Columbia Electric Manufacturing Co.

In the Matter of COLUMBIA ELECTRIC MANUFACTURING COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT 54 Case No. 8-C-1914.-Decided January 15, 1948 Mr. Thomas E. Shroyer , for the Board. Messrs. A. S. Brien and John H. WaZ/:er, of Cleveland , Ohio, for the Respondent. Messrs. Herbert L . Wakeman and Howard Tausch, of Cleveland, Ohio, for the Union. DECISION AND ORDER On April 17, 1947, Trial Examiner Irving Rogosin issued his Inter- mediate Report in the above-entitled proceedings, finding that the respondent had engaged in and was engaging in certain unfair labor practices and reconimending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. No exceptions to the Intermediate Report were thereafter filed with the Board. The Board has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. As no exceptions have been filed, and upon the entire record in the case, the Board hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Upon the entire record in the case, and pursuant to Section 10 (c) ,of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the respondent, Columbia Electric Manufacturing Company, Cleveland, Ohio, and its officers, agents, -successors, and assigns shall : 1. Cease and desist from : 1 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. 103. 837 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Discouraging membership in International Association of Ma- chinists, District 54, or in any other labor organization of its employ- ees, by discriminating in regard to the hire and tenure of employment or any terms or conditions of employment of its employees; and (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Association of Machinists,, District 54, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2: ',Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer Barbara Sievert immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to her seniority and other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of the discrimina- tion against her, by payment to her of a sum of money equal to the amount which she normally would have earned as wages during the period from the date of the discrimination against her to the date of the respondent's offer of reinstatement, less her net earnings during such period; (b) Post at its plant in Cleveland, Ohio, copies of the notice at- tached to the Intermediate Report, marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by the respondent's representa- tive, be posted by it immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; and (c) Notify the Regional Director for the Eighth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. INTERMEDIATE REPORT Mr Thomas E Shroyer, for the Board Messrs A. S. Bi ion and John II. Waller, both of Cleveland, Ohio, for the Respondent. 2 Said notice, however, 5ha11 be, and it hereby is, amended by striking fiom line 3 thereof the words "THE RECOMMENDATIONS OF A TRIAL EXAMINER," and substituting in lien thereof the words, "A DECISION AND ORDER " In the event that this Order is en- forced by decree of a Circuit Court of Appeals, there shall be inserted, before the worde, "A DECISION AND ORDER" the words "DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING " COLUMBIA ELECTRIC MANUFACTURING COMPANY 839 Messrs. Herber t L 117akcmnan and Howard T6usch, both of Cleveland, Ohio, for the Union. STATEMENT OF THE CASE Upon a second amended charge duly filed by International Association of Machinists, District i4, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eighth Region (Cleveland, Ohio), issued Its complaint on November 14, 1946, against Columbia Electric Manufacturing Company, of Cleveland, Ohio, herein called the Re- spondent. alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act Copies of the complaint, accompanied by notice of hearing thereon, were duly served upon the Respondent and the Union. With respect to unfair labor practices, the complaint alleged, in substance, that the Respondent: (1) since January 1, 1946, by (a) prohibiting its employees from soliciting union membership during non-working hours, (b) threatening its employees with loss of employment if they continued their union activity, and (c) deprecating the Union and its leaders. (2) on or about July 10, 1946, dis- charging and thereafter refusing to reinstate Barbara Sievert' because she engaged in concerted activities and joined and assisted the Union, thereby dis- criminating in regard to her hire and tenure of employment, and discouraging membership in the Union; and (3) by the foregoing conduct, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (1) and (3) thereof. The Respondent, in its answer filed November 20, 1946, in effect, admitted the jurisdictional allegations of the complaint, but denied the commission of .Inv unfair labor practices Pursuant to notice, a hearing was held at Cleveland, Ohio, on December 16, 1946. before Irving Rogosin, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The Boaid and the Respondent were represented by counsel ; the Union, by its representatives. All participated in the hearing, ,and were afforded full opportunity to be heard, to examine and cross-examine -witnesses, and to introduce eNidence bearing upon the issues. At the close of the Board's case, counsel for the Respondent moved to strike, or, in the alterna- live, to dismiss the complaint with respect to, the allegations stated above in (1) (a), (b), and (e). The motion was denied' The motion was renewed toward