the Union. Cohen or Stoudt told Giordano that if they had a union in the plant, the employees would be paid according to the wage scale agreed upon in the contract, but if there was no union, they would be paid on the basis of merit. Giordano suggested that an election be held in the plant under the supervision of the Board. During the discussion, either Cohen or Stoudt said to Giordano, "If you are good you don't need a union to protect you, and if you are no good, you don't deserve to work."' According to the undenied testimony of Theodore Willner, on Friday, October 12, 1945, he had a conversation with Superintendent Stoudt in the plant, in which the latter requested him to sign a paper which was captioned "Do you want a union or not?" Willner looked at the paper and found that most of the signatures were under the "No" column, which meant that they did not want a union. Stoudt told him on that occasion that if the Union came into the plant the workweek would be cut down from 55 hours to 40. Antanas Baltaitis testified that about 10. 30 a in. on Saturday, October 13, 1945, while he was at work in the plant, Superintendent Stoudt came up to him and said, "Mr. Baltaitis, as a free American citizen will you sign this paper?" Stoudt had a sheet of paper in his hand. Baltaitis replied, "As a free American citizen I have a right to refuse to sign." Stoudt told Baltaitis that he wanted to protect the employees. Baltaitis' testimony in this connection, which is credited by the undersigned, reads as follows : "Well, he [Stoudt] said, you know, `You don't know what is going on in the office,',he said, `This union mess, you know, these union men lie like hell, but you don't know it,' and he said, `Don't you think you would have a lot more gain if you talked to me instead of to somebody else that was fighting for you . . . Then he said-what else he said-yes, he said, `A good man don't need no union,' lie said, `A good man, you know, he protects himself. It is only a bum, loafers, that's the one that needs unions . . ." Well, he wants me to sign the paper and I told him I refuse to sign, I am not going to sign. This is the Government' s business. The Government grants the election. Then if the majority wants the union I will belong to 4 These findings are based upon the credited and undenied testimony of Giordano. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the majority. When Mr. Stoudt said to me, `You know, that not be right. You haven't got no choice. Don't be no durnrny. We want to protect every- body.' . . . He told me, he said, you know, `You have to sign to find out if the union have a majority.' He said, `You know, we not fire you if you sign for the union.'" According to the credited and undenied testimony of Giordano, on Monday, October 15, 1945, Superintendent Stoudt requested him to hold an election in the plant to determine whether the employees desired the Union to represent them for the purpose of collective bargaining. Giordano was at work when Stoudt made the request The election was held at about 10 a in , on October 15, 1945. Giordano went to the plant office and received the typewritten votes. All of the employees were told to stop work and come to Stoudt's office. As they arrived, each was given a blank ballot and told to go into Stoudt's office, which was vacant, and mark it either for or against the Union. A table and pencil for that purpose had been provided in Stoudt's office. Emplo} ee I'iuminerfrieddo, a machinist, stood just outside of Stoudt's office with the ballot box, which was obtained from Stoudt's office, and received the ballots After the election was over, Giordano and Fiumnierfrieddo took the ballot box into another office and counted the ballots. The result was approximately 14 against and 7 for the Union. On or about a month after the election, Giordano was promoted to assistant foreman. In March 1946, lie became foreman in the plant.' David Cohen, the Respondent's secretary, admitted that he gave his consent for an election to be held in the plant on October 15, 1945, in order to determine whether the employees were for or against the Union; that his office girl typed about 60 ballots which were given to Giordano and Fiummerfrieddo; and that the election was held in the plant during working hours. The undersigned concludes and finds from the entire record in the case that, by interrogating its employees with respect to their union affiliation, threatening to reduce the weekly working hours if the Union came into the plant, requesting its employees to sign a statement as to whether or not they desired the Union to represent them, assisting in the holding of an election in the plant in order to determine whether or not the employees desired the Union to represent them for the purpose of collective bargaining and by other acts and statements of Secretary Cohen and Superintendent Stoudt, the Respondent interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The refiisal to bargain collectively 1 The appropriate unit The complaint alleges, the Respondent admits, and the undersigned finds, that all production and maintenance employees of the Respondent employed at its plant in Brooklyn, New York, excluding office and clerical employees, executives and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, at all times material herein constituted, and now constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act. This testimony of Giordano was corroborated by witness Baltaitis. AMES SPOT WELDER CO., INC. 369 2. Representation by the Union of a majority in the appropriate unit The record discloses and the undersigned finds that evidence adduced at the hearing in respect to the Respondent's pay roll for the week ending October 10, 1945, shows that there were 25 employees in the plant within the aforesaid appropriate unit. The record further shows and the undersigned finds that on October 12, 1945, 17 of these employees had signed cards authorizing the Union to represent them for the purpose of collective bargaining. Therefore, the under- signed finds that the Union was On October 12, 1945, and at all times thereafter has been, the duly designated representative of a majority of the Respondent's employees in the aforesaid appropriate unit and that, by virtue of Section 9 (a) of the Act, the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. 