The Elwell-Parker Electric Co.

In the Matter of THE ELWELL-PARKER ELECTRIC COMPANY and UNITED ELECTRIOAL, RADIO & MACHINE WORKERS OF AMERICA (CIO) Case No. 8-C-2021.-Decided January 03, 1918 Mr. Richard C. Swander, for the Board. Thompson, Hine and Flory, by Mr. J. W. Havighurst, and Mr. S. K. Towson, of Cleveland, Ohio, for the respondent. Miss Marie J. Reed, Mr. Joseph Kres, and Davis and Davis and Handelman, of Cleveland, Ohio, for the Union. DECISION AND ORDER On February 27, 1947, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, find- ing that the respondent had engaged in and was engaging in certain un- fair labor practices 1 and recommending that it cease and desist there- froth and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the respondent had not engaged in certain other alleged unfair labor practices and recommended that the complaint be dismissed with respect to such allegations . Thereafter, the respondent and the Union filed exceptions to the Intermediate Report and supporting briefs. The respondent requested and was granted permission to argue before the Board in Washington, D. C. On November 6, 1947, the Board notified the respondent that it had rescinded its action in granting oral argument and that, in lieu of oral argument, any party desiring to do so would be permitted to file within 20 days a supplemental brief or writ- ten argument setting forth the matters which would have been covered in the oral argument. Accordingly, the respondent and the Union submitted supplemental briefs. 1 The Trial Examiner found that the respondent violated Section 8 ( 1) and 8 ( 3) of the original National Labor Relations Act, 49 Stat. 449. Insofar as is material herein, these provisions are continued in Sections 8 (a) (1) and 8 (a) (3) of the Labor Management Relations Act, 1947. 75 N. L. R. B., No. 124. 1046 THE ELWELL-PARKER ELECTRIC COMPANY 1047 The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except insofar as they are inconsistent with the find- ings, conclusions, and order hereinafter set forth. We disagree with the Trial Examiner's finding that the respondent, in violation of Section 8 (3) of the Act, discharged Lenni for union activity and not, as the respondent contends, for making an objection- able remark about a female employee, Karaffa. As shown in the In- termediate Report, Lenni was in fact guilty of the offense charged. Admittedly, this was not an isolated instance of his use of abusive language to fellow employees. Indeed, only about 6 weeks before the incident in question, Lenni was severely reprimanded for calling As- sistant Foreman Hencke offensive names and was warned, under pen- alty of discharge, against repetition of this conduct. Nevertheless, this warning went unheeded. That Lenni's misconduct and not his union leadership was the mo- tivating reason for his discharge is persuasively demonstrated by the absence of anti-union hostility on the respondent's part, to which the discharge could be attributed. In fact, the record affirmatively estab- lishes, as the Trial Examiner found, that the respondent has recog- nized and bargained in good faith with the Union since 1943, during which time the respondent has executed a series of written agreements and disposed of grievances thereunder, and generally complied with War Labor Board directives in the settlement of disputes with the Union. Moreover, had the respondent been desirous of ridding itself of Lenni because of his union leadership, it could have availed itself of the opportunity to do so only a week before the discharge when Lenni unlawfully forced his way into the plant to call the employees out on strike.2 The respondent, however, condoned such misconduct. Under all the facts and circumstances, we are not convinced that Lenni's discharge was motivated by anti-union considerations. Ac- cordingly, we shall dismiss the complaint in its entirety. 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 complaint issued herein 2 The respondent frankly conceded that this misconduct was not a factor in its decision to terminate Lenni 's employment 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against the respondent, The Elwell-Parker Electric Company, Cleve- land, Ohio, be, and it hereby is, dismissed. CHAIRMAN HERZOG and MR. JOHN M. HOUSTON took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Richard C. Swander, for the Board. Messrs. J. W. Havighurst and S. K. Towson, of Cleveland, Ohio, for the re- spondent. Hiss Marie J Reed, Mr. Joseph Tires, and Davis and Davis, of Cleveland, Ohio, for the Union. STATEMENT OF THE CASE Upon amended charges filed on November 29, 1946, by United Electrical, Radio & Machine Workers of America (CIO), herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Di- rector for the Eighth Region (Cleveland, Ohio), issued its co-inplaint dated December 2, 1946, against The Elwell-Parker Electric Company, Cleveland, Ohio, herein called the respondent. The complaint alleged that the respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (.7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, the amended charge, and a notice of hearing were served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance: (1) that in and since May 1943, the respondent violated Section 8 (1) of the Act (a) by ridiculing, vilifying, criticizing, and disparaging the Union and its representatives, (b) by intimidating and threatening its employee-representatives with discharge, demotion, and other punishment because such employees en- gaged in concerted activities, (c) by interrogating its employees concerning the internal affairs of the Union, and (d) by interfering with the selection by its employees of their Union's negotiating committee; (2) that on or about July 25, 1946, the respondent violated Section 8 (1) and (3) of the Act by discharging employee Don Lenni for the purpose of discouraging membership in the Union and because he engaged in concerted activities, joined, assisted, and represented the Union; and (3) that in and since May 1943, the respondent violated Section 8 (1) and (5) of the Act by ridiculing and disparaging the representatives of the Union and of its employees and by refusing "to bargain collectively and to negotiate in a bona fide manner" with the Union as the exclusive bargaining representative of an appropriate bargaining unit of the respondent's employees. In its answer, the respondent denied generally its commission of the unfair labor practices alleged in the complaint. Pursuant to notice, a hearing was held from December 16 to December 21, 1946, inclusive, at Cleveland, Ohio, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent, appearing by counsel, and the Union, appearing by representatives, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the beginning of the hearing, the undersigned granted a motion made by counsel THE ELWELL-PARKER ELECTRIC COMPANY 1049, for the respondent and not opposed by counsel for the Board nor by the representa- tives of the Union, for a separation of the witnesses during the hearing. At the end of the Board's case, the undersigned denied a motion made by counsel for the respondent to dismiss the complaint. During the course of the hearing, a number of the witnesses for the Board gave testimony concerning the alleged actions and statements of J. T. Kist, the respondent's factory superintendent. On each of the last 2 days of the hearing, counsel for the respondent stated that Kist was ill and that, because of his physical condition, he had been ordered by his physician not to testify at that time. Counsel for the respondent, there- fore, moved that the hearing be adjourned for 30 days to permit Kist's testi- mony to be taken at the end of that time. Upon the further voluntary statement by counsel for the respondent that he was not certain whether Kist would be well enough to testify even by that time, the undersigned denied the motion for the adjournment, with the suggestion that counsel might move to reopen the hearing to take Kist's testimony if he were able to testify before the completion and issuance of this Intermediate Report. No such motion has been made At the end of the hearing, an unopposed motion to amend the complaint and the answer to conform to the proof as to dates and the spelling of names was granted. The hearing was closed after oral argument before the undersigned by counsel for the Board, counsel for the respondent, and the representative appeaiuig at the hearing for the Union. The undersigned has. received briefs from the respondent and the Union. Although advised of their right to file proposed findings of fact and conclusions of law, none of the parties has done so. Upon the entire record in the case and from leis observation of the witnesses, the undei signed makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, The Elwell-Parker Electric Company, is an Ohio corpora- tion having its general office and