Briggs Manufacturing Co.

In the Matter of BRIGGS MANUFACTURING COMPANY and FOREMAN'S ASSOCIATION of AMERICA Case No. 7-C-1339.-Decided December 16, 1947 Mr. Woodrow J. Sandler, for the Board. Mr. Percy J. Donovan of Beaumont, Smith and Harris, of Detroit, Mich., for respondent. Mr. William Valiance, of Detroit, Mich., for the Union. DECISION AND ORDER On November 14, 1946, Trial Examiner Arthur Leff issued his In- termediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the respondent had not engaged in and was not engaging in certain other unfair labor practices, as alleged in the complaint. Thereafter, the respondent and counsel for the Board filed exceptions to the Inter- mediate Report and supporting briefs. On October 2, 1947, the re- spondent filed with the Board a motion for a dismissal of the proceed- ings in view of the intervening enactment of the Labor Management Relations Act of 1947. On October 10, 1947, upon the request of the respondent, and pur- suant to notice, a hearing was held before the Board in Washington, D. C., for the purpose of oral argument. The respondent was repre- sented by counsel and participated in the hearing. The Union did not appear. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, including the respondent's motion of October 2, 1947, which is denied for reasons hereinafter stated, and hereby adopts the findings, conclusions and 75 N. L. R. B., No, 65. 569 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommendations of the Trial Examiner with the additions herein- after set forth. 1. We agree with the Trial Examiner's finding that by refusing on or about October 23, 1944, to reemploy Quatro, unless and until he arranged, insofar as it affected him, for the withdrawal of the 8 (3) charge filed with the Board by the Union in his behalf, the respondent discriminated against Quatro within the meaning of Section 8 (4) of the Act. The respondent excepts to this finding on two grounds : (a) that at the time of the respondent's refusal to reemploy Quatro unless he withdrew the 8 (3) charge pending in his behalf, he was not an "employee" within the meaning of Section 8 (4) of the Act, inasmuch as the employer-employee relationship between the re- spondent and Quatro had been previously terminated for good cause, and (b) that Quatro had not filed the 8 (3) charge or authorized the Union to file the same in his behalf. We shall consider these conten- tions in order. (a) As to the contention that Quatro was not an "employee": Sec- tion 8 (4) of the Act makes it an unfair labor practice for an employer "to discharge or otherwise to discriminate against an employee because he has filed charges or given testimony under this Act." [Italics supplied.] It is the respondent's contention that the term "employee" presupposes the existence of a proximate employer-employee relation- ship between the employer charged with violation of this section and the worker discriminated against and that unless there is such a rela- tionship, the section does not apply' The respondent's interpreta- tion of the meaning of the term "employee," however, is too restrictive. Section 2 (3) of the Act provides that the term "employee" "shall include any employee" and expressly states that it "shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise." 2 The Act thus provides for the use of the term "employee" both in the broad generic sense as defined in Section 2 (3) of the Act, and also in a more limited sense whenever the Act explicitly so provides. In its generic sense the term is broad enough to include members of the working class generally.3 In its limited sense the 1 The respondent concedes that if Quatro 's employment with the respondent was termi- nated for discriminatory reasons, the respondent 's subsequent refusal to reemploy Quatro because he had filed charges against the respondent would have been within the meaning of Section 8 (4) of the Act. 2 Section 2 (3) reads as follows The term "employee" shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in con- nection with , any current labor dispute or because of any unfair labor practice, and - who has not obtained any other regular and substantially equivalent employ- ment . . . 8 Sec:' Phelps Dodge Corporation v. N. L. B. B., 313 U. S. 177, and the Board's brief in the Supreme Court, pp 45-49. In that case the Board pointed out that the term "em- ployee" as used in Section 10 (c) of the Act, as a result of the definition in Section 2 (3), meant "members of the working class generally and not employees of a particular employer," BRIGGS MANUFACTURING COMPANY 571 term may include only the employees of a particular employer, as for example, in Section 8 (5), which requires the employer "to bargain collectively" with the representatives of his employees, subject to the provisions of Section 9 (a). Because Section 8 (4) does not expicitly limit the term "employee" to those standing in the proximate em- ployer-employee relationship, the broad definition contained in Sec- tion 2 (3) must prevail under the express provisions of Section 2 (3). This broad definition covers, in addition to employees of a particular employer, also employees of another employer, or former employees of a particular employer, or even applicants for employment. Unless the purpose of Section 8 (4) is to be frustrated, the term must be inter- preted to include members of the working class generally, as well as persons standing in the proximate employer-employee relationship. Section i8 (4) was intended to assure an effective administration of the Act by providing immunity to those who initiate or assist the Board in proceedings under the Act. To limit protection against discrimi- nation only to employees of a particular employer, would permit em- ployers to discriminate with impunity against other members of the working class, and would serve as a powerful deterrent against free recourse to Board processes. An employee who had filed charges against his own employer could be blacklisted by other employers and and that for this reason it could direct the employer to instate applicants for employment who had been discriminatorily denied employment The Supreme Court upheld the author- ity of the Board to direct the instatement of such applicants for employment on the ground , among others, that Section 10 (c) did not require that " employees" stand in the proximate employer-employee relationship. The Court said : Secondly, insofar as any argument is to be drawn from the reference to "employees" in § 10 ( c), it must be noted that the reference is to "employees ," unqualified and undifferentiated. To circumscribe the general class, "employees ," we must Sad author- ity either in the policy of the Act or in some specific delimiting provision of it Not only is the Act devoid of a comprehensive definition of "employee" restrictive of § 10 (c) but the contrary is the fact. The problem of what workers were to be covered by legal remedies for assuring the right of self-organization was a familiar one when Congress formulated the Act The policy which it expressed in defining "employee" both affirmatively and nega- tively, as it did in § 2 (3), had behind it important practical and judicial experience. "The term `employe' ", the section reads, "shall include any employee , and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise. . . " This was not fortuitous phrasing. It had reference to the con- troversies engendered by constructions placed upon the Clayton Act and kindred state legislation in relation to the functions of workers' organizations and the desire not to repeat those controversies . Cf New Negro Alliance, v. Grocery Go, 303 U. S. 552 The broad definition of "employee," "unless the Act explicitly states otherwise," as well as the definition of "labor dispute " in § 2 (9 ), expressed the conviction of Con- gress "that disputes may arise regardless of whether the 'disputants stand in the proximate relation of employer and employee, and that self-organization of employees may extend beyond a single plant or employer." H. R. Rep. No. 1147, 74th Cong., 1st Sess ., P. 9 • see also S. Rep. No. 573, 74th Cong, 1st Sess., pp. 6, 7. (Pages 191, 192.) Mr Justice Stone and the Chief Justice, while disagreeing with the majority that the Board had power under the Act to direct reinstatement and back pay, conceded that "the petitioner's refusal to hire applicants because of their union membership , was an unfair labor practice within the meaning of Section 8 (3) of the Act even though they had never been employees of the petitioner , and that under Section 9 (c) the Board was authorized to order petitioner to cease and desist from the practice and to take appropriate proceedings under § 10 to enforce its order." 