the close of the hearing, at which time counsel for the Board joined in the motion to the extent that it related to the allegation covered by (1) (c), above The motion to dismiss as to that allegation is hereby granted, but other- wise denied Motion of counsel for the Board made before the close of the hearing to conform the complaint to the proof as to formal matters, not af- fecting the substantive issues, was granted, without objection, with respect to all pleadings. Counsel for the Board, and for the Respondent, availed them- selves of the opportunity afforded all parties to argue orally upon the record. None of the parties, however, availed themselves of the right to file proposed lmdings and conclusions or briefs. Upon the entire record in the case, and from his observation of the wit- nesses, the undersigned makes the following : 1 Erroneously-named Sivert in the complaint 2 Although ruling on the motion was reserved at the time , counsel was advised to reg'ard' the motion as having been denied, for purposes of presentation of his case. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Columbia Electric Manufacturing Company, an Ohio corporation, with its- principal office and place of business at Cleveland, Ohio, is engaged in the manu- facture, sale, and distribution of motors, generators, and electrical instruments. During the year 1945, the respondent purchased raw materials valued in excess of $100,000, of which in excess of 60 percent was purchased and shipped to it from points outside the State of Ohio. During the same period, the Respondent manufactured products valued in excess of $500,000, of which in excess of 75, percent was shipped to points outside the State of Ohio The Respondent con- cedes that it is engaged in commerce within the meaning of the Act 3 II. THE ORGANIZATIONS INVOLVED International Association of Machinists, and District 54 thereof, are labor organizations admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Discwrninationa in regard to love and tenure of enlployment; interference, restraint, and coercion Barbara Sievert was employed by the Respondent on September 3, 1942, as a punch press operator at an hourly rate of 45 cents She continued in the same capacity until July 10, 1946, the date of her discharge, at which time she was receiving 921/Q cents an hour, the highest rate of any female employee at the plant. In February 1946, she became interested in organizing a union at the plant, and, through her husband, a member of the parent Union, procured membership, applications which she distributed among employees in the winding and punch press departments during non-working time She secured the signatures of 13 employees. During the same month, she attended several union meetings, and was designated the organizer for the Union at the plant. Several days after Sievert began to solicit the employees for membership in the Union, Charles Kanyuck, foreman of the winding department, approached her while she was engaged in conversation with a group of employees during the lunch period at the plant, and remarked that he did not want any "propaganda going around in the shop." Sievert asked him what lie meant by the remark. He replied that she "understood him "" In March, several weeks later, Adolph Friedman, the Respondent's president, approached Sievert at her work, and asked her "what [she] was worried about." When she remarked that she was not worried about anything, Friedman sug- gested that he had occasion to go through the plant frequently ; that if she wanted anything she had only to ask him ; and that if she was dissatisfied with the work, she was doing, she could quit and seek employment elsewhere.` I These findings are based upon the admissions in the Respondent's answer to the juris- dictional allegations in the complaint, and the stipulation of the parties at the hearing In view of the fact that this incident occurred so soon after the commencement of the organizational activity at the plant - Sievert s known promotional efforts in behalf of the Union; Kanyuck's admission that he had used the word "propaganda" on this occasion, without offering any explanation, either at the time or at the hearing, for the use of the term ; and the events which subsequently transpired, related hereinafter, the undersigned infers and finds that Kanyuck ii as referring to the organizational activity of the employees, and that the employees so construed the connotation. 5 This finding is based upon the undisputed and credited testimony of Sievert. Although Adolph Friedman was present at the hearing, and was proffered by Respondent's counsel for cross-examination to counsel for the Board, he was not called to testify Thus, Sievert's COLUMBIA ELECTRIC MANUFACTURING COMPANY 841 On another occasion during the same period, Alvin Friedman, Adolph's Son, and vice president of the Respondent, approached Sievert at her press and told her that if he "caught [her] talking to anybody in the shop" he would discharge her, because "all [she] talked about was the Union." Sievert retorted that she was entitled to "do as [she] darned please on [her] own time." Friedman started to leave, but turned back to remark that as long as she remained in the respond- ent's employ, she was not permitted to talk about the union. Late in March, or early in April, employee John Sole, who was obtaining stock near Sievert's press, engaged her in conversation regarding the press next to her which had broken down. Friedman, Sr, who apparently heard