The Cleveland Graphite Bronze Co.

In the Matter of THE CLEVELAND GRAPHITE BRONZE COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO and MECHANICS EDUCATIONAL SOCIETY OF AMERICA, LOCAL No. 5 (PARTY TO A CON- TRACT) Case No. 8-C-1986.-Decided December 10, 1547 Mr. John A. Hull, for the Board. Smith, Bellamy, Dill and Hopkins, by Messrs. Melville Reese Dill, Glen 0. Smith, and David Hopkins, of Cleveland, Ohio, for the re- spondent. Mr. Steve Sabo, of Cleveland, Ohio, for the CIO. DECISION AND ORDER On December 16, 1946, Trial Examiner R. N. Denham issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Interme- diate Report attached hereto. Thereafter, the respondent filed excep- tions to the Intermediate Report and a supporting brief. On October 9, 1947, the Board heard oral argument at Washington, D. C. Only the respondent appeared and participated in the oral argument. The Board has reviewed the rulings made by the Regional Director before the hearing and by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief of the respondent, the oral argument, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the exceptions and modifications discussed herein.' I Those provisions of Section 8 (1) and (3) of the National Labor Relations Act, which the Trial Examiner herein found were violated , are continued in Section 8 (a) (1) and 8 ( a) (3) of the Act as amended by the Labor Management Relations Act, 1947. 75 N. L. R B., No. 61. 481 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The Trial Examiner found that the respondent unlawfully dis- criminated against employees Leonard Bosco, John Al. Fajack, Karl Ritter, Frank B. Galka, Anthony Petrovick, Samuel Genshaw, and Ethel Harris. With this finding we agree. Of the 9 employees sus- pended on May 24, 1946, 2-Galka and Harris-were president and secretary, respectively, of the CIO local in the plant; 5 others-Bosco, Fajack, Ritter, Petrovick and Genshaw-were active supporters of the CIO; and 2-Perry and Felice-had seriously compromised their loy- alty to MESA in the eyes of MESA's oflicialdoni by canceling their dues check-off authorizations in behalf of MESA and, in the case of Perry, by obtaining and turning into the respondent's personnel office approximately 200 dries check-off cancelations by other employees dar- ing the 3-week period preceding the date of the suspensions.' It is thus apparent that every one of the 9 suspended employees was either a professed or a suspected CIO supporter. Not a single employee of apparent unquestioned loyalty to MESA was included among the group of disciplined employees. There is no apparent reason, in the absende of discrimination, why the composition of the suspended group of employees should have been so heavily weighted against the CIO. There is no evidence that the number of CIO adherents exceeded those of MESA,' or that the former violated company rules more frequently than did the supporters of MESA. Under these circumstances, the marked disproportion of real or suspected anti-MESA employees in the group selected for suspension is persuasive evidence of cliscrini- ination.4 The respondent's failure and reluctance to detail the conduct of the complainants responsible for their suspension reinforces the inference of discrimination. Thus, the suspended employees were advised in only the most general terms as to the reason for the disciplinary ;action now MESA's officials regarded Perry and Felice is apparent diem a report b3 Perr y of it conversation with Matthew Smith 3 days after the suspension, Pei iv and Felice had gone to see Smith to enlist his aid in restoring them to their jobs Smith asked why the two men had canceled their dues check-off authorization Perry replied that they hoped in this way to get better representation from the stewards Smith answered "that hadn't been the way it looked to him because there was so many people that drew out all at one time, it looked like it was some kind of a timing device to aid ,mother Union Percy and Felice finally convinced Smith that he was wrong in his interpretation 3 No figures are available as to CIO and MESA support at the time in question how- ever, at the oral argument counsel tor the respondent reterled to the fact that MESA had won a consent election held in January 1947 to deter mine whether the employees desned to be represented by MESA or the CIO The Board's records (Case No 8-It-2148) show that MESA won the election by a vote of 1753 to 1295 and was certified by the Board on January 28. 1947 a See N L It B y 1V C Ilachelder. 120 F (2d) 574. 578 (C C A 7) N L P B v. Sanely hill lien cC Brass Works, decided November 5. 1947. 165 F (2c1) 660 (C C A 2) ; Hamilton-Brown Shoe Company v N L B B . 104 F (2d) 49 53 (C C A S) , F 1V 1Vool¢coitlo Company N N L R B, 121 F (2d) 658. 661 (C C A 2) N I, 11 B v. Aladdin Itiadustrics, hat, 125 F (2d) 377, 389 (C C A 7). THE CLEVELAND GRAPHITE BRONZE COMPANY 483 taken against them.5 Several asked for a further explanation, but Young, the personnel manager, refused to give any. Soibe of the sus- pended employees apphecl for unemployment insurance. The respond- ent protested their claims but, when requested by the State of Ohio to give the reason for the suspensions, declined to do so. The claims were then allowed, the claimants serving only the normal waiting period.' In the salve way, the respondent made no attempt at the hearing to have the department supervisors immediately responsible for selecting the employees to be suspended, explain or justify their choices.' But if there existed any doubt that the respondent was not holding the balance even between the CIO and MESA in effecting the suspen- sions, that doubt was dispelled by the respondent's treatment of MESA's squad which was responsible for the eviction on June 7, 1946, of employees Gall, Laidig and Saggio. It is difficult to imagine a more arrogant assumption of managerial prerogative or a more fla- grant violation of p] ant rules than this act by the MESA squad. Yet the respondent took no disclipunary action against the known perpe- trators of this action, although only 2 weeks earlier, in implementing a new and determined policy to restrict union activities to the em- ployees' own time, it had suspended indefinitely a group of CIO ad- herents for allegedly carrying on union activity on company time. Accordingly, we find, as did the Trial Examiner, that the respondent unlawfully discriminated against employees Leonard Bosco, John M. Fajack, Karl Ritter, Frank B. Galka, Anthony Petrovick, Samuel Genshaw and Ethel Harris, and that it has thereby discouraged mem- S This does not appear to be true with respect to Felice 9 The decision of the Ohio Bureau of Unemployment Compensation in the case of Leonard Bosco reads as follows : Upon ieconsideiation of this claim as provided in Section 1346-4 of the General Code, we find as follows Isscn, Cause of unemployment FACTS Claimant was suspended by The Cleveland Graphite Bronze Co , Inc. on May 24, 1946, for an indefinite period. This employer has refused to divulge to the Bureau reasons for claimant's suspension In the absence of any evidence that claimant was suspended for just cause it will be held that he is entitled to a valid claim without disqualification However, the Trial Examiner did question two of these supervisors, McKinley and Swift, as to their selections Both gave unconvincing explanations of their actions McKinley, who was responsible for the suspension of employee Ritter, testified that his recommendation was based not on peisonal knowledge of Ritter's actions but on reports lie had been receiving from his subordinate supervisors "and not necessarily on the third shift" (Ritter worked on the thud shift) that Ritter was doing a lot of talking with people coming through his department McKinley was unable to give the names of the supervisors from whom lie had received these reports, but admitted that they had not come from Ritter's foreman Switt testified that lie was responsible for the selection of employee Harris, secieLUy of the CIO local in the plant. Shutt stated that lie had decided on Harris, n ithout consulting her foreman, on the basis of daily reports lie had been receiving Ile had selected Harris "as a natter of judgment, as a person in the inspection department who had been somewhat troublesome " When asked what Harris had done, Swift at first replied that lie didn't remember and then said, "Well, its the usual type of things, objecting to working with other girls and causing the boss a few headaches back in the inspection department." 766972--4S-vol. 75-32 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership in the CIO, and interfered with, restrained, and coerced its employees in.the exercise of the rights guaranteed in Section 7 of the Act. ,2. The Trial Examiner has found the respondent responsible for the June 7 eviction of employees Gall, Landig and Saggio. We do not agree. The respondent had no foreknowledge that these evictions would take place. None of its supervisors participated in the evictions. The squad did not advertise its purpose. While some of the respond- ent's supervisors must have observed the squad's progress through the plant, no inference of knowledge of the squad's intent can be drawn from this fact, inasmuch as Gall, Landig and Saggio did not them- selves suspect the squad's design.8 Finally, the respondent acted with reasonable promptitude in restoring the evicted employees to their jobs and in guaranteeing them protection from further molestation. Under these circumstances, we are unable to agree with the Trial Examiner that the respondent was responsible for the eviction of Gall, Landig and Saggio.s Accordingly, we shall dismiss the complaint insofar as it alleges that the respondent discriminated against these three employees. 3. The Trial Examiner has found that the respondent discharged Robert Bosco because of his membership in, and activity in behalf of, the CIO, and to avoid offense to MESA, and not because of the unsatis- factory character of his service or the Linhart incident, the reasons alleged by the respondent. Bosco had worked for approximately 6 years under the supervision of Superintendent Swift, the man re- sponsible for his discharge. Swift described Bosco from a workman's standpoint as "In production or quantity he is average; in quality he is below average." Swift also related the following incidents involving Bosco which were factors, together with the Luihart affair, in his decision to discharge Bosco : (a) In the latter part of 1943, Bosco got into such a heated argument with another employee in the group of employees with whom we was working, that Swift had to intervene to prevent a fight between the two. (b) One Saturday in December 1944, Bosco and another employee named Pace, whose regular jobs were that of punch press operators, were temporarily assigned to operate lathes be- cause of a shortage of material for the punch presses. About 2 I Thus, employee Gall testified that, when asked to go along with the MESA group, "I figured they might take me down to their headquarters downstairs, and I didn't see any harm, and I started with them " It was not until he was outside the plant that he learned lie was being evicted. Cf. Matter of Fred P. Weissman Company, 69 N. L. R. B. 1002, 71 N. L R. B 147. THE CLEVELAND GRAPHITE BRONZE COMPANY 485 hours before quitting time, Pace's lathe job ran out. Meanwhile, it supply of material for the punch presses had accumulated and Pace was returned to the operation of his punch press by the foreman in charge. Bosco was kept on the lathe both because his job had not run out and because he was a more experienced lathe operator than Pace. Bosco very vigorously objected to the fact that Pace and not he had been reassigned to the punch presses for the remainder of the day, appealed to his union steward, who declined to take the matter up as a grievance, then to his foreman and finally to Swift who justified the action of his foreman in regard to Pace as equitable. Swift reported the matter to the labor relations department because he considered the incident a special one. (c) In February 1945, another Bosco-Pace incident similar to that of the previous December occurred. Pace was a very nervous man and had to be moved to another department because of this dispute. This time,- Swift made note of the fact that, if he had any more disturbances from Bosco, disciplinary action would have to be taken against him 10 (d) In February 1946, contrary to the instructions on his ma- chine, Bosco filled his pans from 40 to 50 percent too full. By this action Bosco was enabled to save the time necessary to re- place the pans and thus could increase his production and his earnings. Swift reprimanded Bosco for this occurrence. (e) In July 1946, Bosco made an abnormal amount of scrap in a lot of 2,000 pieces which he had manufactured. Bosco ad- mitted his responsibility for this action when it was brought to his attention. (f) On August 20, 1946, the Linhart incident occurred. We are not persuaded, as was the Trial Examiner, that Bosco was discharged because of his membership in, and activity in behalf of, the CIO and to avoid offense to MESA. Accordingly, we shall dis- miss the complaint, insofar as it alleges that the respondent discrimi- natorily discharged Robert Bosco. 4. The Trial Examiner has found that, by the suspensions of May 24, 1946, the evictions of June 7, 1946, and the discharge of Robert Bosco, the respondent, in effect, warned, urged, persuaded, and ordered 10 After Keaveny learned of Swift's decision to discharge Bosco, Keaveny told Bosco, according to the latter , that Bosco was in trouble and referred back "to the case of Bob Pace and upsetting the committee and the stewards and the foremen and everybody else there " The Trial Examiner has construed that part of the statement which refers to upsetting the committee , the stewards , the foremen and everybody else as referring to the situation which had existed during the early months of the year , when Bosco was the center of the election disturbances. Actually, Keaveny was referring to the disturbances caused by the Bosco -Pace incidents 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its employees to join or continue their membership in MESA, and to assist and support that organization and advised, urged, and warned its employees to refrain from becoming members of the CIO, and from engaging in activities in behalf of the CIO, thereby vio- lating Section 8 (1) of the Act. Although we have reversed the Trial Examiner's findings as to the June 7, 1946, evictions and the discharge of Robert Bosco, the necessary effect of the May 24 discriminatory suspensions of leading CIO supporters was to encourage member- ship in MESA and to discourage membership in the CIO. This effect was reinforced by the respondent's failure to take any disciplinary action against the MESA squad following the June 7 evictions. De- spite the fact that the respondent was not responsible for the evic- tions, its failure to discipline the employees who were known to have, taken part in them, when considered in connection with the earlier suspensions of prominent CIO adherents, could not but affirm, in the, eyes of the employees, the meaning of the May 24 suspensions. Ac- cordingly, we find that by the May 24,1946, suspensions and the failure to take any disciplinary action against the perpetrators of the June 7, 1946, evictions, the respondent unlawfully encouraged membership in MESA and discouraged membership in the CIO, and thereby inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 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, The Cleveland Graphite Bronze Company, Clevelnd, Ohio, and its officers, agents. successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of Amer- ica, CIO, or in any other labor organization of its employees, or encouraging membership in Mechanics Educational Society of Amer- ica, Local No. 5, or in any other labor organization of its employees, by suspending or laying off any of its employees, or in any other manner discriminating in regard to their hire or tenure of employ- ment, or any term or condition of their employment; (b) Interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, as amended, by applying different standards for the imposition of disciplinary action against employee members of one labor organization than against employee members of another labor organization. THE CLEVELAND GRAPHITE BRONZE COMPANY 487 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make whole Leonard Bosco, John M. Fajack, Karl Ritter, Frank B. Galka, Anthony Petrovick, Samuel Genshaw and Ethel Harris, for any loss of pay that they may have suffered because of their discriminatory suspension from employment between May 24, 1946, and July 19, 1946, by payment to each of them of a sum of money 'equal to the amount which he or she normally would have