place of business in Cleveland, Ohio, where it is engaged in the manufacture, sale, and distribution of electric industrial trucks, tiactors, and cranes. During its last fiscal year, the respondent pur- chased for its use raw materials and supplies of a value in excess of $1,000,000, of which approximately 75 percent was obtained from points outside the State of Ohio During the same year, the respondent sold products manufactured by it at its plant in Cleveland, Ohio, of a value in excess of $2,000,000, of which approximately 90 percent was shipped to points outside the State of Ohio The undersigned finds that the respondent is engaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED United Electrical, Radio & Machine Workers of America (CIO) is a labor organization admitting to membership employees of the respondent. III THE UNFAIR LABOR PRACTICES A The appropriate unit and the Union's representation of a majority of the employees therein On April 19, 1943, the Board's Regional Director for the Eighth Region, acting pursuant to an election agreement between the respondent and the Union and in 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accordance with the majority vote of the employees in the election, certified the Union to be the exclusive bargaining representative of the respondent's employees in a specifically described appropriate bargaining unit. Consistent with this certification. the complaint in the present proceeding alleges, the respondent's answer admits, and the undersigned finds (1) that all production and maintenance employees, including production clerks, but excluding foremen, supervisors, main office help, and guards, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act, and (2) that on and at all times since April 19, 1943, the Union has been, and is, the duly designated bargaining representative of a majority of the employees in the aforesaid appropriate unit and that, pursuant to the provision of Section 9 (a) of the Act, the Union has been, and now is, the exclusive repre- sentative of all the employees in the aforesaid -unit, for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. B. The alleged interference, restraint, coercion and refusal to bargain in good faith 1. General history of bargaining and the contentions of the parties Since April 19, 1943, the representatives of the respondent and of the Union have met in numerous conferences on contract provisions and on grievances. As a result of these conferences and various intervening Regional and National War Labor Board directives, the parties executed a series of contracts and agree- ments, the first of which contracts was signed on June 21, 1943 The last and current contract between the parties was signed on May 17, 1946. The first contract, effective from June 21, 1943, until June 21, 1944, contained a substantial number of provisions upon which the parties had reached agreement, and provided for submission to the War Labor Board of the specific issues upon which they had been unable to agree. The second contract, executed on June 22, 1944, merely extended the provisions of the first contract for an additional year, pending clarification by the Fifth Regional War Labor Board of a directive order issued by it on March 1, 1944. The third contract, executed on or about April 27, 1945, but pre-dated June 21, 1943, restated the originally settled provisions of the 1943 contract and, in addition, incorporated the provisions prescribed by directive orders issued by the Regional and National War Labor Boards in 1943, 1944, and the early part of 1'945. By its literal terms, this third contract covered only the original contract period from June 21, 1943, until June 21, 1944. It was apparently intended by the parties, however, not only to be the completion of the original 1943 contract, but to be subject to the 1944 extension of the original contract to June 21, 1945. This construction was accepted by the Fifth Regional War Labor Board, which issued a directive order on July 21, 1945, directing that The terms and conditions of the parties' contract which expired June 21, 1945, shall be extended pending execution of a new contract. The extension shall be without prejudice to the rights of either party in respect to the issues in dispute regarding the new contract, including the issue of retro- activity. The issue of retroactivity to which reference was thus made, had been raised by the Union's demand, approved by the Regional War Labor Board on March 1, 1944, that wage increases eventually granted by the respondent as the result THE ELWELL-PARKER ELECTRIC COMPANY 1051 of grievances pressed by the Union, should be retroactive to the dates of the filing of the grievances. In the third contract, the respondent had accepted this prin- ciple of retroactivity as stated in the Regional War Labor Board directive Of course, so far as the negotiations on a new contract in 1945 were concerned, the question of retroactivity was still open Moreover, in a number of conferences between the respondent and the Union's committee, notably one held on or about October 25, 1945, at the office of the Fifth Regional War Labor Board, the re- spondent objected to the Union's admitted practice, sanctioned both by the Regional War Labor Board and the National War Labor Board, of encouraging the employees to file grievances for wage increases without first making request therefor to the respondent.' As a result of the meeting on or about October 25, 1945, the Union and the respondent compromised existing retroactive claims and within a few days executed a memorandum embracing the compromise, which stated however that the settlements established "no principles or prece- dents " The general questions of retroactivity and the propriety of the Union's practice thus remained unsettled so far as the negotiations of the parties on a new contract in the latter part of 1945 and the beginning of 1946 were concerned. Inability to reach an agreement on these particular matters was only one of the factors which strained relations between the parties in their bargaining on a new contract in the fall and winter of 1945. During that time, the respondent charged the Union, directly and in a letter distributed among the employees, with inciting boycott threats which had been received by the respondent from other union locals In a letter sent to the respondent on November 1, 1945, the Union denied this charge. On November 8, Sheldon K Towson, the respondent's presi- dent, issued another letter to the respondent's employees in which he explained the respondent's resistance to the Union's then current demands for provisions in the new contract for maintenance-ot-membership and check-off, on the ground that such provisions for union security would interfere with the employees' free- dom in selecting and changing their bargaining representatives. Affirming his acceptance of the principle of collective bargaining and his intention to bargain in good faith with the employees' chosen representatives, Towson also pointed out to the employees in this letter that a breakdown in bargaining on these two points left the employees the choice either (1) "to put [these issues] to a test of strength by closing down the plant and seeing whether your side or my side can last the longest," or (2) "to notify the Company that you are withdrawing your demand for Union security " Towson further said iii this letter, in effect, that by withdrawing its demand for the security provisions in question, the Union could impress the respondent with its strength and its reliance upon the freely given support of the employees. Thereafter, on January 14, 1946, Towson, in still another letter to his employees, referred to his receipt of a notice from this Board of the Union's application for a strike vote under the 'War Labor Disputes Act, and then stated that in view of this fact and the expiration of the powers of the National War Labor Board, the respondent was canceling that por- tion of the contract which had been prescribed by War Labor Board directives but would abide by the other provisions which it had voluntarily accepted. On January 28, 1946, the Union called a strike which lasted until May 23, 1946. During the bearing, counsel for the Board expressly disavowed any contention ' In an interpretative directive issued on July 24, 1944, and approved by the National War Labor Board on January 26, 1945, the Fifth Regional War Labor Board specifically stated that presentation by an employee of a request for a wage increase was not a condi- tion precedent to the initiation of a grievance. 