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denied employment for filing charges against his former employer. We cannot believe that Congress intended any lesser protection for filing charges under the Act than it did for concerted and union activities. Our conclusion that Quatro was an "employee" within the mean- ing of Section 8 (4) is not altered by the fact that Quatro was a supervisor at the time of his discharge, which was the subject of the 8 (3) charges filed with the Board. As appears from the Trial Examiner's finding, dismissing the 8 (3) charge as to Foreman Eardly, Quatro's employment was not discriminatorily terminated. Nor is our conclusion altered by the fact that at the time of the violation of Section 8 (4) Quatro was an applicant for a supervisory position. He was a member of the working class when he applied for a job. He did not acquire the status of a supervisory employee of the respond- ent until he was hired after the discrimination which violated Section 8 (4) took place. The violation of Section 8 (4) took place before he was hired. Moreover, even assuming arguendo that his status is to be considered as supervisory because he was applying for a super- visory job, it is obvious that supervisors were "employees" within the coverage of the Aet at the time the Section 8 (4) violation took place. We shall consider hereafter the effect of the enactment of the Labor Management Relations Act of 1947 on this proceeding insofar as it excludes supervisors from the definition of "employee" under the Act. (b) As to the contention that the 8 (3) charges were not filed by Quatro: Equally without merit is the respondent's contention that Section 8 (4) does not apply because Quatro had not filed the 8 (3) charges himself or authorized the filing of same in his behalf by the Union. The text of Section 8 (4) prohibits discrimination against an employee because "he has filed charges." [Italics supplied.] The record indicates that the original 8 (3) charges, which were to be withdrawn pursuant to the arrangement reached by the respondent and Quatro, had been filed by the Union in behalf of Quatro. Quatro's letter to the Board of October 23, 1944, asked for the with- drawal of "my case" and stated that it was presented "in my behalf" by the Union. Quatro also testified that following the events of May 1944, he appeared before an official of the Board and orally pre- sented an 8 (3) charge. It would not be reasonable to construe Section 8 (4) so literally as to afford protection only when the em- ployee himself has filed a charge-not when a union has filed the charge in his behalf. Unions commonly file charges in behalf of their members. Even though "Quatro had not filed the charges himself," the record reveals that the respondent was able to accomplish the improper objective it sought-the dropping of the charges against BRIGGS MANUFACTURING COMPANY 573 it, by discriminatorily requiring Quatro to write the Board a letter asking that they be dropped, as a condition to reemployment.4 2. The Trial Examiner's conduct of the hearing: The respondent excepts to the Trial Examiner's conduct of the hearing and alleges that it was in violation of the due process clause of the Constitution of the United States of the Administrative Procedure Act. We have care- fully considered the exception and the record in the case and find that the respondent suffered no actual or legal prejudice by reason of the Trial Examiner's conduct of the case. It may further be noted that the Trial Examiner recommended a dismissal of the complaint in its entirety, except insofar as it alleged that Foreman Quatro was denied reemployment in violation of Section 8 (4) of the Act. To the extent that the Trial Examiner recommended the dismissal of the complaint, it is clear that the respondent cannot assert that it was prejudiced. The Trial Examiner's conclusion that the respondent discriminated against Quatro within the meaning of Section 8 (4), is based upon undisputed and credible evidence, including the testimony of the respondent's own witnesses. The only disputed issue in the case is a question of law-the interpretation and application of Section 8 (4) to undisputed facts. We have reaffirmed the correctness of the Trial Examiner's interpreta- tion and application of Section 8 (4). 3. Impact of the Labor Management Relations Act of 1947: On October 2,1947, the respondent moved for a dismissal of the charges or that the Board refuse to proceed further on an additional ground that, since the filing of the charges and the issuance of the complaint, Con- gress passed the Labor Management Relations Act of 1947. The re- spondent contends, inter alia, that the Board should give effect to the policy contained in Section 10 (b) of the Act, as amended, which pro- 4 The respondent contends that the present proceeding violates a Board policy against accepting charges after they have been withdrawn for a period of more than 6 months. The contention is without merit. The charges in behalf of Foreman Eardly, originally filed in July 1944, were never withdrawn Eardly's case is dismissed . The contention is apparently based on the incorrect assumption that the Section 8 (4) charge with respect to Quatro, filed in August 1946, was a refiling of the July 1944 8 (3) charges which was dropped as to Quatro when Quatro wrote to the Board in October 1944 that he wanted the case withdrawn The August 1946 charge was an 8 (4) charge growing out of the withdrawal of the earlier 8 (3) charge . It was in no sense a reacceptance of the earlier 8 (3) charge Equally without merit is the respondent' s contention that the charges are invalid because they are stale and are filed as a tactical maneuver in the renewed organizational drive of the Union. The Act contains no limitation of time within which charges of unfair labor practices may be filed, and the equitable doctrine of Inches is not applicable to the Board as a Government agency acting in the public interest. Matter of Colorado Milling and Elevator Co., 11 N. L. It. B 66, 68 , Matter of The New York & Porto Rico Steamship Co, 34 N. L It. B. 1028, 1044; Matter of Cowell Portland Cement Co., 40 N. L. R B. 652, 655. It would seem particularly true that a respondent should not be permitted a successful violation of Section 8 (4) merely because of delay. Moreover, In view of the fact that the essential facts here are undisputed , and no question of reinstate- ment or back pay is involved, it does not appear that the delay has in any wise prejudiced the respondent . It is also well settled that the motive which may have impelled the filing of charges is immaterial . Matter of the New York 4 Porto Rico Steamship Co., supra. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'vides that "no complaint shall issue based upon any unfair labor prac tice occurring more than 6 months prior to the filing of the charges with the Board." - The section referred to applies only to the issuance of complaints in the future ; the complaint herein issued long before the effective date of the amendments . We have already held that the amendments in Section 9 (f), (g), and (h) which are similarly phrased should not be given retroactive effect unless such construction is re- quired by explicit language or by necessary implication.5 The respond- ent further argues that the case must be dismissed because the 1947 amendments exclude supervisors from the definition of "employee" in Section 2 (3) of the Act, and that Quatro as a supervisor is not entitled to the protection and benefits of the Act. We have already pointed out that we do not believe that Quatro is to be considered to have been a supervisor at the time the violation of Section 8 (4) took place. How- ever, assuming again, arguendo, that he was, the respondent's argument necessarily is that we can no longer find that it was an unfair labor practice to discriminate against a supervisor in October 1944, at a time when supervisors were "employees ," because it would not today be an unfair labor practice by reason of the amendments effective August 22, 1947. But we have already pointed out at length in our decision in Matter of Marshall and Bruce Company,6 where the complaint also issued prior to August 22, 1947, that the Labor Management Relations Act of 1947 did not operate retroactively to extinguish liabilities for unfair labor practices which were committed prior to August 22, 1947. Such amendments do not, therefore , preclude a finding that the re- spondent violated Section 8 (4) of the Act in October 1944. The respondent further argues that the Board can no longer enter the cease and desist order recommended by the Trial Examiner , because the Board has no power to enjoin the respondent in the future from discriminating against supervisors . But the recommended cease and desist order does not enjoin discrimination against supervisors. It enjoins the respondent from "discriminating against any employee because he had filed charges or given testimony under the Act." [Italics supplied.] Obviously it is applicable only with respect to such persons as are within the definition of "employee" in the Act. The Trial Examiner has found that "unless enjoined, danger of the com- mission by the respondent in the future of like and related unfair labor practices is to be anticipated from the respondent's conduct in the past," and that a cease and desist order of the character recommended is necessary "in order to effectuate the policies of the Act." We agree. Matter of Marshall and Bruce company, 75 N. L. R. B. 90, and cases cited therein. 6 75 N L R. B. 90. ,BRIGGS MANUFACTURING COMPANY 575 The respondent also argues that inasmuch as Quatro was demoted "for cause" in July 1944 when his employment was terminated, the policy set forth in Section 10 (c) of the Act,7 as amended, precludes the Board from issuing an order which confers any benefits upon supervisors and their bargaining representative, the Union. Section 10 (c) has no, application to this case. Our finding and order has no relation whatever to the termination of Quatro's employment in July 4944. -Moreover, it does not provide for Quatro's reinstatement or for back pay, nor does it in any sense confer any benefit upon Quatro personally or upon the charging union. It is issued to redress a public wrong and not a private grievance of Quatro or the Union and merely orders the respondent to cease and desist from violating Section 8 (4) in the future. 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 , Briggs Manufac- turing Company , Detroit, Michigan, and its officers, agents, successors and assigns shall : 1. Cease and desist from discharging , refusing to employ, to rein- state or reemploy, imposing conditions upon employment or reemploy- ment, or otherwise discriminating against any employee because he has filed charges or given testimony under the Act, or in any other manner interfering with the right of employees to file and prosecute charges and to give testimony under the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at each of its plants in Detroit , Michigan , copies of the notice attached to the Intermediate Report herein , marked "Appen- dix A." 8 Copies of said notice , to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall 7 The relevant portion of Section 10 (c) reads as follows : No order of the Board shall require the reinstatement of any individual as an employee, who has been suspended or discharged or the payment to him of any back pay, if such individual was suspended or discharged for cause. Said notice, however, shall' be, and it hereby is, amended by striking from the first paragraph thereof the words "Recommendations of a Trial Examiner " and substituting in lieu thereof the words "A Decision and Order." In the event that this Order is enforced by decree of a Circuit Court of Appeals, there shall be inserted before the words "A Decision and Order," the words "A Decree of the U. S, Circuit ,Court of Appeals enforcing." 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (b) Notify the Regional Director for the Seventh Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent discriminated in regard to the hire and tenure of em- ployment and terms and conditions of employment of Joseph Eardly and thereby interfered with, restrained, and coerced its-employees in the exercise of rights guaranteed in Section 7 of the Act, be, and it hereby is, dismissed. CHAIRMAN HERZOO took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Woodrow J. Sandler, for the Board. Mr. Percy J. Donovan, of Beaumont, Smith and Harris, of Detroit, Mich., for respondent. Mr. William Valiance, of Detroit, Mich., for the Union. STATEMENT OF THE CASE Upon a second amended charge' duly filed by Foreman's Association of America, herein called the Union, the National Labor Relations Board, heroin called the Board, by its Regional Director for the Seventh Region (Detroit, Michigan), issued its complaint dated August 7, 1946, against Briggs Manufac- turing Company, herein called the respondent, alleging that the respondent had engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3) and (4) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notice of hearing were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the respondent: (1) on or about May 24, 1944, demoted Joseph Eardly and has since refused to reinstate him to his former status because he had joined and assisted the Union and had otherwise engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection, and (2) on or about October 23, 1944, refused to reinstate Arthur Quatro, who had been terminated on May 24, 1944, unless and until he withdrew his name from unfair labor practice charges theretofore filed by the Union and then pending in the Seventh Regional office of the Board. On August 19, 1946, the respondent filed a (so-styled) "motion and answer." In it, the respondent moved to dismiss the complaint upon the alleged grounds, in substance, that the supervisory employees named in the complaint are not employees within the meaning of the Act, that the provisions of the Act may not be applied to supervisory employees, that the Board has no jurisdiction over the 'The original charge was filed on July 20, 1944, the first amended charge on April 25, 1945, and the second amended charge on August 6, 1945. BRIGGS MANUFACTURING COMPANY 577 subject matter of this proceeding, and that the continuation of the proceeding would not effectuate the policies of the Act and would be contrary to the public interest, public policy and the national welfare. The said "motion and answer," after stating that the respondent would proceed with the hearing under protest and without waiving any grounds stated therein for dismissal in the event its motion was denied, then went on to answer the allegations of the complaint, denying, inter alia, all allegations thereof pertaining to the commission of unfair labor practices by the respondent. Pursuant to notice, a hearing was held from September 4 to September 6, 1946, at Detroit, Michigan, before the undersigned, Arthur Leff, the Trial Ex- aminer duly designated by the Chief Trial Examiner. The Board and the re- spondent were represented by counsel and the Union by a representative. Full opportunity-to be heard, to examine and cross-examine witnesses, and to in- troduce evidence bearing on the issues, was afforded all parties. At the opening of the hearing, the undersigned denied the motion to dismiss contained in the respondent's "motion and answer." 