earned as wages during such period, less his or her net earnings, if any, during the same period; (b) Post at its plant in Cleveland, Ohio, copies of the notice attached hereto and marked "Appendix A." 11 Copies of such notice, to be furnished by the Regional Director for the Eighth Region shall, after being duly signed by an authorized representative of the re- spondent, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days there- after, 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 notice is not altered, defaced, or covered by any other material ; (c) Notify the Regional Director for the Eighth Region in writing, within ten (10) clays from the date of this Order, what steps the re- spondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint , insofar as it alleges that the respondent discriminatorily terminated the employment of employees Stephen Gall , Frank Landig, William Saggio, Florence Kmet, William E. Bagshaw and Robert Bosco, in violation of Section 8 (3) of'the Act, and that the respondent contributed financial sup- port to MESA and questioned employees as to their union member- ship in violation of Section 8 (1) of the Act, be, and it hereby is, dismissed. MEMBER GRAY took no part in the consideration of the above De- -cision and Order. APPENDIXA 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 : In the event that this Order is enforced by decree of a Circuit Court of Appeals, there sha11 be inserted before the words "A Decision and Cu der," the words "A Decree of the Uiuted• States Circuit Court of Appeals Enforcing" 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS or AMERICA, CIO, or in any other labor organization of our employees, or encourage membership in MECHANics EDUCA- TIONAL SOCIETY OF AMERICA, LoCAL No. 5, or in any other labor organization of our employees, by suspending or laying off any of our employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act, as amended, by applying different standards for the imposition of disciplinary action against employee members of one labor or- ganization than against employee members of another labor organization. WE WILL MAIcE WHOLE the employees named below for any loss of pay that they may have suffered because of their discriminatory suspension from employment between May 24, 1946, and July 19, 1946. Leonard Bosco Anthony Petrovick John M. Fajack Samuel Genshaw Karl Ritter Ethel Harris Frank B. Galka THE CLEVELAND GRAPHITE BRONZE COMPANY, By -------------------------------------------- (Representative ) ( Title) Dated ------------------------ 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 John A. Hull, Esq., of Cleveland, Ohio, for the Board. Steve Sabo, International Representative, of Cleveland, Ohio, for the Union. Smith, Bellamy, Dill and IZopkins, of Cleveland, Ohio, by Melville Reese Dill, Esq, Glen 0. Smith, Esq, and David Hopkins, Esq, for the respondent STATEMENT OF THE CASE Upon a second amended charge filed September 10, 1946, by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, herein called the CIO, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint dated September 10, 1946, against The Cleveland Graphite Bronze Company, of Cleveland, Ohio, herein called Respondent, alleg- ing that Respondent had engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) of the National THE CLEVELAND GRAPHITE BRONZE COMPANY 489' Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the com- plaint together with copies of the second amended charge and notice of hearing thereon were duly served, on September 10, 1946, upon Respondent, the CIO, and upon Mechanics Educational Society of America, Local No. 5, herein called MESA, as a party to a contract involved in these proceedings. With respect to unfair labor practices, the complaint alleges, in substance, that since December 1, 1944, Respondent, through its officers, agents, and employees, has engaged in a plan and a continuous course of conduct which has interfered with, restrained, and coerced its employees in the exercise of the right to self- organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, in that Respondent has: (a) urged, persuaded, and ordered its employees to join or continue their membership in MESA and to assist the aforesaid organizations; (b) contributed financial support to MESA and otherwise assisted and supported it; (c) questioned its employees with reference to their membership in or ac- tivities on behalf of the CIO; and (d) advised, urged, and warned its employees to refrain from becoming members of the CIO or engaging in activities on behalf of the organization ; that on May 24, 1946, Respondent terminated the employ- ment of seven named employees whom it subsequently reinstated ; that on June 7, 1946, Respondent terminated the employment of three named employees whom it subsequently reinstated, and that on three separate dates between August 2 and August 22, terminated the employment of three named employees, all such terminations being made because the employees had become members of and exercised activity in behalf of the CIO, and that since such dates, Respondent has refused to reinstate the three employees last referred to. Prior to the date set for the hearing on the complaint, MESA petitioned the Board for continuance thereof, which petition was denied. Pursuant to the notice above referred to, a hearing was held at Cleveland, Ohio, between October 7, 1946, and October 18, 1946, before the undersigned, R. N. Denham, a Trial Examiner duly designated by the Chief Trial Examiner The Board and Respondent were represented by counsel, and the CIO by its Inter- national Representative. MESA entered no appearance nor was there at any time during the hearing anyone present to represent that organization All, parties who appeared herein participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and introduce, evidence pertinent to the issues. At the opening of the hearing, Respondent moved for a continuance on sub- stantially the same grounds as those originally advanced by MESA, to wlnclb motion was attached an affidavit stating that it would be impossible for Re- spondent to proceed with its defense against the complaint in the absence of Mathew Smith, the National Secretary of MESA, who was then out of the city and who had instructed the officers and members of his union to refuse to appear at the hearing scheduled to begin October 7; and if subpenaed, to refuse to testify. Counsel for Respondent was reminded by the Trial Examiner that the Board' is prepared`to issue subpenas for any witness required by any of the parties for the proper presentation of evidence on its behalf Counsel for Respondent an- nounced reluctance to utilize the subpena power of the Board to compel attend- ance of representatives of.MESA as witnesses. The motion for continuance was denied, whereupon Respondent filed its answer admitting the allegations of the complaint with reference to its corporate existence and the character and extent of the business done by it, and admitting that the CIO and MESA are labor 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizations within the meaning of the Act, but denying all the allegations of the complaint pertaining to the commission of any.unfair labor practice At the close of all the testimony, the motion of counsel for the Board to conform the pleadings to the proof for the correction of names, dates, and other matters not going to the issues, was granted. Both at the conclusion of the presentation of the Board's case-in-chief and at the conclusion of all the evidence, counsel for Respondent moved to dismiss the complaint for failure of proof. The motions were and are now denied. Oral arguments to the Trial Examiner were waived, as was the privilege of filing with the Trial Examiner proposed findings of fact or briefs. On the basis of the foregoing and upon the entire record, having seen and observed the witnesses and examined the exhibits offered anal received in evidence, the undersigned now makes the following : 0 FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, The Cleveland Graphite Bronze Company, is an Ohio corporation with its offices and plant located at Cleveland, Ohio, where it is engaged in the manufacture of bearings and bushings for automotive equipment and other similar purposes. During the calendar year 1945, a substantial amount of raw materials utilized by the company, consisting of steel, copper, bronze, and cadmium, origi- nated from points outside the State of Ohio. During the same period the com- pany's sales were valued at in excess of $10,000,000, of which a substantial amount consisted of products sold and shipped outside the State of Ohio. Respondent admits that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, and the Mechanics Educational Society of America, Local No. 5, are labor organizations admitting to membership employees of Re- spondent. III. THE ALLEGED UNFAIR LABOR PRACTICES The setting Respondent manufactures sleeve bearings and cylindrical bushings for use in motors and diesel engines, and is the major source of supply of these articles for almost the entire automobile industry in the United States, as well as the farm implement and diesel engine manufacturing industry. Its plant in Cleveland is a new structure of ultra modern design and lay-out, being a group of four or five one-story buildings connected either by passage ways or tunnels and covering a floor space of approximately 17 acres. It is situated on a 71-acre tract on the edge of Cleveland and sits back from the street about 100 to 150 yards The main plant has a frontage of 400 feet or more facing the street and extends back from that point about 1,000 feet, with the other smaller buildings connecting with it as has been heretofore mentioned. Bearings, in the main , as well as the bushings , are processed from strips of steel or bronze heavily coated with appropriate bearing metal. Almost all the steps of manufacture, with the exception of a few boring or drilling operations, are of the punch press variety; that is to say, pieces of appropriate length are THE CLEVELAND GRAPHITE BRONZE COMPANY 491 cut off in a press from a roll of strip metal ; they are shaped to their forms in various other presses ; blocks and oil grooves are cut in them at other machines ; the edges are trimmed in still other machines , and the final broaching finish is given them in still another operation after which they are subjected to various treatments and inspections before being ready for shipment Approximately one million pieces are finished daily through the shop. Such a flow of material is, of necessity , exceptionally rapid , and the requirement for concentrated attention by the operators , and uninterrupted production in order to maintain the flow, is obvious . The Respondent employs about 3500 production workers at this time and is operating three S-hour shifts per day , with the day shift employing the greatest number of the three. Respondent's production operations are divided into departments which in- clude Thinwall Department , Bushing Depattment , Diesel Department , Aircraft Department , Ford Department , Casting Department , Hot Metals Department, and the toolroom Each department is presided over by a superintendent under whom there is a general shift forem an for each shift The sections of related operations in each department are supervised by job foi emen Their operations are, in turn , further broken down into what are known as machine centers , being groups of machines doing a similar type of work This subdivision arises from the fact that , since most of the operations involve the use of cutting or shaping tools and dies which must be maintained at a high degree of pre- cision, they are thus organized so that each machine center may be served by one or more set-up men who are charged with responsibility for keeping the machines in adjustment, and set with the appropriate tools to perform the job then going through that machine center. Each machine shift has its own staff of set-up men who are constantly in attendance on the machines assigned them. These employees are not supervisory in character , and have no authority usually incident to a supervisory employee ; they may advise an employee in the use of his machine , but are not required to do so. Their job responsibility is for the proper tooling of the equipment , and its adjustment and maintenance of adjust- ment. The machines themselves are operated by employees whose chief attribute is the manual dexterity with which they place the pieces in the machines and remove them after the operation has been completed. There is evidence to indicate that some operators will handle as high as 20,000 such pieces in the course of a single shift MESA in the plant In about 1932, the toolroom was organized by Mechanics Educational Society of America, then and now under the leadership of Mathew S'nutli,l who carries the title of Executive Secretary. Since 1932 Respondent has bargained with MESA as the representative of the employees in the toolroom. In. 1935 a small group of production employees, including Austin Keaveny, then a machine opera- tor but now the assistant personnel director, undertook to organize the production employees under the banner of MESA and sometime during that year, having succeeded in effecting a substantial organization, procured a charter from MESA for a production workers local Sometime thereafter, the toolroom local and the production local were combined and at all times since then have represented all the hourly rated employees. Keaveny promptly became an active union member and served as vice president and chairman of the shop committee during 'Referred to generally as Matt Smith. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1935, 1936, and 1937 when he resigned as an officer in some disagreement with the general operation of MESA. From then until a lay-off to which he was subjected in December of that year, Keaveny maintained his membership but took no active part in union affairs. He returned to work in August 1938, but did not renew his membership in MESA, and in February 1939 was advanced to a salaried position in the production department where he remained until 1941 when lie was transferred to the Personnel Department as an assistant to the then personnel manager, a Mr. Sadler. He still serves as assistant- personnel director, now under Merrill A. Young Under the organizational set-up of MESA, and the provisions of its contract with Respondent, Local 5 has functioned under the normal complement of officers elected at intervals by the rank and file membership These elections also embrace the selection of an executive board and a member to serve on the National Advisory Council of MESA, which apparently is a group of representatives from each local, functioning in conjunction with Mathew Smith's office with reference to over-all union matters and also in connection with certain types of disputes within the locals 2 The official group thus elected appears to constitute the internal administration of the Union. The administration of the contract, and the relations of the employees with Respondent, appear to have been almost exclusively within the hands of the -stewards and the shop committee, who were independently selected. Under the bylaws as they existed until the middle of 1946, each of the various departments of the shop elected a designated number of stewards who functioned in the manner ordinarily common to stewards in production plants. These steward groups, however, selected from their own number in each department a chief steward who served as a member of the shop committee from that ,department; the shop committee as thus constituted, selected from its number a chairman who devoted his entire time to the affairs of the Union, and was paid full time by Respondent as though he were on a production basis. There is some indication that in addition to the compensation received by him from the Company, he also received substantial allowances from the Union. The terms of the stewards, shop committeemen, and chairman of the shop committee appear to have been for indefinite periods, with the shop committeemen subject to recall at any time by the departments from which they respectively were chosen. For several years, Henry Mickelbrink has occupied the post of chair- man of the shop committee, and in that capacity has dictated most of the local relations of the Union with Respondent, although on major matters and some .apparently minor ones, the Union's spokesman has almost invariably been Matt Smith. The record reflects little concerning the relations of Respondent with MESA ,up to late 1945, beyond generalities from which one cannot but infer that Matt Smith dictated, in a somewhat arbitrary fashion, the policies and activities of MESA; that he was difficult to deal with and dangerous to oppose ; that his demands often were