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that this was a strike caused by unfair labor practices, although during its course, on March 12, 1946, the Union filed charges with this Board in Case No. 8-C-1926, that the respondent had refused to bargain with the Union. These charges were withdrawn, however, on April 5, 1946, when the Union and the respondent started conversations leading toward the settlement of the strike. As a result of these conferences, the terms of a new contract were agreed upon, the strike was settled, and on May 23, 1946, the strikers returned to work. The contract thus agreed upon was for the term of a year, was executed on May 17. 1946, and was still in effect at the tune of the hearing. It is undisputed that in the negotiations. the various contract issues were all discussed by the parties and that the submissions to the War Labor Board were a result of the parties' inability to reach an agreement on certain issues. It is the contention of the Union and counsel for the Board, however, that since May 1943, the respondent by its ridicule, disparagement, and general treatment of the Union's bargaining committee not only has generally inter- fered with, restrained, and coerced its employees in the exercise of their rights under Section 7 of the Act, but has also interfered thereby with the representa- tion of the employees by the Union's bargaining committee. Counsel for the Board asserted at the hearing that in these respects and notwithstanding the negotiation and execution of the various contracts which have just been outlined, the respondent has not bargained collectively with the Union in good faith as required by Section 8 (5) of the Act. The respondent has denied throughout this proceeding that it has in any way interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed in the Act, and has con- sistently asserted that its negotiation and execution of the various contracts with the Union, clearly demonstrate that it has bargained with the Union in good faith. We turn now to a discussion of the substance of the issues as thus limited by these opposing contentions. ' 2 The specific acts and conduct alleged to be unfair labor practices (a) The respondent's rejection of the "harmonious relations" clause proposed by the Union On or about May 12, 1943, the Union submitted to the respondent a proposed form of contract, which contained the prefatory statement : The intention of the following agreement is to establish harmonious relations between the Employer and the Union. At the first bargaining conference with the Union's bargaining committee on or about May 19, 1943, Towson, the respondent's president, insisted that this clause be eliminated. From a composite of the credible, consistent testimony of Towson, of Chester Nikodyin (the general manager of a manufacturers' as- sociation of which the respondent was a member), and of Union Committeeman Don Lenni, the undersigned finds that Towson told the union committee that the clause in question was pure verbiage, that it implied a current absence of harmonious relations, that harmonious relations could not be established in any event merely by agreeing upon their establishment, that the respondent was not compelled to make such an agreement, and that the respondent was appear- ing in the contract negotiations because the law required it to do so. When Joseph Kres, a local full-time representative of the Union and not an employee of the respondent, thereupon asked Towson whether he did not want harmonious relations, Towson replied, "I'm merely saying that I am here to negotiate with THE ELWELL-PARKER, ELECTRIC COMPANY 1053 you because the law provides for it." 2 As a result of the position taken by Towson, the Union agreed to eliminate the "harmonious relations " clause from the contract which the parties signed on June 21, 1943. (b) The respondent 's alleged attempts to interfere with the composition of the Union's bargaining committee Employee Don Lenni became a member of the Union 's bargaining committee in May 1943, and was elected its chairman in August 1943. Shortly before Lenni 's election as chairman , J. T. Kist, the respondent's factory superintendent, asked Lenni whether the Union was going to elect a new chairman. Upon Lenni's affirmative answer, Kist said , "Well, now it would be a good idea if we had somebody on the committee who was about 50, 55 years old, and settled, and who knows the way of the Company, knows what we want here and can get along with us. We want somebody who is thoughtful enough in age and that would not come in like a youthful hot-headed man would come in with a lot of hot-headed ideas and crazy demands." 8 Similar remarks , with additional shafts directed at Lenni who was reelected chairman of the Union's bargaining committee in January 1944 and January 1945, were made by Superintendent Kist to Union Committeeman Gerald Curry before Lenni's renomination for the union chairmanship in December 1945 and again in December 1946. According to Curry's testimony, which the under- signed credits , Kist's statements were essentially the same oh both occasions. After asking Curry who Curry thought would be on the committee the following year and after being informed by Curry that the choice was up to the Union's members, Kist said , "You ought to get some older men on that committee. You ought to get some men that know the Company here, that know the way we do things around here, you shouldn't have these radical people on your com- mittee . . . Don [Lenni] is too radical ; you shouldn't have him on the com- mittee You ought to get somebody here that we can negotiate with better." As has been noted, there have been numerous conferences between the re- spondent's representatives and the Union 's committee since April 19,1943. During this entire period, a full -time paid local representative of the Union attended these meetings and participated in the discussions and decisions . Until early in 1944, Joseph Kres served in this capacity for the Union ; thereafter , Marie Reed was substituted by the Union for Kres. According to the uncontradicted testimony of Lenni , which the undersigned credits, President Towson on one occasion, and Superintendent Kist on at least three occasions, told Lenni that the Union and the respondent would get along better if Kres were eliminated and if the committee did not always run down to the Union 's office.4 According to Lenni's further uncon- tradicted testimony , which the undersigned also credits , when Marie Reed later succeeded Kres as the Union's local representative and was dealing with Superin- 2 This finding is based upon the testimony of Union Committeeman Lenni, which the undersigned credits, rather than the testimony of Kres that , according to Towson 's state- ment , The Company had no intention of establishing harmonious relations ." It is to be noted that in every other respect Kres ' testimony concerning the conference of May 19, 1943, is consistent with the findings made In the text , the instant deviation was apparently the result of Kres ' misconstruction of the substance of Towson 's remark 3 This finding is based upon the testimony of Lenni. As has been noted , Kist was ill and unable to testify at the time of the hearing. Other findings hereinafter made as to acts and statements of Kist , are likewise based upon what the undersigned regards to be credible uncontradicted testimony. * Lenni testified that these remarks concerning Kres were made repeatedly but gave spe- cific testimony only as to the four occasions referred to in the text. 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tendent Kist on job classifications in the spring of 1945, Kist then objected to Miss Reed's proposals and told Lenni, "If we still had Kres in on this, we wouldn't have this trouble. Now Marie Reed steps in and we get an entirely different picture on what this job classification is going to be about or what it is going to wind up in," In spite of these criticisms of, and objections to, the participation 'of the Union's local representatives in the dealings of the Union with the respondent, the local representative continued to attend the bargaining conferences and all the War Labor Board conferences as well. (c) The respondent's alleged restriction of discussion in bargaining and grievance conferences According to the testimony of Union Chairman Lenni and Committeemen Curry and Ross, Superintendent Kist criticized Lenni for being too sarcastic and dis- playing a "nasty attitude" in the meetings with the respondent's officials. The undersigned credits the uncontradicted testimony of these witnesses as to the specific instances in which Kist made such remarks. It appears therefrom, and the undersigned finds, that Kist reproved Lenni for being too sarcastic or nasty on the following occasions: (1) when Lenni told Kist in early 1945 "to get a dic- tionary" while they were discussing the meaning of the language used in the respondent's written answer to a grievance filed by the Union ; (2) when, at about the same time, Lenni accused the respondent of "chiseling " by requiring a time- keeper regularly to take off 2 hours in the middle of a normal shift and then to work an additional 