the employees engaged in conversation, approached and, in Sole's presence, told her that if he "caught [her] talking to him again," he would discharge her, reiterating that all she talked about was the Union On July 9, 1936, pursuant to a consent election agreement entered into, and approved by the Regional Diiector, on June 27, 1946, an election was held to determine whether the employees desired to be represented by the Union.6 Sievert attended the pre-election conference at the Regional Oftice with Union Representatives Wakeman and Howard `1ausch and Shop Steward James Bina, representing the Union. Adolph Friedman and Alvin Friedman, president and vice president, respectively, and their representative were present in behalf of the respondent. On July 10, 1946, the day after the election, Sievert was dis- charged. On the morning in question, Sievert arrived at the plant at about 7: 20 o'clock.° Her station was located in the punch press department toward the rear of the plant building. In order to reach her station, it was necessary for Sievert to walk through the office at the front of the building to the winding department in which the time clock ivas located, thence through several other departments before reaching her own. While ringing in at the time clock, she encountered employees, Henry Diamond and Fred Bina. The three employees walked to the punch press department at the rear of the plant, where Diamond and Sievert were employed. According to Sievert, there had been some dissatisfaction, and claim of unfairness, among the employees, in connection with the election,' and she discussed with- Diamond and Bina the calling of a strike at noon. Sievert and Diamond con- tinned talking until the starting signal was sounded at 7: 30. According to Sievert, she thereupon commenced work, and remained at her machine until about 8:30, except for a brief interval at about 7: 40, mentioned hereinafter. Foreman Kanyuck, in charge of the winding department, testified, however, that he arrived at the plant on the day in question just as the starting signal was being sounded. He proceeded through the stock room to his office at the further end of the winding department, changed his clothes, and walked out into the winding department . It was then, according to him, approximately 7: 35. He testified .that he observed Sievert near the dip tank in the winding department talking to a group of employees, among whom be identified Paul Walkley, Kent Sorrell, Fred Bina, and Harry Hunter, all employed in his department, and all testimony as to this episode stands uncontindicted Inasmuch as the record fails to disclose any basis for Friedman 's conclusion that Sievert had been "worried " oi dissatis- fied with her job, except as may be inferred from her undisputed testimony that the em- ployees had been refused a raise which they had requested , as a consequence of which they decided to organize , the undersigned infers and finds that Friedman 's remarks to Sievert were occasioned by her organizational activity. 6 The election resulted in the defeat of the Union . Of 68 eligible voters, 66 ballots were cast , 29 for the Union , and 37 for no union ; and the , results were so certified 7 Her time card , received in evidence , reveals that she punched the time clock at 7 : 23 a. in Starting time , announced by the sounding of a whistle of siren, was at 7. 30. 8 No objections to the conduct of the election have been filed. .842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD away from their respective stations The group dispersed, and Kanyuck pro- ceeded about his routine duties without comment Although Sievert testified that she engaged in no further conversation with em- plo^ ees that morning between the time she started work and the time she was dis- charged later that morning, apart from the conversation with Diamond and Bina,° and a momentary conversation with two female employees shortly afterward, presently to be discussed, it is apparent, and the undersigned finds, upon the basis of the testimony of Kanyuck, and Paul Walkley, called as a witness in rebuttal by counsel for the Board, that some discussion took place in the presence of the employees named by Kanyuck, which he observed, although it was probably a continuation of the conversation referred to by Sievert, and so regarded by her It should be noted, however, that, according to Walkley's credited testimony, this discussion occurred before starting time at 7: 30, and that Kanyuck himself, in the affidavit procured by the Field Examiner, had fixed the time at "about 7: 30 a. m." At about 7: 40 that morning, Sievert left her department for the winding department, and requested employees Ruth Walker and Lucille Martin to meet her outside the plant after the close of vv ork at 4: 00 o'clock that afternoon That was the extent of her conversation with these employees 10 Foreman Kanyuck, who set the time of this occurrence at about 7. 