high handed, and that, because of his threats of reprisals and his ability to apply them, Respondent's attitude generally was to appease MESA rather than to oppose its demands with any substantial degree of finality. When MESA first began to represent the production employees, the set-up men, who were on a salary and not an hourly basis, were not included in the 2 MESA did not appear at the hearing and no copy of its constitution or bylaws was made available . These findings are based on the descriptive testimony of employees who h ad served in various official capacities. THE CLEVELAND GRAPHITE BRONZE COMPANY 493 bargaining unit because of their salaried status. However, as time went on, MESA more or less automatically included them in their bargaining operations and at some date not fixed by the record, eventually made an agreement with Respondent which included them within the bargaining unit notwithstanding their salaried status, but with an understanding that if the inclusion of hourly rated and salaried employees in the same unit proved unsatisfactory, such arrangement would either be abandoned or the set-up men would be changed over from their salaried basis to an hourly rate. This change-over did, in fact, come later and formed part of the background out of which this case arises. During the war, with greatly increased employment in the plant, a large num- ber of the set-up men, who are highly skilled mechanics, became job foremen to meet the increased requirements for supervision of the expanded production staff. With V-J Day, and the accompanying contraction of staff, the problem of reconversion from war production to commercial production necessitated a re- versal of this process and revision of the duties of many of these foremen-set-up men. Under the contract between MESA and Respondent, seniority was recognized, but not as a controlling factor in matters pertaining to transfers, promotions, demotions, etc. ; and in the reconversion adjustments, considerable dissatisfaction was created among the former set-up men who were demoted to their old jobs, and among the newly created set-up men who were demoted to their old positions of operators. The question of this seniority became acute in late October or early November 1945, at which time the set-up men struck At first, the strike was confined to that group alone and was not recognized by MESA for several clays ; but within a short period, MESA gave the strike its support, resulting in a complete shut-down for a period of almost 2 months during which time MESA, under the leadership of Matt Smith, engaged in negotiating for a new contract and a 10 cent per hour increase in waves The contract arising from these nego- tiations provided for the wage increases and also placed the set-up men on an hourly rated basis, but on the question of seniority, which was the major issue of the strike, the agreement confirmed the Company's position with reference to seniority and its application, and resulted in no gain for the set-up men on their contentions. The MESA-CIO controversy begins During the past 2 or 3 years, the CIO has made some intermittent effort to obtain representation of the employees at Respondent's plant, but apparently with little success. On January 5, 1946, after the new contract between MESA and Respondent had been made public, the set-up men called a meeting for the purpose of studying and discussing its provisions, many of which were wholly unsatisfactory to them. Arrangements were also made whereby Steve Sabo, the Inteinational Representative of the CIO, attended the meeting and discussed the contract and the CIO with those in attendance. This meeting was attended by 50 or 60 set-up men, constituting about half of those in that classification. Sabo addressed them and urged those present to become affiliated with the CIO. Membership application cards were distributed and were signed by a substantial number of those present. Although the previous 2 months had been marked by the strike and the efforts of the set-up men to obtain recognition of their demands for absolute seniority, no open controversy of substantial size between groups of employees came to the surface in the plant until immediately following the January 5, 1946, meeting above referred to. Within a few days, Mickelbrink and one or two others of 494, DECISIONS OF NATIONAL LABOR RELATIONS BOARD the shop committee began questioning various set-up men concerning the Janu- ary 5 meeting, in an attempt to identify those who had been active in introducing the CIO into the plant. This served only to crystallize the determination of those set-up men who had most vehemently opposed the new contract, to promote the CIO, and within a very few days, C10 memberships were being openly solicited among the production employees of their various departments, chiefly by set-up men. Although most of those who testified from among the set-up group and from among those who are named in the complaint as having been the victims of discrimination, denied that they engaged in solicitation on company time but confined their activities to their lunch hours and other free time, as well as to activities off the company property, it is impossible, in the light of all the circum- stances and the conditions which admittedly existed for the next several months, to fail to teach the conclusion that the relative merits of the CIO and MESA soon became topics of almost constant conversation and controversy among the production employees, both during working hours and at all other times. Mem- bers of both groups, in large numbers, were offenders against the rule. No figures were produced as to the number of employees who signed membership application cards with the CIO, but it is conceded by all parties that when CIO buttons were made available in mid-May, a very substantial number of the em- ployees openly wore them, both on their working garments and on their street clothes, the estimates running from 20 to 40 percent or more, in several of the large departments. From this beginning, the months of January. February, March. April and May, 1946, were marked with progressively increasing controversy, dissatisfaction with the union situation, disorder, and unrest among the employees, to such a point that production was seriously interfered with and morale deteriorated. While this was going on, Respondent was demanding of Matt Smith that MESA take some steps to correct the situation within its own ranks , and at the same ,attune, Smith and the shop committee were demanding that Respondent discharge the advocates of the CIO in the plant, and refusing to attempt to control their own members until Respondent had done so. In addition to the iiIESA-CIO struggle, there were also violent internal disruptions withiu,MESA. One concerned an election of officers which was held in February 1946, while another group, to some extent identified with the person around whom the election controversy centered, was attempting to break Mickelbrink's hold on his office as chairman of the shop committee, and the de- struction of the `machine" by which he was said to have held control of the shop committee, by advocating changes in the bylaws that would require shop committeemen to be elected by rank and file employees instead of being appointed by the stewards, and also by conducting a c:unpaign. with fair success, to have the employees cancel their authorizations for check-off of union dues The election controversy arose over the fact that in the primary election to designate candidates for the various offices, the two successful candidates for President were Robert Bosco, whose case is otherwise dealt with herein, and a former MESA member who had been a foreman during the war period but had been demoted to an hourly rated employee less than a year prior to the election In the resultant campaigning, P lickelbrnik became an active participant in the anti-Bosco faction, while Erwin Perry. the lender of the faction to unseat Mickel- brink and to cancel the check-off authoiizatioiia. was a well-known supporter of Bosco 3 One year of membership in MESA was a condition piecedent for election to any office. THE CLEVELAND GRAPHITE BRONZE COMPANY 495 As the run-off election appi oached, the eligibility of Bosco's opponent was challenged and the question finally came to Matt Smith and the Advisory Council for decision: When this authority ruled the former foreman ineligible and di- rected that Bosco's name be placed on the ballot with no opponent designated, It violent controversy arose between Mickelbrink and Smith over the matter. This breach, however, appears to have been subsequently healed, when forces were consolidated to oppose the CIO After the election in April, when Bosco was declared by the Advisory Council to have been duly elected, the Mickel- brink group and the shop committee refused to recognize him as President or to permit hint to participate in any of the affairs of the shop committee. In this state of affairs, relations between Respondent and MESA, and particularly the processing of grievances, and negotiations for revisions of the January 1946 contract which had been foi eseen when that contract was executed, were almost entirely suspended, notwithstanding Respondent's repeated pleas to Matt Smith to get the mess straightened out. To add to the election confusion and strife, Perry, in addition to promoting the cancelation of check-off authorizations, had, with his group, advocated an amendment to the bylaws of MESA designed to provide for direct election of shop committeemen by the rank and file in the departments they respectively were to represent, instead of having them selected by the stewards in such de- partments. These two moves, being aimed directly at the Mickelbrink control of the shop committee, and being well known to Respondent's Personnel Depart- ment, through whom all the revocations of check-off passed, together with Perry's strong advocacy of Bosco's election, definitely brought hint into disrepute with the controlling faction in MESA and, although he had always opposed CIO, made horn a target whose discipline obviously would not offend MESA officialdom. In the midst of the intro-union conflict of MESA, the CIO invasion developed and grew. Many dissident MESA members abandoned their organization to embrace CIO. Many others, who still maintained their fundamental loyalty to MESA, were accused of secretly being members of CIO. Bosco was charged with trying to lead MESA into CIO,' as were others. until the factional fights within MESA became so confused with the hitter's efforts to extinguish the C10 influ- ence. that the two issues became almost indistinguishable The airing of views on these controversies because progressively more general and more acrimonious. There was little distinction between working time and free time for the persist- ent arguments between iuembeis of the various conflicting factions The result- ing serious interfei ence with production aml gi owing concern of management was inevitable. While the antra-union problems were matters that were susceptible of being ultimately disposed of internally and with not too much interference with the work, it was the MESA-CIO conflict that became the chief concern of MESA. Glen 0. Smith's ' conferences with Matt Smith and the shop committee increased greatly in frequency in the early part of May, when Respondent was urging Smith to get the election tangle straightened out so it could carry on its business with MESA under the terms of the contract; but each such conference appears to have " Bosco's brother, Leonard, had been a known CIO member for some years, although a member of MESA «'lien the CIO movement star ted in January, and throughout this gen- eral controversy, lie tried, unsuccesstully, to persuade Bosco to abandon MESA It was not until sometime in early July 1946 that Bosco resigned from MESA, following his defeat in another election, and joined CIO B Glen 0 Smith is Secietarv and General Counsel to Respondent, and habitually con- thicted most nevotiations with Mathew Smith 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD degenerated into a recurring demand by Smith that Respondent clear the plant of CIO influence before it could expect MESA or its members to settle back into normal production activities. On the subject of the election confusion, Glen O. Smith testified : 6 There was a definite split in the Union out there. A large number of them held the view that Mr. Bosco never had been elected president, and that they wouldn't attend any meeting, or no meetings of the shop committee could be held with him present. And as a result, for a number of months there it was impossible for the company to hold any meetings, or to get anything clone in connection with the grievance procedure with the shop committee. So that all the company wanted, and all I ever asked for from Matt, was, for the shop committee, that they proceed and get this election question set- tled; that it was definitely interfering with production out there and morale in the plant; and that we wanted an election finally held and disposed of one way or another. Through some agreement reached in mid-May, an arrangement was made with the United States Conciliation Service to have a conciliator conduct a referendum election in the plant to determine whether a majority of the employees desired to vacate the Bosco election. Such election was held on May 28, 1946, and resulted in setting the Bosco election aside. On June 25, the Conciliation Service conducted a second election among the members of MESA, this time for the selec- tion of officers, and members of the executive committee, as well as delegates to the National Advisory Council. Although Bosco participated, he was defeated by Patrick O'Malley This election did not affect Mickelbrink's standing as chair- man of the shop committee A little later, Perry's proposed amendment to the MESA bylaws was adopted by the membership, and Perry, although absent under suspension at the time, was selected as committeeman from the Hot Metal Depait- ment. However. in the subsequent designation of chairman of the shop com- mittee, Mickelbrink retained his position and is the current chairman of that committee Whether Perry and Mickelbrink have composed their differences is not reflected in the record. On about May 19, 1946, a UAS-CIO charter was granted to the employees in Respondent's plant who had become members of that organization, and on the following day, almost every employee who had signed a CIO application card appeared at the shop with a CIO button on his work clothes. This display of CIO strength quickly brought to a more acute head the bitterness of the controversy that had been brewing in the plant for several months. MESA adherents warned CIO adherents not to report for work on pain of physical injury Matt Smith and the shop committee demanded that Respondent discharge the CIO employees and announced that if this were not done, they would organize "goon squads" and deal with them in their own way. The rule against engaging in union activity on company time was totally ignored by the participants on both sides, and opera- tions were reduced almost to a state of chaos. Glen O. Smith described the situa- tion thus: We, perhaps, temporized too much with many of the conditions that we were confronted with in the plant, not only with union activity within the plant, but with the election. 