3. The refusal to bargain on October 12, 1945, and thereafter According to the credited testimony of Jack Rand, the Union organizer, on or about October 1, 1945, he received 15 signed union cards by mail from employee Luca. Rand attended the Union meeting on October 11, 1945, and according to his testimony there were about 14 employees present. At that meeting it was decided that Rand, in company with Luca who had been discharged that morn- ing. would interview David Cohen, the Respondent's secretary, for the purpose of bargaining with the Respondent for the maintenance and production em- ployees and also for the purpose of securing the reinstatement of Luca. There- fore, on the next day, October 12, 1945, Rand and Luca had a conference with David Cohen at the plant. At that meeting Rand gave Cohen his business card and told him that the Union represented a majority of the employees and re- quested Cohen to bargain with the Union Also Rand requested that Luca be reinstated Cohen stated that Luca had been discharged for inefficiency and, as to bargaining with the Union, Cohen said to Rand, "I won't have anything to do with you or the Union " Rand repeated his request that the Respondent bargain with the Union and reinstate Luca. Cohen refused to make any further reply to these requests. Whereupon Rand said to him, "Well, if you refuse to answer me, you refuse to make a date for a conference, you refuse to reinstate Mr. Luca, I will have to turn this over to the National Labor Relations Board," Rand and Luca then left the plant. At no time during that meeting did Cohen raise the question as to the Union's majority and neither (lid he request any evidence that the Union represented a majority of the employees At that time Rand had with him the membei ship cards which had already been signed, but they were not shown to Cohen as he remade no request to see them. Cohen (lid not question the authority of Rand to speak for the Union and nothing was said by either party at that meeting with respect to an election. On that same day, October 12, 1945, Rand, on behalf of the Union, wrote the Respondent the following letter : OcrroBER 12, 1945. THE AMES SPOT WELDER CO, lire, 1328 58th Street, Brooklyn,, New York Attention: Mr David Cohen DEAR SiR: The majority of the employees of The Ames Spot Welder Co., Inc, have joined Local 475, United Electrical, Radio and Machine Workers of America, CIO, and has designated the union as its collective bargaining 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agent to negotiate and conclude all agreements as to hours of labor, wages and all other conditions of employment. On the morning of October 12th I saw you personally in your office and requested of you whether you are ready to negotiate with the Union. You categorically stated, 'No.' However, we are writing you this official letter requesting an appointment for collective bargaining purposes in the interest, of harmonious relations in the shop Yours very truly, (sgd) JACK RAND, Business Representative. JR/al uopwa 1/25 Reg. On October 16, 1945, the Respondent wrote the following letter to the Union in reply to the Union's letter : OCTOBER 16, 1945. AMALGAMATED MACHINE & INSTRUMENT LOCAS, #475, 80 Willoughby Street, Brooklyn, New York. Attention of Dir. Jack Rand GENTLEMEN : Your letter of October 12th addressed to the attention of the writer received and this will be turned over to our Board of Directors at their next meeting. Yours very truly, Am-Es SPOT WELDER CO, INC., DAVID J. COHEN, Secy. DJC/vm The record shows and the undersigned finds that subsequent to the above letter the Union received no further communication from the Respondent and no further effort was made by the Union to bargain with the Respondent. On October 15, 1945, the Union filed charges against the Respondent. Concluding findings The affirmative defense for its refusal to bargain with the Union, as set out in the Respondent's answer, states that, "The Respondent still stands ready and willing to proceed to an election under the auspices of the National Labor Rela- tions Board so that once and for all it may be deteimined whether or not the Union represents a majority of the employees of the Respondent." This contention comes too late If at the time the Union requested recognition, the Respondent on the basis of a reasonable doubt as to the Union's majority, had proposed an election, a different problem would be presented here. But, as has been seen, the Respondent at that time raised no question of the Union's majority and the Union therefore was under no duty to furnish proof that it did in fact represent a majority! The Union would retain its status of statutory bargaining representative even though its actual majority has since been dissipated due to the Respondent's unfair labor practices, and therefore an election if now held would not be determinative of the issue! The undersigned accordingly finds that the Respondent on and since October 12, 1945, has refused to bargain collec- 6 N. L R. B. v. Remington Rand, Inc, 94 F. (2d) 862, 868 (C. C A 2). 