50, observed Sievert talking to them, and remained watching them for about 2 or 3 minutes, some distance away. During this interval he was approached by employee Chuck Macy, of the assembly room, who was on his way to the drinking fountain in the winding department, and informed that Sievert was "trying to get a walkout at noon " Kanyuck pro- ceeded toward the employees, and when he reached to within 10 feet of them, Sievert left and continued in the general direction of the rest room away from her station Kanyuck said nothing to her or to the other employees. Shortly after 8: 00 o'clock, Kanyuck stated to Friedman, Sr , that he "wanted [Sievert] kept out of [his] department'; that she had been talking to various employees in his department ; and that he had "heard that she was trying to have a walkout Soon after« ard, Kanyuck similarly complained to Friedman, Jr. that Sievert had been talking to employees in his department and that lie wanted her kept out of there According to Friedman, Jr., he proceeded directly to the punch press department, and observed that Sievert was not at her machine. Returning from the- department, he encountered Harry Silver, assistant super- intendent in charge of production, and informed him that he thought it best to discharge Sievert. Silver concurred in the decision." Friedman, Jr, there- 9 Although Sievert testified originally that James Bina was also in the group, she later testified that she was not certain that lie had been among them, although she was definite in her testimony that Fred Bina, his brother, had been. Inasmuch as the Respondent's i ecords for the (lay in question disclosed, as was later stipulated, that Janes Bina was ab- sent that day, it is apparent that she was mistaken regarding his presence on•that occa- sion It is noted, however, that Foreman Kanyuck. nnho testified that James Bina had been absent on that date, had been similarly mistaken, when he had stated to a Field Exanulei. in an affidavit obtained in the course of investigation, that Tames Bina had been present at the time The undersigned is satisfied that Sieveit's testimony lmc not been adversely affected by the fact that she was mistaken with respect to James Bina's presence during the incident in question, or by the further fact that she was unable to recol- lect Walkley's presence among the group io Kaynuck admitted, in cross-examination, that when lie questioned walker and Martin about a week after this incident regarding the subject of their conversation with Sievert, lie was informed that Sievert had meiely asked then to meet her after work. it Although Kanyuck did not so testify, according to Silver, Kanyuck had ieported to him between 8 15 and 8' 30 that morning that Sievert had been interfering with his depart- ment Silver testified that lie thereupon went to her department and ascertained that she was not at her machine . He met Friedman , Jr., shortly afterward and discussed the mat- COLUMBIA ELECTRIC MANUFACTURING COMPANY 843 upon instructed the bookkeeper to compute and prepare her pay check. The latter delivered the pay envelope to Friedman as Sievert, returning from the direction of the rest room, passed him on her way to the punch press department. He in- formed her that she was "through," handed her the pay envelope, and proceeded to her machine on which he shut off the motor Friedman, Jr., testified that she asked for her release, and he informed her that it would be mailed to her- According to Sievert, however, she had remained at her machine that morning, after notifying employees Walker and Martin to meet her outside the plant after work, until about 8: 20, when she went to the rest room which was located in a corner of the winding department 12 She was away from her machine about 5 minutes. Altogether, she testified, she had not been away from her machine for more than 10 or 15 minutes that morning As she approached the drinking fountain between the machine department and the winding department, and stopped for a drink, she noticed Friedman, Jr., talking to Assistant Superintend- ent Silver. According to her version, Friedman handed her the pay envelope, and told her that it had been 'understood by the Labor Relations Board that [she] was through, because the Union had lost the vote " She requested her release, and was informed that she did not require one "in [her] case," but that it would be mailed to her later.13 Although there is some conflict in the testimony regarding the precise time Sievert was away from her machine between shortly after 7: 40, following her brief visit to employees Walker and Martin, and the time she returned from- the rest room shortly after 8: 30, Sievert admitted that she had gone to the rest room (luring that interval It should be noted, however, that the Respondent made no specific objection to her having left for the rest room when she slid, despite the fact that a regular rest period had been provided at 9: 30 The sole objection advanced, and relied upon by the Respondent as the ground for discharge, was that she had been talking to employees during working time, thereby inter- fering with production. The record discloses, and the undersigned finds, that Sievert was away from her machine a total of 10 or 15 minutes,. including the time consumed in her visit to employees Walker and Martin, and later to the rest room, between 7: 40 and 8: 30 on the morning in question After receiving her pay envelope from Alvin Friedman, Sievert returned to her department for her personal belongings. As she prepared to leave, she was asked by employees Diamond and Sole where she was going. She exhibited her pay envelope to them, and they thereupon shut down their presses and joined her in leaving the plant. Sievert, accompanied by Diamond, then reported to the union offiee.14 Later that day, Sievert reported to the Board's Regional Office. The following day, a Field Examiner telephoned the Respondent regarding Sievert, and was informed by Adolph Friedman that the matter was being handled by his son who was out of town. The Field Examiner later