6 The quotations herein set out from the testimony of Glen O. Smith and Merrill Young are accepted as substantially accurate descriptions of the incidents therein dealt with. THE CLEVELAND GRAPHITE BRONZE COMPANY 497 So that we had the very difficult problem during the period immediately following the strike of election chaos, misunderstanding and threats and cliques ; we had Union activity both by the MESA and CIO within the plant ; One, the CIO trying to get members and do things to impress them, finding fault with things to impress people. And the MESA, on the other hand, with whom we have our contract, openly fighting them. It was a difficult situa- tion. If we did anything to discipline a MESA member for these infringements, we were immediately accused of discriminating against the MESA in favor of the CIO. If we did any disciplining or attempted to discipline anybody who might be suspected of being a CIO member, we were immediately con- fronted with charges before the National Labor Relations Board of discrimi- nating in favor of the MESA. I talked to Mr. Mathew Smith, I suppose, an average of three or four times a week. Those talks were primarily directed (1) to our complaint on the way the Union was handling this election problem ; (2) that due to the fact that they were the bargaining agent in the plant, that unless it compelled the people in the plant under its representation contract representing them, all to stay on the job, refrain from any and all union activity during working hours, we, the Company, just had no other alternative but to resort to some type of discipline, a thing which we were very reluctant to do. And it was very difficult for us to-in many things, I think, probably the worst offenders we still don't know. Most of these activities Union activ- ities within the plant, and particularly in this plant on these occasions, were pretty well organized, conducted secretly, and observers only got the end re- sult of a plan and very seldom the fellow who planned the job, or what they were trying to do, whatever it might have been. So, the instigators of the thing that the Company were complaining about, interference with produc- tion, people not staying at their jobs and doing their work, were pretty bard to put your finger on, except on your production figures and the end result. Now, I complained many, many times to the MESA. Under our contract I felt I had no legal right to discuss any of these things with the CIO. The MESA was the sole collective bargaining agent for all employees there. I had no right legally to discuss, negotiate, or even talk to CIO or CIO repre- sentatives about our problem. So, I was, in my opinion, limited to dealing on this subject, or these subjects, strictly with the MESA. Several days before May 23 I had discussed with Mr. Mathew Smith and Mickelbrink, the chairman of the shop committee, and told them very defi- nitely that unless the chaos and confusion and interruption with production in the plant was stopped, that we had no alternative but to take some disci- plinary action, and that we were insisting that something be done about it immediately, and we couldn't tolerate it any further. Mr. Mathew Smith at that time told me that he would personally check into this thing, and, he was madder than a hornet and pretty difficult to deal with. As I say, I made these demands on him. He was very much incensed and upset and accused me of discriminating against their Union, violating their contract in favor of the CIO. Q. What was the basis of that? 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Well, that we were not taking some overt acts to throw these so-calleds out of the plant, we were toles atmg things in the plant that we shouldn't tolerate. Well, I said, "I am going to do something about this unless it is stopped, and you are the bargaining agent, I have got a contract with you. Now I am saying to you that you either straighten this thing out or we are going to have to do something about it." Without any appointment or notice, on May 23, in the morning, Mr. Ma- thew Smith, Mickelbrink and a man named Severo, and, I think, one other man, I have forgotten, walked into my office. At that particular time they were all very, very mad and nasty. Matt in substance said to me, "I have checked this thing definitely and so far as I'm concerned we have gone as far as we are going to go." He said, "You are either going to -" he said, "You are making it absolutely impos- sible for us as a Union to live up to our contract by your temporizing and not throwing the CIO, and so forth, out of the plant. They are organizing the plant in the plant," and that we were not stopping them. Q. During working hours? A. During working hours. And that we are not stopping them and that makes it impossible for him to keep his members at work, and that he doesn't intend to keep them at work as long as these fellows are openly going around and soliciting members and doing Union activity during working hours. He has issued orders to the Union that they should stop it, and if it was necessary, to throw them out of the plant bodily, and that he was organizing soon squads to accomplish it. Oh, he said, the plant, which is a fact, was just ripe for revolution, that it was going to break into open warfare. There wasn't any question about that. Supervision had notified inc of that many times during the few pre- ceding weeks. The feeling was very high in the plant, and on this particular morning Matt just notified me that he was organizing goon squads and that he was going to throw them, out of the plant if they didn't stop their ac- tivities, and if that didn't accomplish the result he was going to close the plant, take them out on strike. He was not going to tolerate this plant being organized by the CIO right within the plant under his nose. Well, after he got through-and it was quite a tirade-I said to him, "Well, 111att, I under stand that we have a difficult situation out there in the plant, but as far as I am concerned I am not discriminating in favor of the CIO, I can assure you that. But, on the other hand, I'm not discrimi- nating or excusing what your Union does. So that I am rapidly coming to the conclusion, no matter how disagreeable it may be, we are going to have to discipline some people for breaking rules and regulations in the plant, but I can assure you when that is done, from my own personal knowledge some of your very best members and leaders are going to be in the dis- -ciphnation." Well, he blew his top at that and said there were going to be no MESA members disciplined, because they were only reacting to the overt action of the CIO and that they couldn't be criticized for resenting them or fighting against them or doing whatever they could to stop them. "Well" I said, "that wasn't going to be the Company's position I could assure him of that." "But," I said, "Now, I will make an appointment with you fellows for tomorrow. I would like as many of your shop committee to be there as you can have, your whole shop committee, if possible, and you. e THE CLEVELAND GRAPHITE BRONZE COMPANY 499 And by that time-we have had a number of meetings at the Company, we have practically made up our minds, but I will give you an answer as to what the Company proposes to do." Well, they left and they said, "Well, we can assure you-" I think it was Mickelbrink that said to me, can assure you that we'll have our squads organized to handle this situation ourselves. I said, "Well, you had better not attempt anything like that." So, I immediately got in touch with Mr. Young and other management officials, reviewed the situation again, called a meeting of all supervision and reviewed the whole situation For very definite reasons I stayed out of that meeting I didn't want in any way to color anybody's judgment I wanted the composite opinion and judgment of supervision in the plant. . Following the meeting last refeired to in Smith's above testimony, he in- structed Merrill Young, Respondent's personnel director and former works man- ager, to meet with the superintendents of the various departments the next morning, explain to them that Respondent did not intend to permit the existing conditions to continue, but proposed to suspend indefinitely, enough of the key men who were 6-using disturbances throughout the shop, to bring about a settling down process and an elimination of the constant squabbling that was going on throughout the plant. About 8. 30 on the morning of May 24, Young attended such a meeting of the supervisory officials, including the works manager and the assistant personnel director, and advised them that he was attending a meeting in Glen Smith's office in downtown Cleveland during the morning, but that when he returned, lie world ask the supervisors to reassemble and at that time be prepared to suggest the names of the key men in their respective departments whose discipline would probably bring about the desired result. Young testified that in talking to these supervisors, he impressed upon them that the Company was not injecting itself into the CIO-MESA fight, that the disciplinary action would have to "cut both ways" and that what he wanted was to get the names or the men who wend responsible for the disturbance, regardless of their affiliations. The meeting with \l;ut Smith and the shop committee scheduled for the morning of May 24, is described by Glen Smith in the following language. I told them that I had discussed with management the problems that they had most recentl} brought up the day before, and that we had made a survey of the situation, and that management had come to the conclusion that it would have to, under the circumstances, take disciplinary steps to stop the conditions existing in the plant. Which I again say were just on the breaking point of rebellion in many factions and sections-it wasn't only the Union problem, I mean the inter- Union, it was the CIO-MESA problem in the plant, as well as the inter- problemu of the MESA, and the set-up men's problem, and, oh, a lot of other things. It was just a general state of dissatisfaction, as far as the man- agement was concerned. And I told them that we had tried to avoid this particular step, but we had decided that we had considered disciplining a large number of people, but that we had seduced it to what we thought was an irreducible minimum, in an effort to stop this thing. And I told them that in doing this the management had definitely de- rided, with the little information we had on to who belonged to which Union, and what, but that we knew that in our pi oposed plan there were 7e6972-4S-vol 75--33 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD going to definitely be some leading MESA members included. And that we felt that in disciplining we had to take the over-all picture It was not a question of what caused men to break the rules, so much as the fact that they had been breaking them, and that we had definite evidence that MESA men were doing, or violating the rules around there, and that they would have to be disciplined in the over-all picture. My recollection is that no names were given to the Union as to who was going to be disciplined, except that as I ienieniber there were two names in particular of the MESA that were going to be disciplined. They were one man who was on the shop committee, a man by the name of Felice, of the MESA, and another man who was, I think, on the slate to be elected to the shop committee, and since has been elected to the shop committee, a man by the name of Perry. * * * s a But while we discussed those two names, as I remember those two names, I told them definitely that we had come to the conclusion that those two fellows were going to be suspended for activity in the plant. Of course, Matt Smith and the committee raised a lot of rumpus about that, and threats, and they were going to pull a strike, and they were going to do a lot of different things And I told them I couldn't help that, if we were going to resort to discipline it would have to be the way we saw it Now in that particular meeting it is true that the MESA shop Committee demanded that a lot of people had to be suspended, of fired, is what they were talking about I refused to consider that, and told them that we had to make up our minds whom we thought were the people that were causing this trouble. We were trying to reduce to the least number possible to establish the purpose se had in mind, and that whether they stopped the plant, or called a strike, or whatever they did, that was the only course that we knew how to take. Well, that meeting lasted for, oh; a matter of, maybe an hour. And I told them that in the course of the day, or the next day, as soon as the management could get around to it, we would definitely make up our minds who the people would be that were going to be disciplined ; that-at this particular meeting we (lid not definitely know. We were considering ninny, many more than the nine that were suspended There was a list, a long list of people that weme involved, and that we did not definitely know how many there would be, but that we would decide that during the day, and that we would proceed on this program of ours as soon as conditions would warn ant At the particular time that this was done, Mr Examiner, you must believe that we had very little or no way of determining just who was who as distin- guished from being a MESA member or a CIO member I must say again that many of these people belonged to both, and. take for example the case of Mr. Bosco, Robert Bosco here, I don't know now, I can only tell you what the attitude in the pl:nit was all during the time of his election, or this election we talked about It was common talk around through the plant that Bob Bosco was running for president of the MESA and was a member of the CIO Now, I don't know whether he was or lie wasn't We didn't know Many of these people we knew that had belonged to the MESA, and many oL them had had their dues checked off by the MESA, but that, in turn, sonic day would be wearing a CIO button There was some resignations coning in from the DIESA to be taken off of the check-off list, one day. and the next clay there would be another list brought back where they were to be put on it again. U THE CLEVELAND GRAPHITE BRONZE COMPANY 501 So that the whole point of that was that in our judgment, whether it was right or wrong, it turned out right or wrong, we believed that in this discipline there were more MESA members being disciplined, known MESA members, than there were CIO, for example. On returning from the meeting with Smith and the shop committee at Glen Smith's office, Young assembled the supervisors and there held lengthy discus- sions on the proceedings to follow and the selection of the persons to be subjected to discipline Each supervisor had a group of names to suggest. These were discussed generally by the assembled group and out of the 40 or 50 suggestions, it was determined that indefinite suspensions should be given to 9, employees, to wit: Sylvestci Felice. a production man in the Casting Department and at that time a member of the shop committee of MESA, who, a few days before had engaged in a heated altercation with Keavney, the assistant personnel director_ His suspension was recommended by Keavney because of this incident and was• a case of individual discipline hardly entitled to be included in the same group as the others selected; Erwin Perry, a miscellaneous operator in the Hot Metal Department, a member of MESA and an opponent of CIO whose status as all opponent also of the ruling MESA faction has been discussed ; Anthony Petrovick, then a tool crib attendant and who had been a foreman during the war period up to January 1, 1946: a former active member of the MESA; and a leader in employees' social and athletic activities, who joined the C10, became a charter member of the Local, actively and openly supported and solicited for CIO and prominently wore his CIO button from about the time they were distributed on or about May 19, 1946, up to the time of his suspension on May 24, 1946; Karl Ritter, a set-up man in the Thiinvall Department who had been an active CIO protagonist; Leonard Bosco, a set-up man in the Ford Department and an active, well known member of the C10 who has been such for a number of years- Bosco was a charter member of the Local: Ethel Harris, an inspector in the Ford Department, a member of the CIO and secretary of the Local; Samuel' Genshaw, a miscellaneous operator in the Bushing Department and an active member of the CIO; John Fafack, a set-up man in the Diesel Department, and an active member of the CIO; and Frank Galka, a set-up man in the Diesel De- partment, and an active member of the CIO. On May 24. 1946, the nine persons above listed were separately called into Young's office where they were advised that he intended to talk to them about their jobs, and that if they desired representation from MESA they were entitled to have it. Some of them accepted the suggestion but those who were members of the CIO found that the MESA representative refused to act in any of their cases Some of them refused representation, but in no instance did the person' appearing from MESA appear to be willing to take an active part in defending:. any of the persons named. As they were summoned, each one, except Felice,' was advised that he was being indefinitely suspended because his conduct had created disturbances in the plant and disturbed the harmonious relations of the em- ployees. He was then required to turn in his badge and be conducted back to his place of work by a guard, long enough to get his street clothes and be escorted off the premises. There is no material difference in the treatment accorded any of the nine named employees, except Felice, as noted. T Felice was advised that he was being suspended solely because of his altercation a day or two previous, with Keaveny. It is also to be noted that, although a shop committeeman, Felice had, on May 20, 1944 , signed and delivered a withdrawal of his check-off authoriza- tion, which automatically branded him as disloyal to MESA. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shortly before July 19, 1946, each of those who had been suspended on May 24, received a letter from Respondent advising him to report at Young's office on the morning of July 19 with reference to reinstatement. On that morning, in Young's office, in the presence of O'Malley, the president of the MESA, and Mickelbrink, chairman of the shop committee, they were interviewed individually and asked if they were interested in returning to work for Respondent. Upon answering in the affirmative, each was told that he must behave himself, do it good job, and devote himself exclusively to this work, and that with such an understanding he could go back to work on the following Monday, but that he would be under observation and on probation for t period until he could prove himself. Under these conditions, all the employees so involved returned to work and have not, since then, been interfered with. Obviously none of them re- ceived pay from Respondent for the period of suspension between May 24, 1946, and July 19, 1946' May 24, 1946, the clay of the suspensions, fell on Fiiclay. On the following Tuesday, May 28, the election to determine whether to set aside the previous Bosco election was held and resulted in a victory for the anti-Bosco side. This combination of the at least partial determination of the election squabble, and the summary suspension of the CIO employees and the dissident Perry on the preceding Friday, served to subdue much of the disorder that had been niter- fering with the operation of the plant. Many of the CIO adherents removed their buttons, and while they (lid not relinquish their adherence to that organiza- tion confined their activities to their free time On June 7. approximately 2 weeks after the suspensions, and when matters had apparently quieted down, the CIO-MESA fight again broke into the open, ,this time entirely piovoked by the MESA officials. At about 10 o'clock on the morning of that day, a group of MESA officers and committeemen, including Mickelbrink, most of the members of the shop committee, a number of stewards, and Robert Bosco who was an inactive observer, totaling approximately 20, zissembled in the lower end of the plant, some 700 or 800 feet from the office. Marching through the plant, they first approached Stephen Gall, a machine operator in the Diesel Department, where they demanded that he stop his work and accompany therm, without any explanation as to where they were going or why. The,gang then proceeded through the plant toward the office, stopping at the Bushing Department where they similarly approached Frank Landig, a checker Landing refused to accompany the gang but after having been shoved around some, told them that lie would not do so until he had first talked with his foreman He went to the foreman's office, told him that this group of men wanted him to go out with them and was told by the foreman that it would be all right for him to do so. From th ,^ Bushing Department the gang continued on in the direction of the office to the Thinwall Department where they simi- larly picked up William Saggio, a set-up man.' By this time the gang approxi- mated 25 persons made up almost entirely of the officialdom of MESA. They then marched through the Thinwall Department, through the entrance into the main office building which adjoins the Thinwall Department, into a corridor that parallels the front of that building, down the corridor to the side entrance, and there out into the grounds and through the gate, past the guard, and out to the sidewalk some 300 or 400 feet in front of the plant." This entire pro- 8 The loss of pay suffered by Felice and Perry was subsequently made up to each of them 'by MESA ° Gall, Landig and Saggio were well known as active CIO proponents. 10 The space between the plant and the sidewalk is in lawn. THE CLEVELAND GRAPHITE BRONZE COMPANY 503 deeding was carried on admittedly in the presence of John McKinley, superin- tendent of the Thinwall Department, and obviously in the presence of the other supervisors and foremen in the departments affected. This observation is based on the fact that the entire floor of the main plant is unobstructed by partitions or cumbersome machinery, except occasional tool cribs It is almost unheard of for a group of men that large to be walking through the plant together during working hours without attracting a widespread attention Some of the wit- nesses produced by Respondent testified that this incident caused no commotion ,and in' no way interfered with operations of the plant at the time. Other credible witnesses testified that as the gang proceeded through the plant, opera- tions ceased while the other employees looked on and followed the movement of the MESA group. Under the cii cumstances, that would be normal human behavior, especially in a plant where such a large number of people are employed in close proximity to each other and where there had been, over a period of several preceding months, the heated controversy between the CIO and the MESA adherents that marked the strife in the plant during January, February, March, April and May. I credit the latter testimony. McKinley testified that as soon as he observed the incident from his office, which is an elevated struc- ture in the center of the Thinwall Department, he called Young at the latter's office and advised hint what was going on. Young testified that the message came to him after the gang had left the plant and while they were still on the sidewalk in trout. Young's testimony as to what happened, from the standpoint of Respondent, is as follows : Well, the first question when I definitely had to go into action was when I was informed that the muscle men wouldn't let them come back into the plant. And not being silly enough to want to start a riot, right on the side- walk in front of the plant, I told them to call the locker room attendant, have him identify the particular people that had been ejected, and get their clothes out there to them, so that they would be iespectably dressed, and hold everything until I had an opportunity to meet with the group that had carried on the ejection, or at least talk to the shop committee and the Union officers. Q How soon did you talk to them'? A Perhaps 7 minutes after the action took place. I located Mr Keaveny (the assistant personnel director) and sent him out, he picked up a couple of guards and brought the shop committee into my office. Q. And what (lid you say to them? A. I told them in no uncertain terms that we would absolutely not stand for any action like that, even if we had to double our force, or call in the city police in the future. And that if anything like that happened in the future we would not be responsible for our living tip to oui contract. Q. Did they at that time indicate that they would refrain from any such activity in the future? A. They said there would be absolutely none of it in the future. and that is a matter of record. Q. Now, then, did the three employees who had been ejected attempt to come back into the factoiy that clay? A They (lid not. Thel were given the message that they could come back iiuiueduitely Trial Examiner DEN AJr. Just a moment. Who gave them the message? The WIT'IESS Mr Staik of the N. L R B. gave them the message. 504 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD Q. (By Mr DILL.) How did he do that? A. He called and said they were sitting in his office. From the standpoint of those actually involved, what happened was that after the gang had taken the three CIO adherents down to the sidewalk, there was considerable argument of which the following, taken from the testimony of Gall, appears to be typical: And then the group got around me and these other two gentlemen, and Patsy Severo said to Mr. Saggio, he said, "I told you about wearing thato button." He said, "I warned you several times," and he said, "You didn't take it off. Now we got you out here and we throwed you out of the plant, and we want you to stay out." Q. Did Bill say anything? A. All I heard Mr. Saggio, he said, "Others are wearing CIO buttons in there, too. Why pick on us?" He said, "We are going in there and throw the rest of them out bodily." * * * * * Q. Do you recall anything else that was said? A. Yes. They told us if we ever tried to go back in there again, that they would bust our heads for us. The ejected employees requested permission to return to the plant and get their street clothes, but by that time the guard bad appeared on the scene and volunteered to go after them. The MESA crowd then returned to the plant and in due course, the guard and some of the others brought their street clothes to the evicted employees. This was sometime after 10: 30 in the morning. When the men were left on the sidewalk in front of the plant, two of them went to a nearby tavern and attempted to get in touch with the CIO representa- tive, Steve Sabo, by telephone. After some delay they returned to the third man who had remained in front of the plant and advised him that Sabo had instructed them to go to the office of the N. L R B. in downtown Cleveland and report the incident" The riding time from the plant to downtown Cleveland by streetcar is about 30 minutes. The three evicted employees stopped for lunch, one of them going home, and thereafter proceeded to the Board's office where they conferred with Field Examiner Stark. After being advised of the situation, Stark called either I eaveny or Young and after some conversation, was assured that the men could return to work immediately and would be fully protected from molestation while at their jobs. Since the men could not have reached the plant and resumed work by 3 p m., the end of the day shift, they did not report back until the next morning. Since then, they have continued at their work without disturbance. Following the eviction, Young called Mickelbrink and some of the shop com- mittee members into his office. He took no disciplinary action against any of them, however, and let the matter drop on their promise not to do it again. His testimony on this aftermath of the evictions, and that of Glen O. Smith, seems to unfold much of Respondent's general reaction to the place MESA held in Respondent's scheme of things. Young testified : Q Did you personally make the decision, Mr. Young, not to take any disciplinary action against the muscle men that were responsible for this? 11 By this time, the original charge herein had been filed for about 10 days and Re- spondent had been advised that the situation at the plant was being investigated by Field Examiner Stark of the Board' s staff in Cleveland. THE CLEVELAND GRAPHITE BRONZE COMPANY 505 A Yes, sir Q Why•> A Why, it was the whole shop committee , the national officers and the President of the Union Q. Who was that A Bosco at the time. Q Was he in this group of Wien that did this? A I have heap d he was . I didn't observe hint. And I don't think anybody would deliberately throw every Union official out of a plant in which they had a contract. Q Well , did they indicate that they would not do that again and would allow these three men to come back? A I had all the assurance in the world they would not, and I believed them. Q And what other factors were there that determined your course of conduct with reference to discipline with the shop committee generally? A Why incite a riot? Why cause trouble? Why ask for another fight? There were more than the shop committee, there were all the official group of the Union , I understood afterwards , that Keaveny reported to me, that was taking action in this thing Q What did you say to them? A I told them that we were not going to tolerate strong arm tactics, even if we had to double our force and call in the city police . The people had a right to protection of their jobs, and we were going to see that they got it. And I wanted some assurance on whether they were planning to continue it. But they had threatened it, had been continually threatening it since the first of the year. And at one time we did alert everyone , but it never went through . This time they were smart enough not to let it leak out. While Glen Smith was under examination by the Trial Examiner the follow- ing took place: Q. (By Trial Examiner DENHAM.) Now, then, I want to ask you one very pertinent question which follows up the statement you made a little while ago , that "Fellows, if this discipline doesn 't correct it, we are going to do something else." Why was there no disciplining done to the men who escorted these three men out on the 7th of June? Their identity was well known, and they were some of the outstanding leaders in the Union and the shop committee. A. We thought we had done all we should do We didn 't want to create any other trouble, and we thought we had stopped it. They agreed to stop anything like that , and just let that thing alone. You could do a lot of things about things like that from hindsight. But we just felt-I will be frank about it, that we just had overlooked a lot of things that had been done. Q. But you had decided you were not going to overlook any more. You were going to be hard-boiled . And you had suspended nine men within two weeks previous. A. That is right, but the production in the plant had settled down a whole lot, and things were better than they were, and getting better. I think that our action on that particular thing has proved that perhaps our course was well taken , because we have bid no re-occurrence of anything like that. And we have had comparative peace and quiet there. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q Might I suggest this • Weren't you just a little bit afraid of what Matt Smith would do if you fired some of his top men for participating in that June 7th incident? A. Yes, I will tell you frankly. There is no question where you have got a Union in your plant, where you have got a contract with the Union, and you have had it for some time, no management likes to, well, just spit in the lion's face, so to speak, and fire top ranking Union officers. The fact of whether you are right or wrong isn't the answer. Being right is prob- ably the worst defense you have got. While Young was on the stand, a similar question was put to him by the Trial Examiner. Q I am going to put the same question to you, Mr Young, that T did to DIr Smith yesterday, which you may or may not be able to answer or which you may or may not care to answer. Did the fact that you were fearful of what the :MESA might do to your plant in your operations if you disciplined their shop committee leaders for their participation in the June 7th episode weigh heavily as a factor in your decision not to discipline them? A It was the determining factor. Factual conclw.ions While there are other matters involved in this case that will be dealt with subsequently, the foregoing provides the foundation of the major issue There is no scintilla of evidence of bad faith, in a literal sense, on the part of Respondent, nor is there a suggestion of opposition by it, to organization of its employees for purposes of collective bargaining. Because this is so, and because the question arising here is one that grows out of a fairly familiar and not unusual "business man's problem," some analysis of the motivating factors that led to Respondent's actions, and the effect and status of such factors in the eyes of the law, is indi- cated Comment on and detailed analysis of the facts heretofore set out ale hardly necessary There is little or no conflict on the factual situations They are clear-cut, and the reasons for them have, in the main, been given by those involved, in a frank and open fashion It remains only to determine the effect of these happenings in the setting where they occurred, when measured by the provisions of the Act Respondent has achieved a place in Ameiican induatiy whereby its products have become one of the keys to our economic progress. Without its products, few pieces of automotive equipment can be completed. Its plant and equipment are of the most modern design and its general relations with its employees ap- pear to be on a high level with a turnover of employees that is extremely low As is true in all major industries, especially in these days of recovery from the u-ar paralysis, capacity production of the plant as a whole, and maximum efh- cieucy on the part of its employees, are its major objectives The record discloses no serious complaints by the employees as a whole, and reflects a studied promo- tion by Respondent of the welfare of the employees through its support and encouragement of the various social and athletic organizations, and the mainte- nance of an incentive bonus system of pay which appears to be satisfactory to all concerned In short, from all the economic standpoints, Respondent operates in the not unjustified belief that it cannot afford to be subjected to a work stop- page, not only because of the effect on its immediate operations, but because of its effect on the economy of the Nation. But, because Respondent has so con- THE CLEVELAND GRAPHITE BRONZE COMPANY 507, ce itrated on the problems of sustained production