2 hours without overtime pay after the men on the shift had finished their work; ( 3) when Lenni , in criticizing a foreman 's withdrawal of his previously, privately assured support of a wage increase for a particular em- ployee, asked Kist, "What have you done to those men that they are so afraid of you, that they get up here and they just seem to be tongue-tied?"; and (4) when Lenni, in August 1945 , accused Kist of "ganging up" on a union committeeman by summoning him with his foreman to Kist's office to discuss the committeeman's alleged charge in a previous negotiation meeting that "somebody is cheating in [the] plant " As further evidence of the respondent's alleged interference with the Union's representation of the employees, there in uncontradicted testimony by Union Committeeman Curry and Local Representative Kres, winch the undersigned credits, that Chester Nikodym, the representative of the manufacturers' associa- tion, and Superintendent Kist asked Lenni in bargaining conferences why he did not let the rest of the committee talk and that Kist, on occasions, would turn to one of the other committeemen for support on a matter upon which Lenni had just spoken. (d) Other alleged interference tioath the bargaining committee Reference has already been made to the meeting between the Union's com- mittee and the respondent's officials at the Regional War Labor Board Office on October 25, 1945, in which the respondent objected to the Union's admitted .practice of encouraging its members to file grievances for wage increases without first filing a request with the respondent. Union Chairman Lenni and Committee- man Curry testified that Richard Blansett, the respondent's personnel director, in voicing these objections, spoke directly to Lenni, who thereupon asked Blan- sett whether it was a personal issue, to which Blansett replied, "You're damn right, and I will get you yet". Blansett and Nikodym, who was also present at the meeting, testified that Blansett spoke to the committee generally. They THE ELWELL-PARKER ELECTRIC COMPANY 1055 also denied that Blansett had made any threat to Lenni. In view of Lenni's habitual role as spokesman, it would appear, and the undersigned finds, that whether or not Blansett singled Lenni out for criticism, the union representatives might well have gotten such an impression, However, the undersigned credits Blansett and Nikodym's denials that Blansett made the threat attributed to him by Lenni and Curry. Within a short time after the strike, which ended with the return of the strikers to work on May 23, 1946, the union committee, including Lenni and Representative Reed, agreed in a meeting with the respondent's officials, in- cluding Superintendent Kist and Personnel Director Blansett, that both sides would attempt to prevent post-strike 'recriminations between the Union and non-union employees 5 As a result of this "peace agreement," the respondent re- ceived a number of complaints,-one from Foreman Elmer Hencke against Lenni, and a number from the Union against non-union employees. Whether the union complaints were made before or after the complaint against Lenni is not clear from the record and the undersigned makes no finding in that respect. In each case, however, the offending employee was reproved by the respondent. The complaint against Lenni was made on or about June 14, 1946. On that date, Superintendent Kist summoned Lenni and the union committee and in the ensuing conversation, Personnel Director Blansett asserted that Lenni had been charged with having used abusive language to another employee. The committee asked that the complaining employee be called into the conference and that they be permitted to see his written complaint. Blansett refused to do either. The testimony is in conflict as to whether Blansett, who stated the charge, ever re- vealed the identity of the complaining employee or the exact nature of Lenni's allegedly objectionable remarks. Blansett testified he did, and that he stated the substance of the complaint to be that Lenni, during working hours in the plant, had called Foreman Hencke "a rat." Lenni and Curry denied that there was any disclosure of the fact that Hencke had made the complaint but they admitted that Blansett eventually stated that the essence of the complaint was that Lenni had called some non-union employee "a rat." It is apparent from Lenni's testimony that he was sufficiently apprised of the nature of the com- plaint at the time to ask Blansett and Kist to summon another employee who had allegedly witnessed the conversation with Hencke and eventually to admit that he may have been "indiscreet "6 The undersigned credits the testimony of Blansett that he outlined to Lenni and the Union Committee the substance of the complaint and gave the name of the complaining employee. Blansett also told Leuui at this meeting on June 14 that any repetition of the conduct under discussion would result in discipline, and stated specifically, as he admitted in his testimony, "that goes for everyone out there. We will per- secute anyone or all of the 450 employees in that plant who continues to carry 5 This finding is based not only upon the testimony of Blansett but also upon the testi- mony of Lenni and Union Committeeman Ross. 4 The undersigned finds that Lenni's testimony as to the incident itself, as distinguished from the partial version given by him to Blansett and Kist, would indicate that it was he, not Hencke, who had begun the argument, and that he had provoked Hencke. For Lenni testified that, upon another employee's pointing out Hencke as one of the employees sus- pected of circulating a back-to-work petition during the strike, he said to Henske, "Say, Hencke, is that right? that I hear a lot of rumors that you were circulating petitions for a return to work movement during the strike?" Lenni further testified that Henske then mentioned the Union's loss of some of its stoke demands, that Lenni criticized Hencke for not supporting the strike, and that upon Henske s calling Lenin "a dictatoi," Lenni retorted "Well, I don t know where you ever got that dictator business but as long as you think I am a dictator, 1 would rather be a dictator than a stooge like you." 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the type of action out there." The union committee, particularly Committee- man Mingus, immediately. objected to Blansett's use of the word "persecute." It is undisputed that Superintendent Kist, too, said to Blansett and the committee that he thought Blansett had made a mistake and had meant "prosecute." Ac- cording to Committeeman Rose, he also made the same statement. Lenni and Committeeman Ross testified that Blansett then said that "for the purposes of the record" he would say "prosecute" but that he still meant "persecute." But Blansett testified that he admitted his mistake and that he had meant "prose- cute" and not "persecute." The undersigned credits Blansett's testimony. The testimony on an alleged attempt to intimidate a union committeeman in handling grievances remains for consideration. Union Committeeman Curry testified that when he pressed a grievance arising from the respondent's rejec- tion of a wage increase request made by employee Rossiptor in August 1946, Assistant Superintendent Harry E. Barker told him, "You know, Jerry, you better not stick your neck out too far, you are liable to get it bumped." Assistant Superintendent Barker testified that, as a reason for granting the raise, Curry told Barker that Rossiptor was indebted to the "Towson Fund Plan," a lending fund for employees of which Curry was a trustee. According to Barker, he told Curry that this was not sufficient reason to grant a man a raise and that if he were Curry he would watch his step and would not stick his neck out for every- one. In his testimony Barker explained this statement on the ground that, although he did not specifically refer to it in speaking with Curry, one of the rules of the Towson Fund Plan was that the identity of its debtors be regarded as confidential. The undersigned credits Barker's explanation and finds that under the°circumstances Curry understood the intended purport of Barker's remark. Conclusions In the opinion of the undersigned, the evidence thus far discussed presents no basis for finding any violation of the Act by the respondent. It has been found that in the various incidents involving conversations with members of the Union's committee, the respondent's officials made no threats, as charged by the Union and counsel for the Board. The letter of November 8, 1946, written by the respondent's president to the employees,7 which the Union and counsel for the Board contended was unlawful interference with the process of collective bargain- ing, represented an exercise by the respondent of its constitutional right of free speech since the letter contained no threats of reprisal on its face or in the context of events, should the employees support the Union in its bargaining demands,8 and amounted to what was apparently merely a "truthful discussion" s of fact and of the lawful position of the respondent under the circumstances. Certainly, in the light of the 3-year history of the respondent's bargaining with the Union on all issues with resulting substantial agreement, and of the fact that after lengthy discussion an impasse had apparently been reached on the issues referred to in the letter, the letter cannot be said to be an attempt by the respondent to deal directly with the employees on matters currently under negotiation and in derogation of the employees' chosen representatives. There remains for more detailed discussion only the possible significance of the facts found above, (1) that the respondent's president rejected the Union's 7 See Section III, B , 1, above. 