2 The same motion was renewed and again denied at the close of the Board's case and also at the close of the entire case. At the close of the entire case the undersigned : granted a motion of counsel for the Board to conform the pleadings to the proof with respect to the spelling of names, dates, and alter minor variances; denied motions to dismiss the complaint made by the respondent upon the grounds, (a) that there was laches in the prosecution of the charges, and (b) that the respondent, because it was engaged in war production at the time of the alleged unfair labor practices, was not engaged in commerce within the meaning of the Act; and took under advisement the respondent's motion to dismiss the complaint for insufficiency of proof. The motion on which ruling was reserved is disposed of as herein- after indicated. Counsel for the Board alone availed himself of the opportunity, afforded to all parties at the conclusion of the hearing, to present argument before and file briefs with the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Briggs Manufacturing Corporation, a Michigan corporation, owns, operates and maintains in Detroit, Michigan, seven manufacturing plants at which it is now engaged in the manufacture of its normal peacetime product, automo- bile bodies. At these plants, during 1944, the respondent was wholly engaged in the production of war materials under contracts or sub-contracts with United States Government agencies. In the year 1944, approximately 75 percent of the raw and other materials used by the respondent at its Detroit plants, having a value in excess of $500,000, was received from points outside the State of Michigan, and 90 percent of the products worked on at the respondent's Detroit plants, also having a value in excess of $500,000, was thereafter moved to points outside the State of Michigan. In the 6 months' period preceding the hearing, during which the respondent was engaged exclusively in peacetime production, the respondent received approximately 75 percent of its raw materials, having ' See Matter of Soss Manufacturing Company, 56 N L. R B 348; Matter of Packard Motor Car Company, 61 N. L R B 4 and 64 N L. R B 1212, enf'd N L. R B v Packard Motor Car Co., 157 F. (2d) 80 (C. C. A. 6) ; Matter of Jones and Laughlin Steel Corpora- tion, 66 N. L. R. B. 386. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a value of over $100,000, from points outside the State of Michigan. During that same 6 months' period, the respondent shipped most of its finished products to automobile manufacturing companies located in, the Detroit area, but also shipped a quantity thereof, having a value in excess of $100,000, to its plant in Evansville, Indiana. There is clearly no merit to the respondent's contention that its activities in 1944 did not affect commerce within the meaning of the 'Act since it was then engaged exclusively in the production of war materials.3 It is found that the respondent is, and at all times material to this proceeding has been, engaged in commerce within the meaning of the Act. II. THE LABOR OItUANIZATION INVOLVED Foreman's Association of America is an unaffiliated labor organization ad- mitting to membership supervisory employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Sequence of events 1. Introduction From April 27 to May 17, 1944, there was a foremen's strike, supported by the Union, in certain of the respondent's Detroit plants. The record does not dis- close how effective that strike was on an' overall basis, or what proportion of the respondent's full complement of foremen joined in it ; but it does show that all but one of the approximately 60 foremen in Department 398 of the Conner plant, where the walk-out originated, participated in the strike throughout its duration. Among the striking foremen attached to Department 398, were Joseph Eardly, Arthur Quatro, and John Scupine.4 Each of them had been a member of the Union for some time prior to the strike, although none, so far as the record discloses, had theretofore been particularly prominent in the organiza- tional activities of the Union. During the strike, Eardly, Quatro and a third employee, whose name is unimportant here, were elected departmental repre- sentatives for Department 398.5 The strike was called off in obedience to a directive of the National War Labor Board. When the striking foremen returned to work on the morning of May 18, 1944, they were expressly notified that the Union would not be recognized by the respondent as the representative of the foremen. There is no showing in this case, nor is it claimed, that the Union at any time, before, during, or after the strike, represented a majority of the respondent's foremen in an appropriate unit so as to entitle it to representative status under the provisions of Section 9 (a) of the Act. 3 The respondent makes no contention that it was not then the employer of the approxi- mately 40,000 employees who worked at the 7 Detroit plants which it admittedly owned, maintained and operated for private gain. Sovereign immunities were not conferred upon the respondent, a private corporation , merely because all its production at the time was pursuant to contracts and sub-contracts with or stemming from Federal agencies interested in the promotion of the war effort 4 Eardly, Quatro and Scupine were line foremen occupying the lowest level of the re- spondent's supervisory hierarchy. The levels of supervision above them , in ascending order of importance, were general foremen , assistant superintendents , superintendents, plant managers , and general manufacturing manager. 5 The position of departmental representative corresponds to that of steward in rank and file labor organizations. BRIGGS MANUFACTURING COMPANY 579 2. The events leading to the suspension of Eardly, Quatro, and Scupine by Plant Manager Blasiola on May 24, 1944 On-May 23, 1944, Scupine, who at the conclusion of the strike had resumed his old position, was assigned by Plant Manager Roy Blasiola to a new super- visory position of the same rank. The position to which Scupine was trans- ferred had formerly been filled by Fred Hull, the only foreman in Department 398 who had not participated in the strike, and who at the conclusion of the strike had been promoted to the position of assistant superintendent. In his new position Scupine was required to take orders from Hull. Scupine objected to the job transfer for two reasons: one, which he made known to Blasiola, was that he preferred to remain on his old job; the other, to which he admitted at the hearing but not to Blasiola at the time, was that he did not want to take orders from a supervisor who had been a "scab" during the strike. Notwithstand- ing his objections, Scupine agreed on the morning of May 23 to accept the new assignment. After Scupine took over his new assignment, however, he made it a point deliberately to avoid Hull. That afternoon Hull complained to Blasiola that Scupine was refusing to take orders