reached Alvin Friedman, and, ter with him When Friedman informed him of the conversation he had had with Kanyuck, and asked Silver whether he had heard about it, Silver intormed Friedman that Kanyuck had already spoken to him about it 11 There was a regular 5-minute lest period at 9 30 in the morning 11 Although Friednman. Jr . testified that lie had no conversation with Sievert on this occa- sion, he',ond that to which lie testified, lie was not asked, nor slid he specifically deny, the statement attributed to him by Sievert in connection with the Union's losing the election and her consequent discharge The undersigned credits Sievert's testimony and finds that lie made the statement which she ascimbed to him. 14 Diamond and Sole were given their pay checks by the bookkeeper at about noon later that clay when they were observed outside the plant. As in the case of Sieveit, their pay was computed to 9 00 o'clock that morning The weekly pay peiiod ended on Wednesday night. Sievert was discharged on Wednesday morning 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In a telephone conversation, suggested that the Respondent reinstate Sievert irrespective of the merits of the case, intimating, according to Friedman, that the occurrence of the discharge so soon after the election might result in an unfavorable reaction upon the Board. Friedman informed him that the Re- spondent had not replaced Sievert and would consider reinstating her provided she would "come in and talk it over with [him]." This was communicated to Sievert, and the next day she reported to the plant. She was interviewed by Alvin Friedman, who stated that the Respondent would consent to reinstate her provided she would agree not to interfere with the employees during working time. According to Friedman, Sievert remarked that the Respondent had to take her back because the Board would compel it to do so Friedman thereupon telephoned the Field Examiner and informed him that Sievert was in the office; 'that the Respondent was willing to reinstate her provided she understood that she was not to interfere with the employees during working time; and suggested that the Field Examiner speak to her over the telephone. This was done, al- though the record does not indicate what was said by either of the parties to this conversation. According to Sievert, however, Friedman, after informing her that the Re- spondent was under no obligation to reinstate her, told her that if she wished ,to return to work she would be required to "come to his terms," aid sign an -employment application. She further testified that Friedman had stated that -she would be required to begin as a new employee at an hourly rate of 65 cents. -She refused to sign the application, insisting upon her seniority and the same rate of pay she had been receiving at the time of her discharge. Friedman -declined to reinstate her unless she signed the application, and, at her request, furnished her with a release, and Sievert left. Several days later, according ,to her, she telephoned Friedman and asked him if he intended to take her back. He replied that he would reinstate her if she agreed to his terms. Friedman admitted that, following his telephone conversation with the Field Examiner, he. submitted a new employment application for Sievert to sign. He -testified, however, that the reason he required her to do so was that there had been some change in her name, address or marital status, and that the informa- tion was necessary to bring her personnel file up to date. He denied that there was any discussion regarding the rate of pay she would receive, asserting at the -hearing that she would have been rehired at her former rate, and, although he did not specifically so testify, presumably without prejudice to her seniority. He admitted, however, that he did not inform her either that she would be reinstated at the same rate or without loss of seniority, offering in explanation that they "didn't,get that far,"-that he submitted the application for her to sign, and that the interview was abruptly terminated by her refusal to do so. Friedman further admitted that Sievert telephoned him, later the same day, according to him, and asked him whether she would receive the same rate of pay if she returned to work. He testified that he declined to discuss rates of pay over the telephone, and told her that "if she would come back we would settle the other matter first. and then go into the matter of the rate afterwards." 'c There was no showing, however, that Sievert had refused to agree to refrain from interfering with employees during working time, and it is clear that the personal interview with Friedman terminated on ,Sievert' s refusal to sign the new employment appli- cation, and not because of any refusal to comply with the former requirement 15 By reference to "the other matter ," it is apparent that Friedman intended the matter -discussed over the telephone with the Field Examiner involving the commitment from Sievert not to interfere with employees during working time COLUMBIA ELECTRIC MANUFACTURING COMPANY 845 Hence. Friedman's refusal to tell her over the telephone at what rate of pay she would be rehired, on the ground that the matter of her agreeing not to interfere with the employees during working time had not yet been settled, is unconvincing, and lends support to-Sievert's basis for concluding that she was to be regarded as a new employee. While the undersigned is not altogether convinced that Fried- man