8 N L. R B . v. Virginia Electric it Power Company, 314 U. S. 469; N. L. R . B v. American Tube Bending Co., 134 F. ( 2d) 993 (C. C A. 2 ), cert. den., 320 U. S . 768; N L R B. v. Citizen News Company, 134 F ( 2d) 970 (C C A 9). 9 Thornhill v. Alabama, 310 U S. 88, 105. THE ELWELL-PARKER ELECTRIC COMPANY 1057 proposal of a contract provision reciting it to be the "intention" of the contract "to establish harmonious relations"; (2) that the respondent's superintendent informed members of the Union's bargaining committee that the respondent wanted more mature, conservative Union negotiators-men with whom the re- spondent could negotiate better than it could with Lenni, the Union's current chairman, who was too radical; (3) that the respondent's president and super- intendent told Lenni, the chairman of the Union's bargaining committee that the Union and the respondent would get along better if Kres, the Union's paid, full- time representative did not participate in the negotiations and the Union's com- mittee did not always run down to the Union's office, although when Reed succeeded Kres, the respondent's superintendent then objected to her taking what it termed a new approach to problems which, he said, would not have occurred if Kres were still in the negotiations ; (4) that on four occasions, the respondent's superintendent reproved Union Chairman Lenni during bargaining or grievance conferences for being too sarcastic or nasty; (5) that, during negotiations, Nikodym, one of the respondent's representatives, urged Union Chairman Lenni to permit other members of the Union's committee to talk, and the respondent's superintendent would ask other committee members for support in his arguments against positions taken by Lenni; and (6) that the respondent's personnel director objected to the Union's practice of encouraging the employees to file grievances for wage increases without first requesting the increases from the respondent It is the clearly expressed objective of the Act that labor disputes be resolved by collective bargaining between employers and the freely chosen representatives of their employees rather than by tests of strength in strikes or lock-outs. The process of collective bargaining thus contemplated by the Act consists of the presentation, consideration, and discussion by the parties of their positions and arguments in an honest attempt to reach an agreement through persuasion, concession, adjustment, and compromise. The course of such bargaining, even when progressing toward the desired result, cannot be expected always to be smooth nor to be governed by the rules of a polite debating society. For the issues in labor disputes frequently generate intense feeling as sometimes do the person- alities, tactics, and forceful expressions of opposing negotiators. In such situa- tions, angry arguments, criticisms, and accusations between the negotiators, art, almost inevitable Of course, should either of the parties deflect the discussions into wrangles absorbing an undue portion of the negotiators' time and thus aban- don honest attempt at agreement upon the fundamental issues, collective bargain- ing has ceased. If the employer should be the one responsible for such a result, it constitutes a clear refusal by him to bargain collectively in the good faith required by the Act. But angry, forceful, arguments, if not unduly prolonged nor vexatiously repeated, have their place in the process of collective bargaining since they represent the transference to the bargaining table for frank treatment and attempted solution, of bitter feelings which might otherwise be heard on the picket line Thus the relations between parties engaged in collectively bargaining need not necessarily be "harmonious," nor is it incompatible with good faith in bargaining to refuse agreement, as did the respondent in the instant case, to a contract provi- sion "to establish harmonious relations." It is enough that the parties indicate their willingness to bargain, and then actually bargain, in the honesty contem- plated by the Act. Furthermore, it is not demonstrative of bad faith in bargain- ing nor obstructive of the bargaining process, for either party in conversations with the other party's negotiators, merely to criticize the latter's selection of 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiators , their tactics , and their language," or even to object to the participa- tion of particular representatives in the negotiations so long as there is no insistence that the criticisms or objections be met as a condition precedent to continued bargaining and no abandonment of further honest attempt to reach an agreement . In the instant case , the respondent certainly did not seek to terminate bargaining with the Union nor threaten to do so unless, in satisfaction of its criticisms and objections , the Union designated negotiators of the type preferred by the respondent, curbed the sarcasm of Lenni , withdrew Kres or Reed from the negotiations," permitted the other Union committeeman as well as Lenni to talk in the negotiations , or stopped the practice of encouraging employees to file wage increase grievances without first applying to the respondent for the increases. On the contrary, the respondent merely voiced its objections and then, when the Union ignored them, it still continued discussions of all matters in dispute and executed contracts embracing the agreements reached. The undersigned , there- fore, finds that the respondent did not refuse to bargain collectively with the Union in good faith . The undersigned also finds that the evidence thus far discussed does not prove that the respondent interfered with, restrained , or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discriminatory discharge of Don Lenni Don Lenni was employed by the respondent as a stock selector in the finished parts department from August 7, 1940, until his discharge on July 25, 1946. In May 1943, he was elected a member of the Union's bargaining committee ; from August 1943, he served continuously as the annually elected chairman of that committee. During the 4-month strike in 1946, he was elected and thereupon acted as the chairman of the Union's strike committee. Lenni's zealousness and aggressiveness as a union representative in the bargaining and grievance confer- ences and the respondent's criticism of his conduct in that respect is apparent from the testimony which has already been discussed. At the time of Lenni's discharge on or about July 25, 1946, the respondent had approximately 445 employees in its factory, including approximately 30 girls in production jobs and 6 girls in clerical jobs in the factory office. Girls had first been hued for these jobs during the war. At that time, Superintendent Kist, foreseeing the possibility that rough language on the part of the men might be objectionable to the girl employees, spoke to the foremen and asked them "to do what they could to hold [the bad language] down and keep it down." Neverthe- less, according to the geneial testimony at the hearing, which the undersigned credits, profanity, vulgar language, and obscenities were still common in the plant, were directed by the male employees to the female employees and were even common between the girls themselves, though not among the girl clerks who apparently kept generally to themselves. In his testimony concerning this gen- io However, not only are such statements on the part of an employer unwise ; they may amount to an unfair labor practice if they should be made to the employees generally or in connection with other unlawful interference When made only to the Union 's representa- tives and unaccompanied by other interference , as they were in the present case, they are much too trivial in and by themselves to be made the basis of an unfair labor practice finding 11 Compare the following cases , in which the employers were held to have refused to bar- gain and to have interfered with the employees ' right to choose their own bargaining repre- sentatives, because the employers had actually excluded particular Union negotiatois from bargaining conferences Matter of Hancock Brick and Tile -Company, 44 N L. R B 920, 932 Matter of New Eia Die Company, 19 N L R. B 227. 