and individual efficiency, it seems either to have lost sight of or been unable to reconcile its own concept of its requirements, with the broad statutory rights of its employees to enjoy, unhampered, the privileges of freely choosing, and changing if they so desire, their representatives for purposes of collective bargaining Because interfer- ence, either direct or permissive, with this right, has been found by Congress to give rise to labor disputes which interfere with commerce between the States or the free flow thereof, employers have been charged with an extraordinary responsibility to see that nothing over which they have or should have control, is allowed to interfere with, restrain, or coeice their respective employees in the exercise of their rights guaranteed in Section 7 of the Act, fully, freely and without fear of reprisal Tn this case, Respondent, without malice toward CIO, has fallen short of the responsibilities imposed on it by Congress I am convinced from the testimony of Respondent's two principal officials who dealt with this situation, notwith- standing their protests to the contrary, that they knew they were failing in this responsibility when they carried out the May 24 suspensions, and when, following the June 7 evictions of CIO members by the officers and shop committee by MESA they failed, notwithstanding the May 24 decision to deal severely with the disturbing element, to take any disciplinary action toward the participants of that inexcusable conduct, but that they could find no alternative that was consistent with ni,iintenance of production. Under the conditions as they had been allowed to develop over the J eai s, theie probably was no alternative but that still does not excuse them. For about 14 years, Respondent has dealt with its employees through MESA as their exclusive bargaining representative. Under Matt Smith's leadership, sev- eral strikes have occurred. None of these, so far as the record discloses, were the outgrowth of unfair labor practice charges. Whether they were based on other justifiable grounds is likewise not reflected nor is it material, but it is obvious: (1) that in early 1946, and as late as May 23, 1946, MESA, without a closed-shop agreement, was demanding that Respondent protect it against CIO by discharging the CIO adherents; (2) that MESA was threatening violence toward CIO pro- ponents, and strikes against Respondent if Respondent should fail to abate the 0CIO threats; (3) that production and even the operational organization structure was being.threatened by the controversy within the plant, and (4) that Respond- went was faced with a threat of a strike by MESA, which it believed would follow, if, in attempting to restore order, it should visit discipline on any of the MESA leaders who were aligned with the controlling faction in that organization. These conclusions inevitably flow from the testimony of Glen O. Smith and Merrill Young heretofore set out. How the list of 40 of 50 "troublemakers" who weie under consideration at the May 24 meeting of supervision for disciplinary action, was reduced to 9, and how the 9 persons selected for suspension on that day were picked out, is not known.1i 12 A description of the proceedings of this meeting and production of the list of those whose navies were suggested and then discai ded was objected to by counsel for Respondent when this line of inquiry was approached by the Trial Examiner in questioning \lerrill Young Counsel for Respondent insisted on standing on the record as made with reference to the nine actually suspended, on the giound that to ieveal the names of those who were considered for discipline and ultimately rejected, would only cause further trouble at the plant The Trial Iixaumner announced that, if Respondent elected to waive the possible benefits to be derived from such revelation , lie felt the recoid was then sufficiently complete to allow a disposition of the question involved in the suspensions , and sustained the objection. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But the structure of the list is, of itself, confirmation that the same factors gov- erned its make-up that admittedly governed the decision not to discipline the shop committee and officers for the parts they played as members of the "goon squad" that evicted CIO adherents during working hours on June 7. Boiled down to its essentials, this case becomes an epitome, with some incidental but not essential variations, of the rule that has been consistently followed by the Board, and sustained by the courts since the case of Star Publishing,Co., 97 V. (2d) 465: "The Act prohibits unfair labor practices in all cases. It permits no immunity because the employer may think that exigencies of the moment require infraction of the statute. In fact, nothing in the statute permits or justifies its violation by an employer.13 That the employer may feel that compelling economic circumstances require him to bow to the intimidating demands of a labor organization, in order to prevent action by that organization which well might paralyze a whole essential industily, is not enough if in so doing the unqualified mandate of the Act is violated. This might seem to some observers an unrealistic situation, but the Act as it has existed since July 5, 1935, contains no provision for exceptions to its terms, and the Board is powerless to create any. It "permits no immunity because of undue hardship or economic pressure imposed on the employer. It leaves no room for the appeasement of hostile interests. . . . Congress has, by this Act, placed the economic value of the right of employees freely to choose a representative for purposes of collective bargaining, and to bargain with their employer through such representative, in the topmost bracket of importance. It has preserved the right to strike, without reservation, and it has subordinated all other economic values to these rights. So long as this is true, business considerations provide no excuse for treating any employee with discrimination, either on the employer's own motion or under pressure from any other source, because of his membership in or activity on behalf of any labor organization, to discourage such membership or activity, or to promote the welfare of any other organization. Here, however, Respondent has done exactly that. Without further analysis, the facts spell out their own conclusions The in- clusion of Felice and Perry, known to be MESA men, among those suspended, fails to add anything of non-partisan authenticity to the list Felice, already under suspicion in MESA by reason of his withdrawal of his check-off authorization, was suspended for personal misconduct not related to the alleged causes of the other suspensions. Perry had branded himself as a disturbing element within MESA, who had become obnoxious to the controlling faction. Neither of these was "persona grata" to MESA Disciplining them involved no risk of incurring the displeasure of that organization, and the fact that all the others were CIO, people speaks for itself. From all these facts, theretore, it is found that, on May' 24, 1946, and continuing through July 19, 1946, Respondent suspended and! refused to reemploy Leonard Bosco, John M. Fajack, Karl Ritter, Frank B. Galka, Anthony Petrovick, Samuel Genshaw and Ethel Harris because of their membership in and activity on behalf of CIO, to discourage membership in that 13 See also McQuay-Norris Mfg Co v. N. L. R. B, 116 F (2d) 748, 752 (C C A 7), cert. den 313 U. S 565 See also N L R B v Isthmian Steamship Co, 126 F (2d) 598, 599- (C C A 2) ; N L R. B. v John Englehorn Sons, 134 F (2d) 553, 557 (C C A 3) ; South Atlantic Steamship Co. v. N. L R. B., 116 F (2d) 480, 481 (C C A. 5), cert. den 313 U S 582; N. L R B. v Gluck Brewing Co, et at., 144 F (2d) 847, 853 (C C A. 8) ; Warehousemen's Union v N. L. R B., 121 F. (2d) 84, 87 (App D C.), cert. den. 314 U. S. 674, N. L. R. B. v. National Broadcasting Company, et al., 150 F. (2d) 895 (C. C. A. 2). THE CLEVELAND GRAPHITE BRONZE COMPANY 509 organization, and in appeasement of and to encourage membership in MESA, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. And it is further found that on June 7, 1946, Respondent discriminatorily inter- rupted the employment of Stephen Gall, Frank Landig and William Saggio, by knowingly permitting officials and shop committeemen of MESA to evict them from Respondent's plant in the presence of responsible officials of Respondent; by failing to halt such eviction; by falling to permit the evicted employees to return immediately to the plant for any purpose; by approving such eviction by sending the evictees' clothing to them while they were still on the street in front of the plant and readily available £oi recall, and by failing and refusing to discipline the officers and shop committeemen of MESA who effected the eviction, for fear of offending MESA and incurring possible reprisals to itself from MESA, thereby further interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. Aid and assistance to MESA The complaint charges Respondent with contributing financial support to MESA, and otherwise assisting and supporting that organization. There is no evidence in support of this allegation beyond the fact that on January 1, 1946, Respondent and MESA entered into a contract for a period of 1 year from that date, and thereafter, in connection with some previously anticipated wage negotiations, entered into a supplemental agreement on June 17, 1946, providing for a general wage increase of 10 cents per hour and extending the expiration date of the original contract to July 1, 1947. When the January 1, 1946, contract was negotiated, general wage increases throughout the industry were indicated, but at that time no general basis as to the amount of such increases had been fixed. In the January 1, 1946, contract, provision was made for an increase of 10 cents per hour. At the same time, MESA and Respondent had an understanding that when a general basis should be established, negotiations would be undertaken to discuss further wage adjustments. When the general 181/2 cents per hour policy was announced , such negotiations were opened but were interfered with by the disturbances in the plant that have heretofore been dealt with. After the situation quieted down, Glen O. Smith had several meetings with Matt Smith which resulted in a further increase of 10 cents per hour, which brought the total increase to 11/2 cents more than the approved 181/2-cent policy increase. This excess was due to the fact that Re- spondent figures its pay rates in multiples of 5 cents. To accommodate this system, it absorbed the 1112 cents and put the full 10 cents into effect, notwith- standing the Wage Stabilization Board would approve only 81/2 cents of it for purposes of price increases. Glen O. Smith testified that in these negotiations, Respondent desired to really stabilize its wage stilucture and to fix it so that it would be free of fuxthex demands for a reasonable fixed period. One of the reasons for exceeding the WSB approval of 81/2 cents was to "buy" such assurance. The extra 11 cents, according to him, was one of the considerations to the MESA for binding itself to the new rate for a full year. The extended contract was in fact a benefit sought by Respondent. Smith further testified that he never thought of the extended contract as a bar to other proceedings and did not so regard it 14 14 These findings are based entirely on the credited and uncontroverted testimony of Glen O. Smith who negotiated the entire transaction on behalf of Respondent. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In all the circumstances, the extension of the contract for 6 months does not have the earmarks of an unfair labor practice It rather is what Smith said it was-a businessman's effort to stabilize and fix his wage structure and to prolong, as long as possible, the time when the union would be asking for more revisions No question of representation is present here, and whether the con- ti act as extended would bar representation proceedings is not involved, although Smith's testimony on the subject would seem to foreclose Respondent from any position in which it might urge such a bar. It is found that Respondent did not contribute financial or other support to MESA other than as such aid and .support might he read into the other acts herein found. The discharges Fl,m en.ce Ksiet, age 19, began her employment with Respondent in November 1944. In August 1945, she was laid off for a short period and recalled in September 1945, remaining on the job until the strike in the late fall of 1945 In January 1946, she was again recalled and during the same month was again laid off. These breaks in her employment were all incidents of work shortages except that the lay-off in January 1946. was necessitated by the fact that she .had been employed on one of the night shifts and that about that time, the State of Ohio revived one of its regulatory laws which prohibits the employment of women under the age of 21 after 10 p m or before 6 a in. This law had been suspended during the war period but was restored in December or January of this year On June 14, 1946, Kmet was again recalled and put to work on the day shift During her employment with Respondent, Kmet had not joined MESA. During her lay-off between January 1946 and June 1946, she had obtained employment .it the General Electric plant in Cleveland and while there had become a member of the CIO. When she returned to Respondent's plant in June 1946, she joined the 010 at that place and wore her button openly According to the contract entered into by Respondent with MESA on January 1, 1946, as it was construed by the Company, seniority of the employees accrued from the date of their first employment through all necessitated lay-offs, and could only be broken if the employee should quit, be discharged for cause, be absent for 3 working days without notifying Respondent, fail to report for work within 5 days of notice to return, fail to return at the expiration of a leave of absence, or in the event a period of 1 year should elapse following a lay-off with- out recall. For the first 18 months of such employment, seniority was computed on an occupational basis within the employee's own department Where the employment has exceeded I8 months, the senior ity is figured on an occupational basis throughout the entire plant. By August 1946, Kmet had acquired more than 18 months of seniority. In her department she had been employed as "miscellaneous operator" operating the particular type of milling machines, drill presses, and boring machines that were peculiar to the operations carried on there. On or about August 2, 1946, it be- came necessary to make a reduction in force in Kmet's department. Because of her age she could not be transferred to any job on either the second or third shift, and consequently was left with only the day shift to look to for transfer, ,either within her department or elsewhere. A transcript of the seniority records of all the female employees in the bushing department where Kmet worked, re- flects that all of those employed on the first shift in that department enjoyed substantially more seniority than Kmet and that consequently there was no place THE CLEVELAND GRAPHITE BRONZE COMPANY 511 in that department where she could be employed. With reference to Kmet's seniority, it is the credible testimony of Merrill Young, Personnel Director and former Works Manager, that from an occupational standpoint, Kmet could not qualify for jobs in other departments of the plant without special training to adapt herself to machines used in such other departments, and that for that reason, so far as he knows, no search was made for other positions within the plant to which she otherwise might be entitled under lier seniority standing, as- suming her to be competent to perform in such other departments. There is some testimony that one of the stewards of the MESA, on seeing Kmet wvearing a CIO button, remarked about it and told her that because of her youth she would not be able to retain very long a job on the first shift with as little seniority as, she had. This is the only testimony which even remotely points to a conclusion that Kmet's lay-off on August 2, 1946, was the outgrowth of anything other than pure lack of seniority In no event, however, is this sufficient to justify a'finding that is contrary to that contended for by Respondent. Kmet admittedly is an excellent operator. It is therefore found that Kmet was laid off on August 2, 1946, in a routine lay-off, because of her inability to qualify for employment on any shift other than the first shift, and because of her lack of seniority suffi- cient to retain her on the employment list on an occupational basis in either the bushing department or any other department of the plant, and that the lay-otf was