from him. Blasiola thereupon sum- moned Scupine to his office, reprimanded him for refusing to take orders from Hull (an accusation which Scupine then denied), threatened at one point to demote him to an hourly rated job, requested him to apologize to Hull, and finally told him to return to work. Scupine, following his reprimand by Blasiola on May 23, informed Eardly and Quatro of what had occurred. He complained to them that he had been brow- beaten in Blasiola's office, and told them that if he were called again to Blasiola's office, he wanted someone to accompany him there. Toward the end of the workday on May 23, an informal meeting attended by about eight or nine fore- men in Department 398, all of whom were members of the Union, was held on the plant floor. It was decided at the meeting that if any foreman should thereafter be summoned to Blasiola's office, he might request any two foremen in the department to accompany him there as witnesses. On the morning of May 24, Scupine reported for work late and went directly to the office of the departmental superintendent, Dover. He informed Dover that he had reconsidered during the night his acceptance of the new job assign- ment, and, for various reasons which he stated, had decided that he wanted to remain on his old job and not take over the foreman's job which had been vacated by Hull's promotion. Dover, after discussing the matter with Blasiola on the telephone, instructed Scupine to report directly to Blasiola at the latter's office. • Eardly was in Dover's office at that time, clearing some records. Scupine in the presence of Dover requested Eardly to accompany him to Blasiola's office, and Eardly agreed to do so. On the way through Department 398, Scupine made a similar request of Quatro, and he, too, undertook to go along The four of them-Dover, Scupine, Eardley and Quarto-then went in a group to Blasiola's office, located in another building, some 1,000 feet removed from Department 398. All this occurred during working time. There was, however , no plant rule re- stricting the movement of supervisory employees, and it was not uncommon for supervisors to leave their jobs and departments without permission. The re- spondent had previously anounced an "open door policy," inviting foremen to present their personal grievances to the front office at any time. The announced policy had not, however, indicated that foremen were welcome to come down 766972-48-vol. 75-38 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in groups and act collectively or through representatives in the presentation of grievances, and the record discloses no prior instance where this had been at- tempted. In any event, it is to be noted that Superintendent Dover voiced no protest or objection to Eardly and Quatro with respect to their conduct in leav- ing their department on company time to accompany Scupine to Blasiola 's office. The findings concerning the events narrated up to this point are based upon uneontradicted testimony found credible by the undersigned. As to what fol- lowed, there is some conflict in the testimony, the more salient aspects of which will be noted at the end of this section. But based upon a synthesis of all the testimony believed to be reliable, it is found that the following occurred : When the group arrived at Blasiola 's office, Dover was the first to enter, and Scupine followed , with Quatro and Eardly behind him . Blasiola asked Quatro and Eardly what they wanted. They answered, "We are witnesses for Scupine." Blasiola then asserted that his business was with Scupine and that he wanted to talk to him alone. He told Quatro and Eardly to return to their jobs. Scupine alone answered, declaring, "Well, if they don't go in, I am not going in there, either." Scupine, Quatro, and Eardly then turned around, left Blasiola's office, and started down the corridor on the way back to their department. They had not gone far when Blasiola , emerging from his office, shouted down the ,corridor for them to "wait a minute." Blasiola came up to them, and, after inquiring and being advised concerning Eardly's identity, reiterated that he had no business to conduct with Quatro and Eardly, that his only concern was with Scupine, and that he wanted to speak with Scupine privately. In reply, Quatro assuming to speak not only for himself but for the others as well, although they remained silent, declared [as Eardly testified] that "inasmuch as Johnnie [Scupine] didn't want to go in there alone that we should go in there with him and otherwise we would all go back on our jobs." Blasiola's rejoinder at that point was short and sharp. "Well, then," he said, "You are all three fired." Actually, however, as subsequent developments showed, they were not dis- charged. Scupine, Quatro and Eardly left to get their hats and coats. When they returned to Blasiola's office, Blasiola said to Quatro and Eardly, "I will offer you the same as I offered Mr. Scupine yesterday, a job on an hourly rate." Quatro and Eardly declined the proposal, stating that they wanted to continue on as foremen. Blasiola then left the office, and apparently at that time (although he fixed the time as earlier in his testimony) contacted George Drysdale, the respondent's general manufacturing manager and Blasiola 's superiors When Blasiola returned to the office, he informed Scupine, Quatro and Eardly, "Your time is stopped right now, you are' not paid off but you will have to go see Mr Drysdale before you can go back to work, and I want you to go right out that gate [pointing to the gate outside his office] so that I can witness your leaving the plant." Blasiola's reference to the stopping of their time *as cor- rectly interpreted by the employees to mean that they had not been discharged but were temporarily suspended pending their interview with Drysdale.? ° Blasiola testified that at the conclusion of the foremen 's strike a meeting of higher supervision had been held and instructions had been issued that extra caution be exercised with respect to any disciplinary action taken against foremen so that it might not be mis- construed as discrimination Because of these instructions , he testified , he called Drysdale to report to him what had happened and to obtain his advice. 7 The findings concerning the events in Blasiola's office are based upon the testimony of Scupine, Quatro and Eardly , witnesses called by the Board , and Blasiola, a witness called by the respondent. Dover did not testify In making the above findings, the undersigned has considered the full testimony of each of these witnesses although he has relied oil no one of them entirely . The testimony of Scupine , Quatro and Eardly, although containing r BRIGGS MANUFACTURING COMPANY 581 ,S. Thu conduct of Scupine, Quatro and Eardly on May 24, 1944, in reentering the plant in the face of contrary instructions On the afternoon of May 24, Scupine, Quatro and Eardly called to see Drysdale whose offices were located in another plant of the respondent. They were advised that Drysdale was too busy to see them at the time, and they were told to return at a specified time the following morning. They thereupon returned to the Conner plant and stopped at Blasiola's office where Quatro informed Blasiola's assistant, Jessup, that they had not been able to see Drysdale. Quatro, speaking for the three foremen, added they were returning to their jobs, and that if Drysdale wanted to see them he could let them know and furnish them with the transportation to get to his office. Jessup had previously received instructions from Blasiola not to permit Scupine, Quatro and Eardly to return to their jobs until they had first cleared with Drysdale. He advised the three foremen that those were his instructions and that he could not under the circumstances permit them to return to work at that time. Quatro said that they were going back anyway, and Jessup replied that if they did lie would stop them even if he had to use force. Notwithstanding Jessup's express orders, Scupine, Quatro and Eardly proceeded to enter the plant and go back to their jobs. About 5 minutes later, on orders of Blasiola, they were physically escorted from the plant by the plant protection guards. 