240 , enf'd as med. 118 F (2d) 500 (C C A 3) ; N L R B v. Faiyo Found) y Co , 141 F. ( 2d) 462 , 464-465. THE ELWELL-PARKER ELECTRIC COMPANY 1059 era] problem, President Towson stated that the respondent issued no general rule' forbidding indecent language , and indicated that the respondent acted only in those situations where complaints were made . A number of such complaints did however come to the attention of Kist and even Towson . One of them was a com- plaint against Lenni , which the respondent asserts was the reason for his discharge The complaint against Lenni arose from a remark he made on July 23, 1946. After the lunch hour on that day, Ann Karaffa and four other girls, all of whom worked in the factory office, passed Lenni in the plant while lie was talking with another male employee. As they (lid so, Karaffa glanced at Lenni. He thereupon said to her , "What's the matter with you , you got nose trouble or something?" Learn testified that Karaffa made a "surly" reply which he could not hear; Karaffa testified that she said, "No , not when I look at you." Lenni then said, "Fat ass, " in a tone audible to Karaffa and several of her companions 2 ICaraffa immediately complained about the incident to Factory Office Manager Randall, who promised to report it' Later in the day, she told her story to Superintendent Kist. On the following morning , Personnel Director Blansett also spoke to Karaffa and then transmitted her complaint to President Towson with the information that Karaffa was willing , and he believed the other girls would be willing, to sign a written complaint . At Towson's request, Blansett got all five of the girls to sign such a complaint . Upon receipt thereof, and with- out speaking to Lenni or to any of the other girls , whom he knew as employees in the factory office although not by name, Towson prepared the following memo- randum which he sent to Kist: Jury 25, 1946. Mr. KIST : Mr Blansett has presented to me a statement signed by several women employees to the effect that Mr. Don Lenni used foul and abusive language to one of their members during the lunch hour yesterday. Mr. Lenni has been guilty of other outbursts in the past which have been serious enough to reach my ears and he has been warned that we will not tolerate obscene language of the sort which has been reported. One of the prime responsibilities of management is to assure all employees- men and women alike of a place to work that is clean and wholesome in the moral sense as well as the physical. I therefore, see no alternative to dispensing with Mr. Lenni's services and I direct you to discharge him at once. S K. Towsow, President and General Manager. July 25, 1946. On July 25, 1946, Kist summoned Lenni and the union committee, and after reading Towson's memorandum to them in the presence of B]ansett told Lenni he was discharged. Rejecting the requests of Lenni and the committee to see the written complaint, to have the girls summoned to confront Lenni, and to permit Lenni to tell his side of the story, Kist stated that it would do no good since the president of the company had made the decision. Lenni, nevertheless, 12 Except as otherwise noted, the findings in the text as to this incident are based upon the testimony of Lenni as well as that of Karaffa herself. Since the comment was audible to the girls, had been prompted by the preceding conversation, and referred to Karaffa, it appeals immaterial whether or not Lenni actually directed it to Karaffa, as they testified, of to his male companion, as Lenni testified 766972-48-vol 75-68 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD related his version of the incident, admitting'having made the remark with which he was charged but explaining that this was the second time that day that Karaffa had lingered in passing him while he was in conversation and, in effect, that he believed she was eavesdropping. Kist remained firm in his announcement of Lenni's discharge and Lenni and the union committee left his office. According to the uncontradicted testimony of Committeemen Curry and Ross, which the undersigned credits, when they protested to Kist against the severity of Lenni's penalty later in the day, Kist replied "Well, it is out of my hands entirely. It is up to the big boss. He made the decision and it is up to him. You know Don has had this thing coming to him for a long time." In passing it should be noted, that according to the further uncontradicted testimony of Curry and Ross, which the undersigned also credits, Kist also expressed satisfaction to the union committee in subsequent grievance meetings and conferences, with their smoothness and absence of sarcasm since Lenni's departure. At the request of Curry and Ross, however, and within a day or so after Lenni's discharge , Kist did have Blansett arrange a meeting between President Towson and the union committee, excluding Lenni. The committee again protested that Lenni's discharge was too severe. Towson said, "I have read the statement of the girls involved and I've talked with Mr. Blansett and Mr. Kist and my mind is made up. He is discharged. You can do what you want to do or anything else. He won't come back here, and I don't want to talk to him." Within a week thereafter, Blansett and Nikodym met with the union com- mittee, including Lenni and Representative Reed, at the local office of the Con- ciliation Branch of the United States Department of Labor. To Reed's state- ment that the discharge was too drastic for Lenni's action, and her suggestion that Lenni be reinstated upon apologizing to Karaffa, Nikodym replied that the decision made by Towson was final. He also rejected Reed's request for arbitia- tion, which under the contract between the Union and the respondent required mutual submission. It will be recalled that Towson in his memorandum instructing Kist to dis- charge Lenni, referred to Lenni's having been warned on the occasion of "other outbursts" that the respondent would "not tolerate obscene language of the sort" reported by Karaffa. In his testimony at the hearing, however, Towson stated that his decision to discharge Lenni was based chiefly upon Lenni 's remark to Karaffa, although he had given some consideration to Superintendent Kist's repri- mand of Lenni a year and a half before the discharge for remarks which Lenni had made in the plant to an employee by the name of Albert Prospal.1i It is apparent from Towson's testimony, moreover, that the incident, previously discussed, in which Lenni called Assistant Foreman Heucke "a stooge" on or about June 14, 1946, played no role in the decision to discharge Lenni, for Towson testified that he had not known of this incident until the time of the hearing. 13 Prospal testified that Kist reprimanded Lenni on Prospal's complaint in December 1944 According to Prospal, Lenni had approached him in the plant and had asked him in the presence of several other employees why lie had not joined the Union. Upon Prospal's statement that he would never join the C I. 0 as long as lie lived, Lenni said that Prospal was a "cheap that wouldn't spend a dollar a month to help to go along with the boys " The undersigned credits the testimony of Prospal rather than the testimony of Lenni which was to the effect that Prospal in answer to Lenin's question as to why he did not join the Union, said, "I wouldn't join that God dam Communist outfit of yours if it was the last thing I did," and that Lenni replied, "Well, Al, don't be kidding around. You know why you don't join the Union. You haven't got the guts to join the Union. It takes a fellow with a little courage in this plant to join the organization." THE ELWELL-PARKER ELECTRIC COMPANY 1061 One other disturbing incident in which Lenni was involved and which Towson in his testimony asserted was not a factor in his decision to discharge Lenni, occurred just a week before the discharge. On July 16, 1946, Superintendent Kist rejected a request made by Lenni and the Union Committee that the em- ployees be excused early that afternoon to attend a public rally protesting the proposed elimination of 0 P. A. price ceilings. Kist immediately posted a notice to this effect on the bulletin board in the plant, stating also in the notice that any employee who quit early would be suspended from work for a day. Nevertheless, about 150 of the employees, including Lenni and 3 other members of the Union Committee (Curry, Ross, and Brown)," punched their time cards and left work an hour early that afternoon. On the following morning, the respondent excluded them from the plant, telling each that he was suspended from work that day, but permitted the other employees to enter the plant and go to work. While the excluded