accomplished with no discriminatory intent. William E. Bagshaw was discharged on August 22, 1946, for violation of the Company's rule against commercial gambling within the plant. He was found by his department superintendent, McKinley, in the act of selling a policy ticket on it numbers game then being conducted illicitly within the city of Cleveland. When he was discovered making this sale, the numbers sheet and the policy ticket were confiscated by McKinley and Bagshaw immediately taken to the personnel manager by whom he was peremptorily discharged For a number of years, one of the substantial problems with which Respond- ent has had to contend among its employees had been commercial bookmaking on horse races and the sale of numbers tickets on behalf of various gangs in Cie'-eland who have been engaged in the numbers racket. The law of the State- of Ohio makes it a crime to sell tickets on raffles, lotteries, etc., or to take bets on races and other similar events where this is done for profit; but legitimatizes raffles, lotteries, etc, where they ate conducted for charitable purposes, and without profit to the person who conducts them Respondent consistently has permitted, and in fact, encouraged, pools based upon the scores made by their various bowling teams, which yield profits that go into the treasury of the bowling club and are used for sending the teams to various inter-city contests, and other similar purposes ; and takes a like position with regard to raffles, lotteries, etc, for the benefit of some of the other organizations, but as consistently has forbid- den the commercial operation of books to take bets on horse races, or the sale of numbers tickets, or other similar gambling devices which notoriously are con- ducted for the profit of operators who carry on their business without the pale of the law Discharges for this cause have not been numerous, but, from the records which were produced, it was disclosed that there have been several such discharges within the past few years. Young testified, and his testimony is credited, there have been several cases when such conduct has been suspected but not proved and no action taken, and that discharges have only been resorted to where the employee has been definitely caught in the act of violating the rule, and has either admitted it or has been caught under such circumstances as- afforded undeniable proof of his conduct. In the case of Bagshaw he was deft-- 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mtely caught in the act of making a sale of a policy ticket, and admitted it to both McKinley, his superintendent, and to the officials of the personnel office. The fact that Bagshaw was a member of the CIO does not appear to have any bear- ing on the fact that he was disciplined for this breach of the company's rules. He knew that it was contrary to the rules and that he was committing an illegal act at the time. I am unable to find any basis for a charge that Bagshaw was treated discriminatorily, but on the contrary find that the conduct of Respondent was entirely in harmony with good employment principles and pursuant to the well known rule of the company against this type of gambling. Robert Bosco was first employed by Respondent in 1934 and remained in that employment continuously thereafter, except for interim lay-offs because of slack work, until his discharge on August 23, 1946. At the time of his discharge he was a press operator. It will be remembered that Bosco was the person around whom the very serious election controversy in April, May and June revolved, in the course of which he became bitterly embroiled with the Mickelbrink faction which was then and still is the controlling faction of MESA in the plant. During these months, and up into July 1946, Bosco consistently repulsed the efforts of his brother, Leonard Bosco, to abandon MESA and align himself with the CIO. It was not until after his election as president had been set aside and a new election conducted in which he was defeated, that he did so. In going over to the CIO, Bosco, who had become a well known character in the plant, not only through the election con- troversy, but through years of service in various capacities on the Advisory Board and as a steward for MESA, became the target for many attacks by MESA. A typical one is found in the August 1946, edition of the "EDUCATOR," which appears to be a publication coming out of the national office of MESA. The front page of this paper contains a long and bitter attack on the attempts of the CIO to carry on its organizational work, and a bitter attack on Bosco, of which the following is an excerpt : We understand that "Judas" Bosco waited for the election returns and, when he found he had been ousted by the vote of his co-workers, this miserable traitor ran crying his eyes out to the CIO who gave him a crying towel and promised him a great big office of his own and two streamlined secretaries if only he would rat on the MESA. Billy Boscoe fell for their nonsense, hook, line, and sinker, and the DMESA's opinion of this transaction is "good riddance of bad rubbish." It's probable that he is now low enough to meet the standards of the Communist-ridden CIO in Cleveland. Bosco, with a record of continuous employment extending over 12 years, does not appear to have been an outstanding employee insofar as efficiency was con- cerned, but, on the other hand, such complaints as were directed to his work fail to indicate that he was an unsatisfactory employee at any stage during his stay with Respondent, or that he was not as good as or better than average. In justifying Bosco's discharge, Young testified that Bosco was one of the most unsatisfactory employees Respondent had. He was unable however, to recon- cile this with a continuous history of 12 years of employment, and when called upon to describe the unsatisfactory character of his performance, mentioned only two incidents, both occurring since the middle of 1945. One had to do with the fact that while at his machine, Bosco had put more pieces in the pan for finished articles than he was supposed to, thereby creating a heavier load which made it inconvenient for the person who shifted the pan to the next operation. The other incident had to do with a complaint made by Bosco when he had been THE CLEVELAND GRAPHITE BRONZE COMPANY 513 shifted from his regular operation to another one which did not permit him to accomplish the same amount of production and therefore participate more heavily in the incentive bonus This complaint was not that he had been shifted, but that when the machines of the character lie had originally operated were put back into operation, another man was returned to the former operation before Bosco, notwithstanding the latter's greater seniority. Bosco himself testified that on one occasion he had been criticized because of having made an excessive amount of scrap while running a given piece through his machine. These con- stituted the only incidents reterred to by anyone in connection with Bosco's work. They are not imps essive as support for the statement that the work and conduct of this employee with a 12-year work history, was so unsatisfactory as to call for his discharge. The incident that gave rise to Bosco's actual discharge occurred when one of the other employees, a Bohemian woman, Mrs. Mary Linhart, was taken off her regular job and placed on an operation at a machine not far from where Bosco worked Linhart apparently is an expert operator of that machine and also well acquainted with Bosco and the other older employees. On the day in question, the article in the "EDUCATOR" above quoted, had been recently published: As Bosco passed Linhart at her machine in the latter part of the shift, they entered into a conversation in which Linhart commented on the article and criticized it. While they were talking, another worker, one Seeman, approached them. While Bosco and Luiliart were talking and as Seeman approached, Bosco asked Linhart how many pieces she expected to put out that day, and mentioned the sum of 20,000. Luiliart replied that she did not think she would get that many, but that she had to make 16,000 to qualify for participa- tion in the incentive bonus At about this time, Seeman reached Linhart's machine, looked at the counter which registered the number of pieces made, .and began criticizing Linhart for doing too much work In substance, Seeman's remark was "What is the matter with you? Are you so `hungry' that you won't even go to dinner."" As Seeman made this remark, Linhart, who is a highly nervous and lacrimose individual, and who apparently is also extremely sensitive about her Bohemian ancestry, began to cry, whereupon Bosco berated Seeman for his comments to Linhart, saying, "You got a lot of nerve, you hungry Bohunk, talking. You think you're doing so much more than anyone . . . I'm serv- ing you with bearings and all I can do is keep up with you." With this, Bosco left Linhart and returned to his own machine Linhart's testimony concern- ing this incident does not vary greatly from that of Bosco except that she testified that after Seeman had accused her of being "hungry" and she had started crying, Bosco said to Linhart, and not to Seeman "Look it, he is hungry, I can't even keep up with him, he is a hungry Bohunk." 16 It was Young's testimony that Bosco had been discharged because he had abused Lin- hart, but neither Bosco's nor Linhart's testimony supports this The most that can be said is that Bosco used this term "bohunk" in Linhart's presence, re- ferring to Seeman. On this, note the following from Linhart's testimony : I had my head down I don't know. 1 felt that he said it to me, because I am Bohemian, and Seeman is not Bohemian I know that Bosco wouldn't like it if I said "hungry dago" he wouldn't like that either. 15 The general testimony indicates that when the workers want to criticize anybody for paying too close attention to his job and turning out production substantially in excess of average, they call him "hungry" which is tantamount to accusing him of "killing the fob " 11 The term "Bohunk" appears to be a term applied to persons of Bohemian origin, appar- ently falling into the same class as "dago ," sometimes applied to persons of Italian origin. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD So, I asked Ed, my set up man, I said, "Please don't put me on that lot. I don't want to work here anymore" I said, "I don't want to work with this man over here." The next clay they asked Ed and me to go on that job again, and I said I didn't want to work up there They asked inc if I had any trouble, so I told them what happened. Following this incident, as Linhart testified, she told Swift, the superintendent of the Ford Department in which the operation was being carried on, that she did not want to return to the job she had been performing the day before, and recited the occurrence substantially as above set out, accusing Bosco of having deliberately insulted her by using the word "Bohunk" in her presence when re- ferring to Seeman who, according to her, is not a Bohemian Swv ift summoned Bosco to his office, accused him of having upset one of the other employees and told him that lie was going to discharge him because of it. Bosco insisted on taking the matter to the personnel office where lie saw Young and Keaveny along with Swift While there, Young and Keaveny revived the incidents pertaining to the time when Bosco had made a grievance out of the transfer above referred to; and accused him of having created a disturbance among the committee and the stewards, obviously referring to the election incident which gave rise to the general disturbance throughout the plant earlier in the year, as a part of the reason why the Linhart complaint warranted his discharge Although Bosco explained it was Seeman who had caused the disturbance with Innhart, and in- sisted on getting the incident "straightened out," this was denied him. Young and Keaveny insisted that his iecord was had, and that, on the basis of his over-all record, he was being discharged This ended Bosco's employment with Respondent. Seeman was later put on suspension foi 30 clays for his part in the affair, and allowed to apologize to Linhart for his conduct. While it is not the function of the Trial Examiner , or, as I understand it, of the Board, to attempt to evaluate the quality of the judgment exercised by manage- ment in dealing with its employees, it is, it seems to me, our duty to examine such incidents and, where the circumstances are such as to reflect substantial arti- ficiality or arbitrariness, to then weigh the entire picture in its over-all setting to determine whether, or to what extent, the activity of the affected employee in connection with organization for purposes of collective bargaining, may have played a part in the determination of the employer to discharge hint This case seems to present such a situation. The chaotic condition existing in the plant in Apiil, May, and June of i040, arising, in part, from the election Controversy in which Bosco was the central figure , has been heretofore dealt with. The vicious attitude of the controlling faction in MESA toward anyone who seriously interfered or threatened to inter- fere with them, likewise has been described, and the subservience of Respondent to MESA has been found to have been the foundation stone for the suspensions of May 24 and the acceptance of the evictions of June 7, in connection with which no discipline was visited upon the perpetrators. There is no evidence that Bosco's discharge had ever been demanded by MESA, but the article printed in the August edition of the "EDUCATOR," which came out about a week prior to Bosco's discharge, was ample notice to Respondent of the disfavor with which MESA regarded him This article was a notice by MESA to Respondent that Bosco constituted a serious potential future troublespot in the plant, when viewed in the light of the CIO-MESA controversies that had culminated with the suspenions and the evictions heretofore dwelt upon. THE CLEVELAND GRAPHITE BRONZE COMPANY 515 The period between June 7, 1946, and August 23, 1946, when Bosco was (fs- charged, appears to have been one of comparative quiet within the plant, but it was obviously of the nature of an armed truce in which neither side volun; tarily receded from any of the ground they previously had gained. When the "EDUCATOR" article appeared, it put Respondent on notice that the fight was in danger of breaking out anew. Bosco's antipathy to the MESA, as reflected by, his abandonment of it and his affiliation with the CIO, was well known. As in the case of the consideration given to the suspensions in May, and the failure to discipline for the evictions in June, Respondent was aware that one way to minimize the possibility of the development of further disorder would be the elimination of anyone who threatened to again become the storm center of an inter-union fight within the plant. The situation admittedly was still highly explosive, but only MESA was in a position to really damage Respond- ent's operations while the elimination of Bosco could be objectionable only to Bosco himself and the CIO. This reaction on the part of Respondent toward Bosco was reflected in the conversations he had with Young and Keaveny at the time of his discharge, when they cited as evidence of his undesirability the disturbances in the shop committee and among the stewards within the shop generally which he had caused in the past While this reference was not clarified, it obviously could have gone back only to the situation that had existed during the early months of the year when Bosco was the center of the election controversy. The circumstance on which Respondent immediately based its discharge on August 23, that is to say, the fact that when he had reprimanded someone in Linhart's presence, and called him a "bohunk," this was taken by Linhart as a personal offense because she herself was a Bohemian, and the fact that he was not permitted to apologize to her or to explain the situation, is entirely too flimsy, when viewed in the light of ordinary personnel experience, to provide justification for the discharge of an employee with an unbroken record of 12 years' work which had been better than average and reasonably satisfactory I find it impossible to accept this as the true reason for Bosco's discharge, but find that when the circumstances are reviewed as above set forth, it becomes obvious that Bosco was discharged in order to remove a potential troublespot that bad arisen from Bosco's abandonment of MESA, and his affiliation with CIO Under such circumstances it is found that Bosco was discharged on August 23, 1946, not because of the unsatisfactory character of his service, or because of the Linhart incident, but because of his membership in and activity on behalf of the CIO, and to avoid offense to MESA, thereby