4. The interviews with Drysdale on May 25, 1944; the demotion of Eardly and the release of Quatro On the morning of May 25, 1944, Scupine, Quatro and Eardly appeared at Drysdale'-, office where each was interviewed separately by Drysdale and his staff assistant, Edward Hopkins. Scupine, it appears, was questioned principally about his refusal to take orders from Hull. In the course of his interview, Scupine promised Drysdale that he would go back to work for Hull and that he would not in the future disobey Hull's orders. Eardly and Quatro were questioned principally, but not exclusively, concern- ing their conduct in accompanying Scupine to Drysdale's offices In the course slight discrepancies in certain minor details, corroborate each other in all essential aspects. Blasiola's testimony differed from that of the other three witnesses only in the following material respects: (a) He denied that he had told the employees that they were "fired," and asserted that he had only told them that their time was stopped. (b) He testified that they had flatly refused to go back to their jobs until he had met with them, although he had ordered them to do so (c) He testified that he "believed," although he was "not sure about this," that after they had returned with their hats and coats, he had again given Quatro and Eardly an opportunity to return to their jobs while he talked to Scupine alone, but that they had again refused to do so Quatro, Scupine and Eardly appeared to have a clearer recollection than Blasiola of the events of that day. Neither Scupine (who was still employed by the respondent at the time of the hearing) nor Quatro (who was then no longer a member of the Union and whose relations with the respondent's higher management officials were then admittedly friendly) had any direct personal interest in the outcome of the case. In view of all the circumstances, and on the basis of his observation of the witnesses, the undersigned in making the findings of fact set out above, has accepted the mutually corroborated testimony of the Board witnesses and has rejected that of Blasiola with respect to the several conflicts noted above. 8 There was, however, also some discussion concerning the strike, the Union, and their activities therein. Thus, Eardly testified without denial, and it is found, that Drysdale asked him what he had to do with the foremen's strike, what his position in the Union was, and whether he went about his department collecting dues. Quatro testified, likewise without denial,, and it is found, that Drysdale, at one point of the interview, intimated 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Eardly's interview, Eardly, under questioning by Drysdale, admitted that he knew that the respondent did not recognize the Union as a bargaining repre- sentative for the foremen and that he knew when he attempted to act in a representative capacity for Scupine that such conduct was "not allowed." But while admitting that his conduct may have been legally wrong, Eardly asserted that he considered it morally justified, charging that the respondent, by failing to return all strikers to their'old jobs, had not lived up to the status quo prescribed by the War Labor Board when it ordered the termination of the strike. Drysdale askc^d•Eardly whether lie would in the future insist upon coming down to a superior's office to act in a representative capacity for a foreman, and Eardly replied that if a foreman should again request him to appear for him before a superior, he would do exactly as he had done before. Quatro in his interview, although acknowledging that he was aware that the respondent did not recognize the Union, also refused to promise not to engage in similar conduct again. Although there is a conflict of testimony on that point, the undersigned is per- suaded on the basis of all the evidence believed reliable, and finds, that nothing was said by Drysdale in the course of the interviews about the conduct of the three foremen in entering the plant on the preceding day after they had been told not to do so a Scupine, at the conclusion of his meeting with Drysdale, was told to return to work. However, before he was actually permitted to resume his job, he was also interviewed by Blasiola, who secured his promise that in the future he would take instructions from his superiors on the floor and would refrain from bringing witnesses with him when summoned to Blasiola's office. Scupine, following his return, worked for several days on the job which had been vacated by Hull and then was reassigned to the job which he had held prior to the strike. He was still in the employ of the respondent as a foreman at the time of the hearing Eardly and Quatro, on the other hand, were disciplined by demotion to hourly paid non-supervisory positions. Quatro declined to accept a demotion and was given a release stating that he had been terminated for "insubordination " Eardly, because of his accumulated seniority, elected to accept a demotion to a rank and file job, and at the time of the hearing was still working for the re- spondent as a non-supervisory employee. that Quatro was a leader of a "radical element," and, at another point, countered an assertion by Quatro that the rank and file employees were sympathetic to the foremen's strike by inquiring whether it was not true that the Union and the CIO were working together The record does not indicate at what stage of the interviews the questions and comments here noted occurred. B The findings made above concerning Drysdale's interviews with Scupine, Eardly and Quatro are based upon undenied or admitted testimony of one or more of the persons present at the iespective interviews In making the findings the undersigned has con- sidered the testimony of all the witnesses who were present at the respective interviews and has not merely accepted the testimony of any one of them, particularly since all wit- nesses seemed to have imperfect recollections of what occurred, and, in testifying, indi- cated a disposition, unless their attention was specifically directed to another phase, to state only that part of the conversations which appeared favorable to the party for whom they appeared. When the testimony of all the witnesses is considered as a whole, the only substantial conflict material to the issues here involved arises from the testimony of Drysdale, denied by Scupine, Eardly and Quatro, that mention was made of the conduct of the foremen in entering the plant in violation of instructions The undersigned regards it as significant that Hopkins who was present at all three interviews and who testified as a witness for the respondent did not corroborate Drysdale's testimony in this respect. For this reason and because of the generally unimpressive character of Drysdale's testi- mony, much of which was obviously suggested by leading questions and statements made in objections, Drysdale's testimony, to the extent that it is contradicted, is not viewed as reliable and is rejected. BRIGGS MANUFACTURING COMPANY 583 Drysdale testified in substance that although he considered that all three fore- ?nen has been guilty of insubordination, he decided not to demote Scupine be- cause of his penitent attitude at their interview, but had decided to discipline Eardly and Quatro because, by insisting they would do the same thing again, they had indicated an attitude of continued insubordination. 