specifically stated to Sievert, during her personal interview following her discharge, that she would be required to start at a rate of 65 cents, in view of her later telephone inquiry regarding the rate at which she would be reinstated, it is apparent from what transpired, including the requirement that she -sign a new employment application, that Friedman intended, and Sievert reasonably con- cluded. that she would be treated as a new employee. The explanation offered by Friedman for insisting upon Sievert's signing a new employment application is unpersuasive No explanation was offered, for example, as to why any change in name, address or marital status could not have been noted on her original applica- tion already on file. Moreover, contrary to the position adopted at the hearing, the Respondent had admitted in its answer to the complaint that she would be 'considered a new employee." It will be seen fionn what has been said that the sole ground relied upon by the Respondei4t for Sievert's discharge was her alleged interference with employees during working hours. The Respondent concedes that there was no rule against ,casual visitation or brief conversation between employees during working time ,on subjects unrelated to their work To this, the respondent admits, it had no objection. Furthermore, the record discloses that such conduct, including con- ,versation among employees lasting several minutes beyond the sounding of the moining starting signal, was not uncommon, and there was no showing that such -employees werh ever reprimanded or disciplined therefor, much less discharged. 'With respect to Sievert, the conduct of which the Respondent apparently com- tplained, and on the basis of which it rested its justification for her discharge, involved it conversation with employees which clearly began some 7 minutes 'before starting time on the morning in question, and which, on the evidence most favorable to the Respondent, did not last more than 5 minutes beyond starting time, and the visit to the two female employees at 7 • 40, which did not last more than 2 or 3 minutes, according to the Respondent's witness." This is not to sug- gest that an employer may not require employees to refrain from visitation or conversation not related to their work during working time. and to discipline them for failing to observe the requirement. The record here, however, reveals that such a policy, if it existed at all, was not enforced. Again, it is recognized that an employer may, with complete immunity, proscribe union activity during working time. Here, however, the Respondent makes no contention that it dis- charged Sievert because she engaged in union activities during working time On the contrary, it expressly disavows any such contention, asserting that her dis- charge was in no wise prompted by consideration of such activities. Sievert had been employed nearly 4 years at the time of her discharge. Her woik performance and deportment had been satisfactory during that entire period. Her rate of pay had more than doubled, and she was admittedly the The pertinent language in the answer follows : * * * Barbara Sivert (sic) called at my office and we talked over all the reasons why she was discharged and informed her that if (sic) would be necessary, if she started work, to sign a new application, as she would be considered as a new em- ployee * * * Inasmuch as the Respondent made no contention that her visit to the rest room was a factor in its decision to discharge her, no consideration is given to that incident How- ever, even if it relied upon it, in part , as a ground for discharge, in view of the discrimina- tory motive hereinafter found , the undersigned would reach the same conclusion. • 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD highest paid female employee at the plant. According to Assistant Superin- tendent Silver, he first began to receive complaints from employees that Sievert had been interfering with their work some 4 months prior to her discharge. Specifically, some of those complaints were that she had been asking for their addresses and telephone numbers Silver instructed Ben Filjack, the set-up nian in the press department, who was directly in charge of the employees in the department, "to keep her at her job," and to report "any incident" to him. According to Silver, Filjack reported to him on only one occasion some 4 months before Sievert's discharge that she had been away from her machine "a number of times" that day. There is no evidence, however, that either Filjack or Silver ever admonished or reprimanded her. Nor, for that matter, that Filjack was asked whether he had done so, or that he was consulted prior to her discharge.