employees waited outside, the plant, the Union's local representative, Joseph Kres, Lenni and the 3 members of the Union Committee visited the office and asked Personnel Director Blansett to let them work but Blansett re- fused. They then asked Blansett permission to enter the plant to "bring the rest of the people out." Blansett said that they had no legal right to do so. Thereupon, Kres, Lenni, and the union committee members, pushed their way past the guard at the plant gate and moved about in the plant. Blansett followed them and finally persuaded them to leave. Instead of dealing with Lenni and the Union Committeemen immediately upon their return to work the next day, Blansett and Kist awaited President Towson's return from a trip and then re- ferred the matter to him. On the day after his return, Towson summoned Lenni and the other members of the Union Committee to his office and said to them, "Now, I am sorry to come back to the factory and find that all this has hap- pened in my absence." After stating that he would probably be justified in discharging all of them, he said "I have decided not to do that. And I am going to ask you to go back to your jobs and to forget about the whole incident, and I'll forget about the whole incident." In view of this statement by Towson at the time and his already discussed testi- mony that this incident in fact played no role in his decision to discharge Lenm, Lenni's participation in the forced entry of the plant cannot be relied upon to justify his discharge. While counsel for the-respondent made no such contention, he did contend at the hearing and in his brief that the unwillingness of Towson to avail himself of the opportunity to discharge Lenni for entering the plant contrary to orders, demonstrates the absence of any disposition on the part of Towson or the respondent to discharge Lenni because of his union membership or his union leadership. A non-discriminatory disposition, however, is not the only possible explanation of Towson's forgiveness of Lenni and the other com- mitteemen Theie were apparent practical considerations as well The incident involved not only Lenni and his fellow committeemen individually but also the union employees who, in the event that Lenni was discharged, might well have resorted to a renewal of the strike from which they and the respondent had so recently emerged. Moreover, as will presently appear, the instant argument of counsel for the respondent is in direct conflict (1) with the inferences normally to be drawn from the respondent's summary treatment of Lenni a week later in contrast with the leniency and consideration shown by the respondent to other employees when they were charged with offensive language and conduct, and (2) 14 Dingus, the other Union Committeeman , was on vacation. 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the explanations for disparity of treatment given by President Towson and Personnel Director Blansett in their testimony. Upon the uncontradicled credible testimony of witness for the Board and for respondent, the undersigned finds that in three instances when complaints were brought to Superintendent Kist by girl employees concerning objectionable con- duct and indecent remarks made to them by male employees, each of the offend- ing men, unlike Lenni, was given an opportunity to deny or explain and then was merely reprimanded and warned against repetition In the first of these cases, on April 28, 1945, a foreman was charged with showing photographs of nude, female figure to various girl employees and asking the girls to pose for him. After Superintendent Kist interviewed the girls and the foieman, and Kist, Tow- son, and one of the older women employees, had inspected the photographs pro- duced by the foreman at Kist's request (some of which showed an undraped fe- male figure in the background). President Towson wrote a memorandum to Kist in which he said, in part, "The writer finds nothing vulgar or indecent about these pictures, or the manner of asking the girls to pose for pictures. In the writer's opinion, [the foreman] violated the ethics of an executive in showing pictures and talking photography to these girls during working hours " Kist thereupon returned the pictures to the foreman and told him not to bring any more pictures into the plant or he would be discharged. In the second case, a male employee was reported to Kist in the summer of 1945 for making indecent remarks and offensively touching a girl employee. After being called into the office by Kist, he resumed his work and never thereafter molested the gir135 In the third case in December 1945, a foreman was merely reprimanded by Kist and required to apologize to a girl employee for having made a remark which, in the opinion of the undersigned, was coarser and more offensive than that made by Lenni to Karaffa. In addition to this disparity between the discipline meted out to Lenni and to other men for comparable misconduct, the explanation given by Personnel Di- rector Blansett and President Towson, for not affording Lenni the usual oppor- tunity given to other employees under charges to deny or present excuses for their conduct, indicates that the respondent dealt summarily and severely with Lenni, not because of his remark to Karaffa, but rather because of his leadership of the Union, and the surprising notion that in view of his Union leadership, lie was not entitled to the same considerate treatment received by other em- ployees. Thus, in this connection, Blansett, in explaining why Lenni was not interviewed before it was decided to discharge him, testified as follows : The set-up there in the plant is that before an employee can be discharged or given any disciplinary action, I must be called into the case to protect the employee And I mean by that that I give the employee a chance to tell me everything that happened, wherein I might make a decision that he was being discharged because of resentment by the foreman, or by something that the employee could have said. Now, in every case where there is a discharge in the plant of that nature, I am called in on it, with the exception of where an employee might be caught stealing, or sabotage-I can't just think of the other-well, lie might tell the foreman, "I won't work for you" or lie might tell him "Go to hell " . . Yes, insubordination. ,5 The employee in question did not testify nor did Kist who, as has been noted, was ill at the time of the hearing The instant finding is based upon the testimony of the girl who- made the complaint According to her, she entered Kist s office with the male employee- and after telling her story, left before Kist spoke to the man. THE ELWELL-PARKER ELECTRIC COMPANY 1063 In those cases the foreman does have the right to fire those employees with- out consulting me. - However, any employee fired in that plant has a light to file a grievance, and I would come in on it. In Mr. Lenin's case, I did not get in on it and the fact of discussing it, because of the mere importance of Mr. Lenni's position in that plant. When asked what he meant by Lenni's "importance," Blansett said, "as chief steward of the Union." In his testimony concerning the disparity in the respondent's treatment of Lenin and its treatment of the foreman who had been charged with showing the girl employees indecent pictures, Towson testified in similar vein: . . . In firing him [the foreman] I would fire an individual foreman. He had no organization behind him, or anything of the sort. In Bring Lenin, the discharge of one man, Mr Lenin, was not in itself important, but the fact that that man was a chief steward indicated to me that rather than doing any possible injustice to Mr. Lenni, I would be doing a possible injustice to his union. That is why it was a much larger decision than it would be simply firing the foreman. Up to the time that a union came into the plant, it was the responsibility of management to see that every employee, whether foreman or elevator op- erator, got a square deal, and so on. At the time the Union came into the plant, those people who chose to give their bargaining rights to the Union, in my opinion, removed themselves from that category ; so that Mr. Lenni had a union behind him [The foreman who had shown the girls the photo- graphs] had no union behind him, but was relying on the old time square deal policy. I think it was up to me to give [the foreman] every opportunity to clear himself, as I did, but it was not up to me to personally take a hand in Mr. Lenni's case, because I was dealing not with Mr. Lenni as an individual, I was dealing with the Union. When Towson was asked by Board's counsel whether Lenin as an employee was not entitled "to the same square deal policy" which the ,respondent extended to non-union employees, Towson agreed that he was On the further question by counsel whether Lenni in fact had been "granted that right," Towson