5. The requirement imposed upon Quatro on or about October 23, 1944, as a condition to reemployment On July 20, 1944, the Union lodged a charge with the Regional Office of the Board alleging that the respondent had demoted,Eardly and had caused Quatro to terminate his employment in violation of Section 8 (1) and (3) of the Act. While this charge was still pending , Quatro, on or about October 23, 1044 , applied to the respondent for reemployment. He conferred with Drysdale and also with Fay Taylor , the respondent 's personnel director. He was advised that his record as Ii supervisor had been satisfactory up to the time of his "insubordi- nation," and that the respondent was prepared to consider him for reemployment but that it would not be able to do so because Quatro had a charge against the respondent pending before the Board . Quatro thereupon advised Drysdale that if the pending charge was the only thing which prevented his reemployment, he was willing to have his name dropped from the charge . Drysdale then said, "All right, you drop the case and we will put you back to work." Quatro asked Drysdale what he should do, and Drysdale suggested that he write a letter to the Board's Regional Office requesting the withdrawal of his case . Thereafter a letter to the Board was prepared by Drysdale 's clerk and signed by Quatro stating in substance that Quatro was withdrawing his case, pending before the Board, which theretofore had been presented by the Union on his behalf. In the letter, which he signed , Quatro stated that he was withdrawing the case because he "sincerely" felt that "it should never have been presented .115 Quatro, after he signed this letter , was reemployed by the respondent. He thereafter continued in the respondent's employ until April 1946, when he voluntarily quit. B. Conclusions The complaint alleges that the respondent violated Section 8 (1) and (3) of the Act by its demotion of Eardly. No similar violation is alleged with respect to Quatro. As to him the complaint merely alleges that the respondent violated Section 8 (4) by refusing, on October 23, 1944, to reemploy him unless and until he withdrew his name from the unfair labor practice charge then pending. Aside from its general contention, herein found to be without merit, that fore- men are not employees entitled to the protection of the Act,10 the respondent defends its demotion of Eardly upon the ground that such action was taken solely because of Eardly's alleged insubordination in (a) leaving his job during working hours to accompany Scupine to Blasiola's office when only Scupine had been summoned there, and thereafter insisting on acting in a representative capacity for Scupine despite the respondent's declared policy of non-recognition of the Union and despite Blasiola's direction that he desired to see Scupine alone ; (b) returning to work that afternoon in the face of contrary instructions; and 10 The letter was subsequently forwarded to the Board ' s Regional Office through the Union. In the charge as subsequently amended, all reference to Quatro 's alleged discrim- inatory discharge was deleted. 11 See Matter of Soss Manufacturing Company, 56 N L R. B 348; N. L R B v Packard Motor Car Company , 157 F. ( 2d) 80 (C. C. A. 6). 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) adamantly taking the position during his interview with Drysdale that he would engage in similar conduct again if the occasion should arise. In reply„ counsel for the Board argues in substance that Eardly's conduct in returning to the plant against Jessup's instructions did not in fact motivate the respondent's decision to demote him; that in the absence of a plant rule restricting the move- ment of supervisors, Eardly could not have been guilty of insubordination in leaving his place of work during company time to accompany Scupine to Blasiola's office ; and that when these considerations are cast aside, the only conclusion that flows from the record is that Eardly was disciplined either because as a member and representative of the Union he engaged in "protected" concerted activities on behalf of a fellow union member or because he insisted on his "right" to engage in such concerted activities in the future. It is true that there is substantial record support for a finding that neither Eardly's action, without more, in leaving his place of work on company time nor his conduct in returning to the plant were the primary factors which induced the respondent's decision to discipline him It is also true that the action of Eardly as well as that of Quatro in accompanying Scupine to Blasiola's office constituted a form of concerted activity. The mere fact that an employee engages or attempts to engage in concerted activity does not, however, in all cases and under all cir- cumstances afford him absolute protection under the Act. Where an employee in asserting his right to act in concert with others also engages in other conduct which exceeds the necessary and reasonable bounds of concerted action he does not remain immune from disciplinary action therefor 12 The test in each case must be whether it is the other conduct or the legitimate concerted activity which motivates the disciplinary action. Had there been nothing else in the instant case but a showing that Eardly and Quatro had attempted to represent a fellow fore- man and had been demoted therefor, the argument of Board's counsel would possess merit, and a finding would be justified that the respondent had violated the Act. But there are present in the record of this case other factors which dis- close that Eardly's actions passed beyond the confines of legitimate and pro- tected concerted activity and took on the taint of insubordinate conduct for which the respondent could, with inpunity, punish him. At the time Eardly and Quatro, as Union representatives, undertook to accom- pany Scupine to Blasiola's office, the Union did not enjoy the status of a majority bargaining agent entitled to recognition. Under the circumstances ( and assum- ing, without deciding, that where there is a statutory representative an indi- vidual employee is entitled to union representation whenever he is called into a supervisor's office to be admonished) Blasiola was clearly privileged to refuse to meet with Eardly and Scupine.'3 While Blasiola could not have validly dis- ciplined Eardly and Quatro for attempting to act in concert with Scupine, he could properly insist, as he did, on seeing Scupine alone, for only Scupine had been summoned to his office. It is noted that, before taking any action, Blasiola twice and in positive terms made clear to the foremen that he wanted to see Scupine alone. Nevertheless, Quatro as spokesman for the group and with the apparent acquiescence of Eardly, defiantly announced, in substance, that unless Blasiola was prepared to see them all together, they would return to their jobs arid not permit him to see Scupine alone. Under these circumstances, Blasiola was rea- sonably justified in viewing the conduct of Eardly and the other foremen as 12 See e. g, Matter of Wilson & Company, Inc., 43 N. L. R. B. 804, 820. 