7 N. L. R B v. Bradford Dyeing Association, 310 U S 318 AMES SPOT WELDER CO., INC. 371 tively with the Union within the meaning of Section 8 (5) of the Act and by the said refusal has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The complaint alleges, the respondent admits, and the undersigned finds that on October 12, 1945, and at all times thereafter, the Respondent refused to bargain collectively with the Union as the exclusive representative of its em- ployees in an appropriate unit, in respect to rates of pay, wages, hours of em- ployment, or other conditions of employment. The Respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section 111, 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 Respondent has engaged in certain unfair labor prac- tices within the meaning of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action which the undersigned finds will effectuate the policies of the Act. It has been found that the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in the aforesaid appro- priate unit. It will therefore be recommended that the Respondent, upon request, bargain collectively with the Union as the exclusive representative of all its employees within said unit. It has been found that the Respondent discharged and thereafter refused to reinstate Joseph Luca for the reason that he joined and assisted a labor organi- zation and engaged in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection. It will therefore be recommended that the Respondent offer him immediate and full reinstatement to his former or substantially equivalent position e without prejudice to his seniority or other rights and privileges. It will be further recommended that the Respondent make him whole for any loss of pay lie may have suffered by reason of his discrimina- tory discharge, by payment to him of a sum of money equal to the amount he would normally have earned as wages during the period from October 11, 1945, to the date of the Respondent's offer of reinstatement, less his net earnings' during such period. In accordance with the Board 's consistent interpretation of the term , the expression "former or substantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer in existence , then to a substantially equivalent position " See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N L. R. B. 827. 0 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 not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company, 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. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that the Respondent has engaged in conduct violative of Sec- tion 8 (1), (3), and (5) of the Act, the undersigned will recommend that the Respondent cease and desist not only from engaging in such conduct but also from in any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the i ights guaranteed in Section 7 of the Act, for the following reasons: The Respondent's whole course of conduct discloses a definite purpose to defeat self-organization among its employees, as has been found by the undersigned Since the inception of the Union in the Respondent's plant, the Respondent has interfered with, restrained and coerced its employees by various acts and statements. -Moreover, the discriminatory discharge of Luca "goes to the very heart of the Act X10 Because of the Respondent's un- lawful conduct and its underlyi ng purposes, the undersigned is convinced that the unfair labor practices found are per suasively related to other unfair labor practices presci ibed by the Act and that danger of their commission in the future is to be anticipated from the Respondent s conduct in the past.' The pre- ventive purpose of the Act will be thwarted unless the remedy is coextensive with the threat In order, therefore, to make more effective the iiitei dependent guarantees of Section 7 of the Act, to prevent recurrence of unfair labor prac- tices, and to minimize industrial strife winch burdens and obstructs commerce and thus effectuate the policies of the Act, the undersigned will recommend that the Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act Upon the basis of the foiegoing findings of. fact and the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1 United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees of the Respondent employed at its Brooklyn, New York, plant, excluding office and clerical employees, executives and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, at all times material herein constituted and now constitute a unit appropriate for the purpose of collective ba i gaining, within the meaning of Section 9 (b) of the Act 3 United Electrical, Radio & Machine Workers of America, CIO, was on October 12, 1945, and at all tines thereafter has been, the exclusive representative of all the employees in the atoresaid unit for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act 4. By refusing on October 12, 1945, and at all times thereafter, to bargain collectively with United Electrical, Radio & Machine Workers of America, CIO, as the exclusive representative of all its employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act 'ON. L R. B v Entwistle jiffy Co , 120 F (2d) 532, 536 (C C A 4) , See also N. L R. B v Automotive Maintenance Machinery Co, 116 F (2d) 350 (C C A 7), where the Circuit Couit of Appeals for the Seventh Circuit observed "no more effective form of intimidation, nor one come violative of the N L R B Act can be conceived than the discharge of an employee because he joined a union . ii See N L R B. v Empress Publishing Company, 312 U S 426. AMES SPOT WELDER CO., INC. 373 5. By discriminating in regard to the hire and tenure of employment of Joseph Luca, thereby discouraging membership in United Electrical, Radio & Machine Workers of America, CIO, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. 