replied merely, "not at that point." In summary, it appears clear from the pertinent testimony, and the under- signed finds: (1) For 3 years, Lenni was the aggressive leader of the Union in the plant and has tactics repeatedly annoyed the respondent. (2) As shown by Kist's remarks to the other union committeemen after Lenin's discharge the respondent was relieved not to be required to deal with Lenni any longer. (3) Although, according to the respondent, Lenni was discharged for his use of vulgar and indecent language to a girl employee, every one of the other employees who committed comparable offenses was merely reprimanded. (4) Unlike the other offenders, Lenni was given no chance to defend himself against the charges. (5) Instead, the president of the respondent, without ever speaking to the com- plaining girl employees whom he knew only by sight and not by name, relied upon the truth of their written charges against Lenni. (6) Lenin was thus deprived of the "square deal" generally accorded to employees against whom charges were made, because of the "importance" of his position "as chief steward 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Union"; because, unlike the non-union employees, he had "a union behind him" for his protection ; because he and the other employees "who chose to give their bargaining rights to the Union . . . had [in the opinion of the respondent] removed themselves from [the] category" of employees entitled to "a square deal" ; and because the respondent, therefore, "was dealing not with Mr. Lenni as an individual . . . but with the Union." Upon these considerations, the undersigned concludes that the respondent discharged Don Lenni on or about July 25, 1946, not for his use of objectionable language, but because of his leadership of the union activities in the plant, and that the respondent thus discriminated against him in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing the employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States. and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Since it has been found that the respondent has engaged in unfair labor prac- tices within the meaning of Section 8 (1) and (3) of the Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. The undersigned has found that by discharging Don Lenni on July 25, 1946, the respondent discriminated against him in regard to his hire and tenure of employment, thereby discouraging membership in the Union. Such discrimina- tion "goes to the very heart of the Act," 1' and constitutes the grossest form of Violation of the rights guaranteed by Section 7 and generally protected by Sec- tion 8 (1) of the Act That an employer has deliberately resorted to discrimina- tion, as has the respondent in the present case, indicates not merely his disposition to commit similar acts of discrimination in the future but also (1) his broader and basic "attitude of opposition to the purposes of the Act to protect the rights of employees generally," " and (2) the consequent likelihood of his resorting to the lesser acts of interference, restraint, and coercion with these rights as guar- anteed by Section 7 and protected by Section 8 (1) of the Act'8 The preventive purposes of the Act will be thwarted unless the Board's order is coextensive with this threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent industrial strife which burdens and obstructs commerce, and thus to effectuate the policies of the Act, the undersigned will recommend that the respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. 18N. L R . B, v Entwistle Manufacturing Co, 120 F (2d) 532, 536 (C C A 4). See also, N. L. R. B. v. Antomotitie Maintenance Machinery Co., 116 F. (2d) 350, 353, (C C. A 7). 17May Department Stores Company v. N L R. B. 326 U S 376 28 See N L. R. B v Express Publishing Company, 312 U. S. 426, 437. THE ELWELL-PARKER ELECTRIC COMPANY 1065 It will also be recommended that the respondent offer Don Lenni immediate and full reinstatement to his former or substantially equivalent position" with- out prejudice to his seniority or other rights and privileges ; and that the re- spondent also make Don Lenni whole for any loss of earnings suffered by him by reason of the respondent's discrimination against him by payment to him of a sum of money equal to that which he would have normally earned as wages from the date of the discrimination against him, to the date of the offer of rein- statement less his net earnings," during that period. It should be made clear, however, that this recommendation for Lenni's reinstatement does not indicate an opinion by the undersigned that the respondent would not have been justified in discharging Lenni, if it appeared from the record that it actually had done so because of the language used by him to other employees in the Piospal, Hencke, and Karaffa incidents, or for his forced entry of the plant on July 17, 1946. Of course, upon reinstatement, Lenni shall be subject to the same application of such legitimate rules as the respondent applies to its other employees, with due allow- ance, however, for proper freedom in his dealings with the respondent's repre- sentatives should he continue to be, or again become, the agent of a union rep- resenting any of the respondent's employees. The undersigned will also recommend the dismissal of the complaint so far as it alleges that the respondent violated Section 8 (5) of the Act by refusing to bargain collectively with the Union in good faith. 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 United Electrical, Radio & Machine Workers of America (CIO), is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Don Lenni and thereby discouraging membership in United Electrical, Radio & Machine Workers of America (CIO), the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 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 are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not refused to bargain collectively with the Union in good faith as alleged in the complaint. 'B In accordance with the Board 's consistent interpretation of the term , the expression "former or substantially equnalent position " is intended to mean "former position wherever possible, but if such position is no longer in existence , then to a substantially equivalent position " See Matter of The Cha$e National Bunk of the City of New York, San Juan, Puerto Rico, Branch, 65 N L R B 837. 20 By "net earnings " is meant earnings less expenses such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking emplo3 ment elsewhere See Matter of Cros8ett Lumber Company, 8 N. L. R B 440 Monies received for work performed upon Federal , State , county, municipal , or other work -relief projects shall be considered as earn- ings. See Republic Steel Corporation v. N. L. R B , 311 U. S. 7. 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed hereby recommends that the respondent, The Elwell-Parker Electric Company, Cleveland, Ohio, its officers, agents, successors, and assigns shall: 1 Cease and desist from : (a) Discouraging membership in United Electrical, Radio & Machine Work- ers of America (CIO), or in any other labor organization of its employees, by discriminatorily discharging employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment ; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to self-organization, to form labor organiza- tions, to join or assist United Electrical, Radio & Machine Workers of America (CIO), 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 to Don Lenni immediate and full reinstatement to his former or substantially equivalent -position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination of the respondent against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of the respondent's discrimination against him to the date of the offer of reinstatement, less his 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, 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; (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 with the foregoing recommendations. It is recommended that the complaint be dismissed insofar as it alleges that the respondent violated Section 8 (5) of the Act by refusing to bargain col- lectively with the Union in good faith. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the respondent has notified the Regional Director for the Eighth Region 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-20338 of said Rules and Regulations, file with the Board, Rochambeau Building, Wash- THE ELWELL-PARKER ELECTRIC COMPANY 1067 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 recoid or proceeding (including ruling 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 the exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. 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 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. WILLIAM F. SCHARNIKCW, Trial Ecoaminer. Dated February 27, 1947.