discriminating against him and dis- couraging membership in the CIO and encouraging membership in MESA and that by so doing, Respondent has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. Interference, Restraint, and Coercion The complaint conhains the allegation that Respondent has urged, persuaded, and ordered its employees to join and continue their membership in MESA, and to assist and support said organization; that Respondent had questioned employees with reference to thew membership in and activity on behalf of CIO and that Respondent had advised, urged and warned its employees to refrain from becoming members of the CIO or from engaging in activities in behalf of that organization There is no substantial evidence of any direct conduct on the part of Respondent that is in line with either of these allegations In- ferentially, however, the conduct of Respondent that has been heretofore de- 766972-48-vol 75-34 .516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scribed had the effect of -urging, persuading, and of practically ordering em- ployees to continue their membership in MESA and to assist and support that organization, and to advising, urging, and warning them to refrain from be- coming members of the CIO, or from engaging in activities on behalf of such organization. It is not my understanding that where the general course of conduct of an employer is such as to have the effect of such warnings, urg- ings and advice, it is necessary that direct proof be made of written or spoken words of such warning, urging or advice, but that the acts alone are suf- ficient proof to support such allegations. It is therefore found that by the conduct heretofore described, the Respondent has, in effect, warned, urged, persuaded, and ordered its employees to join or continue their membership in MESA, and to assist and support that organization; and has advised, urged and warned its employees to refrain from becoming members of the CIO, and from engaging in activities on behalf of that organization, and that by so doing, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. I find no substantial evidence that Respondent has questioned its employees with reference to their membership in and activities on behalf of the CIO, other than in the form of casual conversations between some of the employees and some of their very immediate supervisors in which such topics might nor- mally arise The activity of the CIO was so open and the memberships and affiliation of the employees so generally evidenced by the presence of CIO but- tons throughout the plant, that to impugn the motives of any such conversa- tions, and to give them a coercive effect under all the circuinstaices as they existed in the early part of 1946, would be unjustified IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in Section III, above, occurring in connection with the operations of 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 thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The seven persons named in the complaint and herein found to have been discriminatorily suspended on May 24, 1946, have all been reinstated as of July 11l, 1946, and, except for such as might have voluntarily terminated their employment with Respondent, are still so employed and have suffered nothing as a result of such suspension other than the loss of pay they would have earned during the period of suspension It will therefore be recommended that each of such seven persons be made whole for all loss of earnings they experienced between May 24, 1946, and July 19, 1946, less their net earnings " if any, during such period. i7 By "net earnings " is meant earnings less expenses , such as for tiansportation, 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 It B. 440. Monies received for work performed upon THE CLEVELAND GRAPHITE BRONZE COMPANY 517 Ordinarily in cases of eviction such as those that occurred on June 7, 1946, if the incident occurs without the knowledge of the employer, loss of pay is not made up to the employees except where there has been a refusal to reinstate upon application In this case, however, there was no mitigating lack of knowledge. Respondent was fully aware of the eviction while it was taking place. It had numerous opportunities to halt the eviction, and continued opportunities to recall the evicted employees to their machines while they were still on the sidewalk in front of the plant for a conside Able period, during which, instead of recalling them, Respondent obtained the c names and locker numbers, got their street clothes together and had them delivered to them on the sidewalk, without any invitation to return. This constituted -oo palpable a condonation of the illegal eviction to justify penalizing the N ictinis in any suns, even though it may amount only to the pay for a few hours of work, since all three were invited to return to work during the afternoon and did in fact return to work the following morning. It will therefore be recommended that these three men, Stephen Gall, Frank Landig, and William Saggio be made whole for any loss of pay they may have suffered on June 7, 1946. by reason of their eviction from the plant by officials and committeemen of MESA with the knowledge and at least passive consent of Respondent It will be further recommended that the Respondent take active and effective steps to insure protection to its employees while on the premises of Respondent, against physical violence or any t^ pe of interference with them in the performance of their duties as employees, by any oljicer, committeeman, steward, or member of MESA or any other labor organization And it will be further recommended that Respondent post appropriate notices 4o its employees in contormity with the copy of a notice attached hereto as "Appendix A." Since It has been found that Respondent entertains no antipathy toward any labor organization as such, and evidently no objection to its employees freely choosing a representative for purposes of collective bargaining, but that in the circumstances here considered, has found itself a victim of circumstances wherein it felt that the conduct herein found to constitute unfair labor practices was, for economic reasons, necessaiy in older to continue its business functions along the line and to the extent requited to fulfill its place in the economic structure of the Nation, it will not be ieconnaended that Respondent cease and desist from all nature of unfair labor practices, but only that it cease and desist from con- duct of the type in which it has been found to have engaged, and conduct of_a similar character. It is not felt that unless enjoined from all unfair labor prac- tices, there is danger that Respondent would, in the future, further act in con- travention of the law For that reason, the broad order sometimes issued is not here indicated. On the basis of the foregoing findings of fact and upon the entire record herein, the undersigned makes the following : CONCLUsIONs OF LAW 1. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, CIO, and Mechanics Educational Society of America, Local No. 5 , are labor organizations within the meaning of Section 2 (5) of the Act. 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. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 Mechanics Educational Society of America, Local No 5. having been duly served with a copy of the complaint herein.and a notice of this hearing, and having entered a general appearance before the Board for the purpose of moving for continuance of this hearing, which motion was denied by the Board, but having failed to participate in the hearing itself, has nevertheless submitted itself to and is within the jurisdiction of the Board for the purpose of enforcement of any order entered herein. 3 Respondent by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is-engaging in unfair labor practices within the meaning of Section S (1) of the Act, and 4. By discriminating in regard to the hire and tenure of employment and con- tinuity of emplo}nient of Leonai 1 Bosco. John Fajack, Karl 'Ritter, Frank B. Galka, Anthony Petrovick, Samuel Geushaw. Ethel Harris, Stephen Gall. Flank Landig, William Saggio and Robert Bosco, thereby discouraging membership in International Union, United Automobile, Aircratt and Agricultural Implement Workers of America, CIO, and encouraging membership in the Mechanics Educa- tional Society of America, Local No 5, has engaged in and is engaging, in unfair labor practices within the meaning of Section S (3) 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 By discharging William E Bagshaw on August 22, 1946. and laying off Florence Kmet on August 2, 1946, Respondent has engaged in no unfair labor practices within the meaning of the Act. 7. Respondent, by extending the termination date of the contract of January 1, 1946, from January 1, 1947, to July 1, 1947, has not contributed to the financial support of MESA or otherwise assisted in the support of that organization. RECOMMENDATIONS On the basis of the foregoing findings of fact and conclusions of law, the under- signed recommends that Respondent. Cleveland Graphite Bronze Company, of Cleveland, Ohio, its othcers, agents, representatives, successors, and assigns shall: 1. Cease and deist from : (a) Discouraging membership in International Union, United Automobile, Air- craft and Agricultural Implement Workers of America, CiO, or any other labor organization, or encouraging niembeiship in Mechanics Educational Society of America, Local No 5, or any other labor organization, by discrinunatirig in 'Lily manner in regard to the hire or tenure of employment, or any condition of em- ployment, of any person because of his membership in or activities on behalf of, or his failure of membership in or actu ity on behalf of any labor organization, except insofar as such conduct might be protected by the proviso contained in Section 8 (3) of the Act. (b) From permitting the members, representatives, or officials of any labor organization to commit acts of violence on the premises of Respondent toward any of its employees, or interfere with the'proper performance of their duties as such employees, because such persons may be affiliated with a rival organiza- tion or may have refused to affiliate with and support the interfering organiza- tion. 2. Take the following affirmative action which we find will effectuate the policies of the Act : THE 'CLEVELAND GRAPHITE BRONZE COMPANY 519 (a) Offer to Robert Bosco immediate and full reinstatement to his former or substantially equivalent position," without prejudice to his seniority and other i ights and privileges ; (b)Make whole the said Robert Bosco for any loss of pay he may have suffered by reason of Respondent's discriminatory discharge of him, by the payment to him of a sum of money equal to that which lie normally kvould have earned as wages from the (late of his discriminatory discharge on August 23, 1946, to the date of Respondent's oiler of reinstatement, less his net earnings, if any, during such period; (c) Make whole Leonaid Bosco, John M Fajack, Karl Ritter, Frank B Galka, Anthony Petrovick, Samuel Genshaw, and Ethel Harris, for any loss of pay suf- fered by then during their discriminatory suspension from employment between May 24, 1946, and July 19, 1946, by the payment to each of them of a sum of money which each normally would have earned as wages during such period, less ins net earnings, if any, during the same period. (d) Make whole Stephen Gall, Frank Landig and William Saggio, for any loss of wages they may have suffered on June 7, 1946, as the result of their eviction from Respondent's plant by the officers and shop committee of Mechanics Edu- cational Society of America, Local No. 5, with the knowledge and passive ap- proval of Respondent: (e) Take appropriate steps to protect its employees, while on Respondent's premises, from acts of violence or interference with the performance of their duties, by the members, representatives, or officers of any labor organization, be- cause such employees may be affiliated with a rival organization or may have refused to affiliate with and support the interfering organization; (f) Post immediately at all points in the plant at Cleveland, Ohio, where notices to employees are usually posted, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall after being (linty signed by Respondent's representatiN e, be posted by Respondent immediately upon receipt thereof and maintained by it for Sixty (60) consecutive dad s thereafter in conspicuous places including the bulletin boards above described Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for the Eighth Region in writing, within ten (10) clays from the date of the receipt of this Intermediate Report and recom- nnendations, what steps Respondent has taken to comply therewith. It is recommended that the allegations of the complaint pertaining to the alleged discriminatory discharges of Florence Kmet and William E Bagshaw be dismissed and that the allegations in the complaint that Respondent has con- tributed financial support to MESA and otherwise assisted in the support of that organization be likewise dismissed. It is further recommended that unless on or before, ten (10) days from the receipt of this Intermediate Report Respondent notifies the said Regional Direc- tor 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. In accordance with the Board 's consistent inteipietation of the term , the expression "foimer or substantially equivalent position " is intended to mean "foimer position wher- ever possible, but if such position is no longer in existence , then to a substantially equiva- lent position " See Matter of The Chase National Bank of the City of New fort., San Juan, Puerto Rico, Bi ouch, 65 N L It B 827. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As provided in Section 20339 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 this Intermediate Report or to any other part of the record or pro- ceeding (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 saine period, file an original and four copies of a brief in support of the Intel mediate 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. Pioof 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 theiefor 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. R. N. DENHAM, Trial Examiner. Dated December 16, 1946. APPENDIX A NOTICE TO ALL EMPLOYEES 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 discourage membership in INTERNATIONAL UNION, UNITED AUTO- MOBILE, AIRcit i r AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, or any other labor organization, or encourage membership in MECHANICS EDUCATIONAL SOCIETY OF AMERICA, LOCAL No. 5, or any other labor organiza- tion, by discharging, suspending, laying oft or refusing to reinstate any of our employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment, be- cause of their membership in said organizations or either of them, or any other labor organization, or their failure to maintain membership in said organiza- tion or either of them, or any other labor organization, except insofar as such conduct is protected by the proviso of Section 8 (3) of the National Labor Relations Act. WE WILL fully protect each and every employee while on the j:iremises of the company, against any interference with the performance of his duties as an employee of this company, by any labor organization or any of the mem- bers or representatives and officials thereof, because of the membership of such employee in any labor organization, or his support thereof, or because of his failure to acquire or maintain membership in any such organization. WE WILL oFrER to Robert Bosco full and immediate reinstatement to his former or substantially equivalent employment without prejudice to any seniority or other rights or privileges previously enjoyed by him, and will THE CLEVELAND GRAPHITE BRONZE COMPANY 521 make him whole for any loss of pay suffered as a result of his discriminatory discharge on August 23, 1946 WE WILL MAKE WHOLE the employees named below for any loss of pay suf- fered by them as a result of their discriminatory suspension of employ- ment between May 24, 1946, and July 19, 1946. Leonard Bosco Anthony Petrovick John M Fajack Samuel Genshaw Karl Ritter Ethel Harris Frank B. Galka WE WILL MAKE WHOLE the following employees for any loss of pay suf- fered by them on June 7, 1946, by reason of the unlawful and illegal eviction of said employees from the plant and premises and their places of employ- ment thereon, by officers, committeemen and representatives and members of Mechanical Educational Society of America, Local No. 5, Stephen Gall William Saggio Frank Landig THE CLEVELAND GRAPHITE BRONZE COMPANY, By ------------------------- ------------ (Representative ) (Title) Dated ------------------------ This •notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. e