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 unlair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. S. The Respondent has not discriminated against Gustav Hall in respect to his hire and tenure of employment or any term or condition of employment, within the meaning of Section 8 (3) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the Respondent, Ames Spot Welder Co, Inc, New York, New York, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively -,vitli United Electrical, Radio & Machine Workers of America, afliated with the Congress of Industrial Organizations, as the exclusive representative of all its employees in the aforesaid appropriate unit, with respect to rates of pay. wages, Hours of employment, or other conditions of employment ; (b) Discouraging membership in United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, or any other labor organization of its employees by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire and tenure of employment, or any term or condition of employment; (c) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights of self-organization, to form labor organi- zations, to join or assist United Electrical Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in conceited 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 ef- fectuate the policies of the Act: (a) Upon request, bargain collectively with United Electrical, Radio & Machine Woi leers of America, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all its production and maintenance em- ployees at its New York plant excluding office and clerical employees, executives and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, with respect to rates of pay, wages, hours of employment or other conditions of employment, and if an understanding is reached, embody such un- derstanding in a signed agreement; (b) Offer Joseph Luca immediate and full reinstatement to his former or sub- stantially equil alent position l2 without prejudice to his seniority or other rights and privileges ; 11 See footnote 8, supra. 766972-48-vol. 75-25 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Make whole Joseph Luca 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 the amount which he would normally have earned as wages dur- ing the period from October 11 , 1945, the date on which he was discharged, to the date of the Respondent 's offer of reinstatement, less his net earnings 13 during such period ; (d) Post at its plant at 1328 58th Street, City of New York, Borough of Brook- lyn, State of New York, copies of the notice attached hereto marked "Appendix A." Copies of said notice , to be furnished by the Regional Director for the Second Region, shall, after being duly signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty ( 60) consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material ; (e) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of receipt of this Intermediate Report, what steps the Respondent has taken to comply with the foregoing recommendations. 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. It is further recommended that the complaint , insofar as it alleges that the Respondent discriminated in regard to the hire and tenure of employment of Gustav Hall , be dismissed. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen ( 15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 38 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C, an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections ) as he relies upon, together with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period , file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs , 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 . Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 65. As further provided in said Section 203.39, 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 service of the order transferring the case to the Board. W. P. WEBB, Trial Examiner. Dated November 14, 1946. 13 See footnote 9, siipra AMES SPOT WELDER CO., INC. APPENDIX A NOTICE TO ALL EMPLOYEES 374A Pursuant to the recommendations of a Trial Examiner 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 employ- ees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, 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 employee named below immediate and full rein- statement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination.* WE WILL BARGAIN collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit de- scribed herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees of the Respondent employed at its plant in the Borough of Brooklyn, New York, New York, excluding office and clerical employes, executives and supervisory employees with authority to hire, pro- mote, discharge, discipline, or otherwise effect changes in the status of employ- ees, or effectively recommend such action. *Joseph Luca. All our employees are free to become or remain members of the above-named union 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 membership in or activity on behalf of any such labor organization. AMES SPOT WELDER CO., INC.. Employer. Dated ----------------------- By ---------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.