- With respect to Kanyuck, who had no supervision over Sievert, he testified that he had warned her against interfering with the employees in his department on three occasions. These warnings consisted of a request that she refrain from talking to his employees. The first occasion was the one adverted to by Sievert, when she testified, as Kanyuck admitted, that he had warned her against "spreading propaganda." It will be recalled that Sievert testified, without con- tradiction, that this had occurred during a rest period several dayseafter she undertook to organize the employees, although Kanyuck contended that it had occurred "right after the rest period in the morning." The last occasion Kanyuck spoke to her on the subject occurred about 3 weeks before her discharge, and the remaining occasion, sometime between the two. Although Kanyuck testified that he had reported to Friedman, Sr on one occasion that Sievert had been interfering with the employees in his department, the only evidence of any direct warning of discharge Caine from Alvin Friedman, who testified that he warned her 3 or 4 weeks before her employment was terminated that "unless she stopped interfering with the other workers," during working time, according to him, she would be discharged. In this connection, Friednian volunteered that he had overheard her state to the employees in the press department that they could obtain a higher rate of pay if they joined the Union. Thus, it is apparent that whatever complaints the respondent may have had regarding Sievert's alleged interference with the employees arose soon after and coincidentally with her organizational activity in behalf of the Union. While it is probable that some of the conversations in which Sievert engaged during that period occurred, in part, during working time, there is no substantial evidence that it interfered with production. It is clear, even on the basis of the testimony of Respondent's witnesses, that such conversations, many of which occurred during lunch or rest periods, before starting tinfe, or immediately thereafter, were brief, momentary or casual. Inasmuch as there was no prohibi- tion against conversations of a brief and casual nature during working time, it becomes apparent that the Respondent's objection was based, not upon alleged interference with production, but because they related to union or concerted activities It will be recalled that both Alvin Friedman and his father had admonished her soon after the commencement of organizational activities at the plant against talking to employees, upon penalty of discharge, because "all she talked about was the Union." Foreman Kanyuck's complaint t6 Friedman, Sr. on the morning of her discharge was coupled with the statement that he had heard that Sievert was attempting to induce a walk-out. Alvin Friedman ad- mitted that Kanyuck may have notified him to the same effect soon afterward. His remarks to Sievert, which be did not categorically deny, that she was "through" inasmuch as the Union had lost the election, and that it had been "understood by the Labor Relations Board" that she might be dismissed, lend further support COLUMBIA ELECTRIC MANUFACTURING COMPANY 847 to a finding of discriminatory motive. Finally, Friedman's conduct in connec- tion with Sievert's application for reinstatement, following the intercession of the agent of the Board, including his insistence upon her making a new applica- tion for employment, and, in effect, regarding her as a new employee, indicates an intent to discriminate against her. Moreover, the summary discharge of Sievert, before the end of the pay period, without furnishing her with any reason therefor or affording her an opportunity to offer any explanation, is further indicative of discriminatory intent. Hhe Respondent 's contention , in effect, that the fact that Sievert's time card had not been removed from the rack before she arrived at work on the morning after the election, negates any anti-union motivation in connection with her discharge, establishes at most that the Respondent had not reached a decision to discharge her up to that time. The Union had been defeated in the election, and the Respondent apparently considered that it heed no longer be concerned with the organizational activities of its employees When, however, it appeared that Sievert had undertaken to enlist the support of the employees in going on strike, a fact which the Respondent discovered later that morning, and before it decided to discharge her, it then concluded that the presence of Sievert, the protagonist in organizing the employees, represented a real threat of renewed union activity, which the Respondent undertook to suppress by the medium of her discharge. The undersigned is mindful of the fact that the Respondent had consented'to an election at the plant, but is not convinced that this fact is sufficient to overcome the overt acts of its supervisors and officers in interfering with Sievert's organiza- tional activity on her own time; its threat to discharge her therefor; and its .summary action in discharging her without affording her an opportunity to defend her conduct, when it discovered that she was still advocating the Union' s cause .after its defeat in the election. Upon the basis of the foregoing and upon the entire record, the undersigned concludes and finds that the Respondent discharged and thereafter refused to reinstate Sievert because of her union and concerted activities, thereby discrimi- nating in regard to her hire and tenure of employment, and discouraging mein- bership in the Union. The undersigned further finds that, by attempting to hinder and prevent her from engaging in union activities during non-working time, and by threatening her with loss of employment it she continued to engage therein, and by all of the foregoing conduct, including her discriminatory dis- charge, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating .Section 8 (1) thereof IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, it will be reconuuended that it cease and desis(therefroni, and take certain affirmative action designed-to effectuate the policies of the Act. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It has been found that the Respondent discriminated in regard to the hire- and tenure of employment of Barbara Sievert because of her of Nation with, and activity in behalf of, the Union. It will therefore be recommended that the- Respondent offer her immediate and full reinstatement to her former or substan- tially equivalent position 18 without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of such discrimination, by payment to her of a sum of money equal to that which she normally would have earned as wages from the date of her discrimi- natory discharge to the date of the offer of reinstatement, less her net earnings 1B during such period. Inasmuch as the discharge of an employee for reasons of union affiliation or activity has been regarded as one of the most effective methods of defeating the exercise by employees of their right of self-organization,=° justifying an order requiring an employer to cease and desist from infringing upon any of the rights guaranteed by the Act, the undersigned is convinced that there is real danger that the commission of unfair labor practices generally is to be anticipated from the Respondent's unlawful conduct in the past. In order, therefore, that the interdependent guarantees of Section 7 of the Act be rendered entirely effective, it will be recommended that the Respondent be required to cease and desist from in any manner interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 21 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Association of Machinists, and District 54 thereof, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment and the terms and conditions of employment of Barbara Sievert, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices aie unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the Respondent, Columbia Electric Manufacturing Company, Cleveland , Ohio, its officers , agents, successors , and assigns shall: 1. Cease and desist from : 18In accordance with the Board 's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer inexistence , then to a substantially equivalent position." See Matter of The Chase National Bank of the City, of New York, San Juan, Puerto Rico, Branch, 65 N. I, R. B. 827. 19 See Matter of Ci ossett Lumber Company, 8 N. L. R B 440, 492-498. 20N L. R. B. v. Entwistle Manufacturing Co, 120 F. ( 2d) 532, 536 ( C. C. A. 4 ) . see also N. L. R B. v. Automotive Maintenance Machinery Co., 116 F. ( 2d) 350, 353 (C. C. A. 7) 21 See N. L. R. B. v. Express Publishing Company, 312 U. S. 426; May Department Stores Company v . N. L. R B., 326 U. S 376. COLUMBIA ELECTRIC MANUFACTURING COMPANY 849, (a) Discouraging membership in International Association of Machinists, District 54, or any other labor organization of its employees, by discriminating in regard to the hire and tenure of employment or any terms or conditions of employment of its employees ; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist International Association of Machinists, District 54, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Offer Barbara Sievert immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority and other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of the discrimination against her, by payment to her of a sum of money equal to that which she normally would have earned as wages from the (late of her discrimination to the date of the Respondent's offer of reinstatement, less her net earnings during such period ; (b) Post at its plant in Cleveland, Ohio, 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 duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, de- faced, or covered by any other material; (c) Notify the Regional Director for the Eighth Region in writing, within ten (10) days from the date of the receipt of this Intermediate Report what steps the Respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the Respondent notifies said Regional Director in writing that he 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, airy 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, Wash- ington 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 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.G5 As further provided in said Section 203.39, S50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,should any party desire permission to argue ora113 before the Board, request therefor'should be made in writing to the Board within ten (10) days from the (late of service of the order transferring the case to the Board. IRVING ROGOSIN, Dated April 17, 1947. Trial Examiner. 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: W E WILL ROT in any manner interfere with, restrain or coerce our em- ployees in the exercise of their right to self-organization, to form, labor ,oiganizations, to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT 54, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. AVE WILL OFFER to the employee named below immediate and full reinstate- ment to her former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay suffered as a' result of the discrimination Barbara Sievert All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor ,organization. COLUMBIA ELECTRIC MANUFACTURING COMPANY, Employer. Date -------------------- By------------------- ---------------------------- (Representative) (Title) NOTE • Any of the above-named employees presently serving in the Armed Forces .of the United States will be offered full reinstatement upon application in accord- ance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof, and must pot be altered, defaced, or con eyed by any other material.