13 See Matter of Mooresville Cotton Mills, 2 N. L. R. B. 952; Matter of New York Times Company, 26 N. L. R. B. 1094, 1105. BRIGGS MANUFACTURING COMPANY 585 an unwarranted interference with and a flouting of his managerial authority." But even if the foremen's attitude that Drysdale see them all together or none at all be regarded as part and parcel of concerted action in which they were engaged at the time, the same cannot be said of Eardly's later attitude at Drys- dale's office. The respondent was clearly privileged to impose reasonable re- straints on the conduct of its employees during working hours.16 On the basis of the record in this case, it does not appear that it was unreasonable or other- wise violative of employee rights under the Act for the respondent to require its foremen to abstain from leaving their jobs during working hours to act as representatives or witnesses for fellow foremen summoned to appear before a superior. When Eardly, after the respondent's policy in that regard was im- pressed upon him in Drysdale's office, nevertheless obdurately expressed an intent to ignore this restriction if returned to his foreman's job, he thereby indicated an unwillingness to comply with a term and condition of employment reasonably prescribed by the respondent. The respondent under these circumstances was justified in viewing his attitude as insubordinate, and was not prohibited under the Act in disciplining him therefor." In assessing the respondent's motive in demoting Eardly, the undersigned has considered in context with the entire record of the case the arguments of Board's counsel that Scupine who was also insubordinate was not disciplined and that Drysdale in the course of his interviews with Eardly and Quatro indi- cated an attitude of hostility toward the Union. These factors do serve to cast some doubt upon the bona fides of the respondent's motive. But on the basis of all the evidence, including particularly the fact that Scupine did not display an insubordinate attitude in his interview with Drysdale, the undersigned con- siders them insufficient to support a rejection of the respondent's defense that Eardly was demoted for insubordination. Upon the entire record, the under- signed concludes and finds that the Board has not sustained the burden of estab- lishing the allegations of the complaint that Eardly was discriminatorily demoted. It is clear from the record, however, and it is found, that the respondent, by refusing on or about October 23, 1944, to reemploy Quatro unless and until he arranged, insofar as it affected him, for the withdrawal of the charge theretofore filed with the Board by the Union on his behalf, engaged in discrimination against Quatro within the meaning of Section 8 (4) of the Act. This conclusion is not altered by the fact that Quatro accepted the condition imposed by the respondent. Nor was the respondent's conditional refusal to reemploy Quatro any the less discriminatory because the proof on the hearing of the instant case indicates. that the validity of the charge then on file would not have been sustained." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with its operations described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to be unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. 14 A different conclusion might have been reached had the foremen refused to return to their jobs and had in effect gone on an economic strike to enforce their demand. But the foremen while remaining on their jobs could not with impunity defy the proper orders of management. Cf. Matter of Mt. Clemens Pottery Co , 46 N L R. B 714. 16 See, e. g., Matter of Peyton Packing Go., 49 N. L. R. B. 828, 848. 16 See Matter of Mt. Clemens Pottery Co ., supra. 17 See Matter of Kramer et al., 29 N. L. R. B 921. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY It has been found that the allegations of the complaint that Joseph Eardly was demoted for the-reason that he had joined and assisted the Union and had otherwise engaged in concerted activities for the purpose of mutual aid and protection are-not supported by substantial evidence. It will, therefore, be recom- mended that the complaint be dismissed as to those allegations. It has further been found, however, that the respondent, by refusing to reem- ploy Arthur Quatro unless and until he withdrew his name from unfair labor practices pending at the time in the Board's Regional Office, discriminated against Quatro because he had filed charges under the Act and thereby violated Section 8 (4) of the Act. Because of the respondent's unlawful conduct in this respect, the undersigned is persuaded that, unless enjoined, danger of the commission by the respondent in the future of like and related unfair labor practices is to be anticipated from the respondent's conduct in the past. In order to effectuate the policies of the Act, it will, therefore, be recommended that the respondent be ordered to cease and desist from discharging, refusing to reinstate or reemploy, imposing conditions upon continued employment or reemployment, or otherwise discriminating against any employee because he has filed charges or given testimony under the Act, or in any other manner interfering with the rights of employees to file and prosecute charges and to give testimony under the Act. It will also be recommended that the respondent post appropriate notices at all its Detroit, Michigan, plants in the form and manner hereinafter indicated advising its employees that it will comply with this recommendation. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. Foreman's Association of America is a labor organization within the meaning of Section 2 (5) of the Act. 2 By refusing to reemploy Arthur Quatro unless and until he withdrew his name from unfair labor practice charges filed by Foreman's Association of America with the Board, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (4) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. 4. By demoting Joseph Eardly and thereafter refusing to reinstate him to his former status, the respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) and (1) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, Briggs Manufacturing Company, Detroit, Michigan, its officers, agents, successors and assigns, shall : 1. Cease and desist from discharging, refusing to reinstate or reemploy, impos- ing conditions upon continued employment or reemployment, or otherwise dis- criminating against any employee because he has filed charges or given testimony under the Act, or in any other manner interfering with the right of employees to file and prosecute charges and to give testimony under the Act. BRIGGS MANUFACTURING COMPANY 587 2. Take the -following affirmative action which the undersigned finds will effec- tuate the policies of the Act : (a) Post at each of its plants in Detroit, Michigan, copies of the notice at- tached to the Intermediate Report herein, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; (b) File with the Regional Director for the Seventh Region, on or before ten (10) days from the date of the receipt of this Intermediate Report, a report in writing setting forth in detail the manner and form in which the respondent has complied with the recommendations herein made. It is further recommended that the complaint, insofar as it alleges that the respondent discriminated in regard to the hire and tenure of employment and terms and conditions of employment of Joseph Eardly and thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, be dismissed. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies 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. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.38 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65. As further provided in said Section 203.39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. ARTHUR LEFF, Trial Examiner. Dated November 14, 1946. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 discharge, refuse to reinstate or reemploy , impose conditions upon continued employment or reemployment, or otherwise discriminate against any employee because he has filed charges or given testimony under the Act. WE WILL NOT in any other manner interfere with the right of our employees to file and prosecute charges and to give testimony under the National Labor Relations Act. BRIGGS MANUFACTURING COMPANY, Dated ------------------------ By ------------------------ ---------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material.