Victor Manufacturing & Gasket Co.

In the Matter of • VICTOR MANUFACTURING & GASKET COMPANY and UNITED AUTOMOBILE WORKERS OF AMERICA, C. I. O. Case No. 13-C-2'733.=Decided August 30,'1948 DECISION AND ORDER1 On May 23, 1947, Trial Examiner Martin S. Bennett issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices,2 and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that, the Respondent had not engaged in certain other unfair labor prac- tices as alleged in the complaint.' Thereafter, the Respondent filed exceptions to the Intermediate Re- port and a brief in support thereof. The Respondent's request for oral argument is hereby denied, as the record, in our opinion, ade- quately presents the issues and the positions of the parties. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the Respondent's exceptions and brief, 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 our findings, conclusions, and order hereinafter set. forth. I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended , the National Labor Relations Board has delegated its powers in connection with this proceeding to a three-man panel consisting of the undersigned Board Members [ Chair- man Herzog and Members Murdock and Gray]. 2Tlie provisions of Section 8 (1)-and ( 3) of the National Labor Relations Act, which the complaint, alleges were violated, are continued in Section 8 (a) (1) and ( 3) of the Act, as- amended. - 3 No exceptions .were filed in the Trial Examiner's findings with respect to these allega- -tions . We shall,disnuss the coinplaiiit as to them. 79 N. L, R. B., No. 34. 234 - - VICTOR MANI FACTURING'& GASKET COMPANY 235, 1. We do not agree with the Trial Examiner's finding that the Re- spondent violated Section 8 (1) and (3) of the Act by discharging Conforti. The Respondent asserted that a decrease in the volume of work in Department H-6 required a reduction in the number of die setters there; that Conforti was selected because he was the least effi- cient and had the least. seniority among such employees; and that but for the need to reduce its working force, Conforti would have been retained. The record supports this assertion. Thus, officers of- the Respondent credibly testified that there was a substantial reduction in the Respondent's general operations at about the time of Conforti's discharge and that the work in Department H-6 fell off about 10 per- cent. This testimony was not contradicted, nor was any proof offered to support the contention of the Union that there was no need to reduce- the number of die setters. The record also contains unquestionable proof that Conforti's efficiency rating, covering the 18-month period before his discharge, was lower than that of any other die setter in his- departnient, and that he had the least seniority among them. Considering Conforti's relatively low standing in his department and'the apparent need to lay off a die setter, we are unable to say that the Respondent's selection of Conforti was discriminatory. True, as. the Trial Examiner found, the evidence does not support the Re- spondent's contention that it had theretofore followed a departmental seniority rule. However, it was not shown that any different rule had_ been applied in the past, for throughout the war period there had been no occasion to'reduce the working force. In view of these facts, we believe that the record does not contain sufficient evidence to prove that the method used for selecting the die setter to be laid off was evolved 'by the Respondent for the purpose of reaching Conforti because of his known sympathies for the Union. Accordingly, we hereby reverse the Trial Examiner's finding that Conforti's discharge-was discriminatory within the, meaning of Section 8 (1) and (3) of the Act, and shall dismiss the complaint as to him. 2. We agree with the Trial Examiner that the Respondent dis- charged Pletka because of his activities on behalf-of the Union, and not because of the January 14','1947, sticker incident. In reaching this conclusion, we rely particularly on Stone's threat to discharge Pletka if he continued his union activities. '- However, we attribute no sig- nificance to the fact that,Ahrens and Struzina, Pletka's supervisors; were promoted on the day following the discharge. The record shows, and we find, that Ahrens''chauge of status had been planned for several months and that Struzina's promotion was•a normal progression in the Respondent's supervisory staff. . 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Victor Manufac- turing & Gasket Company, Chicago, Illinois, its officers, agents, suc- cessors, and assigns shall : 1. Cease and, desist from : (a) Discouraging membership in United Automobile Workers of America, C. 1-0., or any other labor organization, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner with respect 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 employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Automobile Workers of America, C. I. 0., or any other labor organization, to .bargain collectively through representatives of their own choosing; and to engage in other concerted activities for the purpose of collective bar- gaining 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 Charles Pletka immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (b) Make whole Charles Pletka for any loss of pay suffered by reason of the Respondent's discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned as-wages during the period from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during such period; (c) Post- at its plant,in Chicago, Illinois;'copiesaof •the<, notice,.at- tached to the Intermediate Report herein marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, after being duly signed by the Respondent's repre- sentatives, shall be posted by the Respondent immediately upon re- ceipt thereof,, and maintained by it for, sixty (60) consecutive days ° This ' notice, however, is hereby amended by striking, ,therefrom the' words : THE • RECOMMENDATIONS OF A,_ TRIAL, EXAMINER" and substituting in lieu , theieof the words:, "A DECISION 'AND. ORDER',", and by further sticking therefrom the name of Nick Conforti. ' ,In the event, that this Order is enforced by decree of a Circuit Court of, Appeals, there shall be inserted , before the words • "DECISION AND ORDER," the words : "A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING." VICTOR MANUFACTURING & GASKET COMPANY 237 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; (d) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent discriminated against Nick Conforti, Anthony F. Camodeca, Lanny Ward, Joseph P. McConville, Margaret E. Cecil, and Charles L. Robb, be, and it hereby is, dismissed. INTERMEDIATE REPORT Mr. Max Rotenberq. for the Board. Seyfarth, Shaw d Fairweather, by Messrs. Henry Seyfarth and Howard Hawkins, of Chicago, Ill., and Mr. Edward C. Koskoba, of Chicago, Ill., for respondent. Meyers, Meyers c& Rothstein, by Mr. Irving Meyers, of Chicago, Ill., and Messrs Ilarvey.Pearson and Frank Valle, of Chicago, Ill., for the Union. STATEMENT OF THE CASE Upon a second amended charge duly filed on January 17, 1947,' by United Automobile Workers of America, C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated January 30, 1947, against Victor Manufacturing & Gasket Company, Chicago, Illinois, herein called respondent, alleging that respondent had engaged in and was en- gaging 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 theAct. Copies of the complaint and second amended charge, accompanied by notice of hearing thereon, were duly served upon respondent and the Union. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleged in substance, that respondent : (1) discharged seven named employees 2 and refused to reinstate them because they joined the Union and/or engaged in concerted, activities, (2) from and after April 1943,. threatened and warned its employees to refrain from joining the Union and engaging in con- certed activities, and (3) by these acts and conduct interfered with, restrained. and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On February 10, 1947, respondent filed its answer wherein it admitted the allegations of the complaint with respect to the nature of its business, that it was engaged in commerce, and that the Union is a labor organization, and denied the commission of any unfair labor practices. 1 The original charge was filed December 12, 1945. ' Their names and dates of discharges are as follows : Anthony F. Comadeca___________ 9-11-45 Margaret E CecII______________ 11-27-45 Lanny ward ------------------ 9-12-45 Charles L. Robb________________ 1-10-47 Nick_Conforti__________________ 9-13-45 Charles Pletka_________________ 1-14-47 Joseph P. McConville___________ 11-20-45 °238 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD Pursuant to notice, a hearing was held at Chicago, Illinois, from February 24 to March 10, 1947, before Martin S. Bennett, the,undersigned Trial Examiner, 'duly designated by the Chief Trial Examiner. The Board and respondent were represented by counsel and the Union by its counsel and representatives. Full opportunity to be heard, to examine and cross-examine witnesses, and to in- troduce evidence bearing upon the issues was afforded all parties. During the hearing, the undersigned denied several motions by counsel for the Board and for respondent to strike the testimony of certain witnesses, and at the close of the hearing, the,motion of counsel for the Board to conform the pleadings to the proof was granted without objection. A date was set for the filing of briefs and/or proposed "findings of fact and conclusions of law with the undersigned, and a brief has been received from respondent. Respondent moved orally, prior to the close of the hearing, and also by writ- ten motion dated March 28, 1947, filed with the undersigned after the close of the hearing, to take the testimony by deposition of one Mae Gaal who was un- available during the hearing. Pursuant to agreement among the parties, the testimony of said witness was taken before the undersigned on April 9, 1947, at Chicago, Illinois. At the conclusion of said testimony, counsel for the Board objected to its incorporation in the record Ruling was reserved upon the ob- jection and the testimony is hereby ordered incorporated in the record. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : . FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Victor Manufacturing & Gasket Company is an Illinois corporation whose -principal office and place of business is located at Chicago, Illinois, where it is engaged in the manufacture of gaskets. During the year 1946, respondent purchased raw materials valued in excess of $2,000,000, of which approximately 50 percent was shipped to its plant from points outside the State of Illinois. During the same period, respondent sold finished products valued in excess of -$4,000,000, of which approximately 75 percent was shipped to points outside the ,State of Illinois. Respondent admits that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Automobile Workers of America,' affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of respondent. - III. THE UNFAIR LABOR PRACTICES A. The discharges 1. Introduction ; the union campaign Prior to'the'events--set forth' hereinafter, there had been-no union activity among respondent's employees since 1940 when the Union lost a consent,elec- tion.3 The Union commenced a new organizational campaign in September of 3 Case No. 13-R-528. VICTOR MANUFACTURING & GASKET COMPANY 239 1945 which continued until inid-December and then subsided It consisted of the distribution of union leaflets and newspapers at the plant gate and the, passing out of various stickers and book matches inside the plant. Meetings were also held from time to time of various groups among respondent's approximately 1,500 employees. Five of the seven discharges alleged herein to be discriminatory, took place during this period, namely in September and November. Interest in the Union revived in August of 1946 and the organizational cam- paign was resumed and continued in the same manner as in 1945, with activity .still being carried on at the time of the instant hearing. Two discharges, herein alleged to be discriminatory, took place during this later campaign in January of 1947. 2. The 1945 discharges Anthony Comadeca entered respondent's employ on or about September 5, 1945. He had stated in his employment application that he was an experienced die- setter and was assigned to the blanking department on the 7th floor, H-6, as a diesetter. On September 11, lie was transferred to the riveting department, .A-12, and later that same day was sent for by Employment Manager Nichols and told that he was discharged as not qualified to do the work. During this period, he solicited members for the Union and distributed union literature in the plant. According to Comadeca, he was an experienced diesetter and had no difficulty with the work during his first days at the plant other than the breaking of a knuckle pin on a press on his first day, a relatively minor occurrence. He testi- fied that his work was never criticized and that Group Leader Paul Tyrcha informed Foreman Ricar in his, Comadeca's, presence that his work was satis- factory.' On September 11, Foreman Ricar sent him to the employment office where Employment Manager Nichols informed him that a veteran had returned and that it was necessary to transfer him to another department on the first floor. The transfer was effected immediately and Comadeca spent a few hours in the riveting department, A-12, at the close of which, according to Comadeca, he was sent for by Nichols and told that another mistake had been made, although he was considered able, and that there was actually no work for him. According to Comadeca, Nichols then asked him if he would accept a job on the night shift. When Comadeca replied that lie would, Nichols then stated that Comadeca could not work nights because of his three children, that he was sorry Comadeca could not take the job, and that he was discharged. The testimony of respondent's witnesses, however, was at variance with that of Comadeca.° According to Tyrcha, Comadeca sprung a crank shaft on his second day of work because of his inexperience! Tyrcha then decided that Coma- deca was unsuited to the work on the seventh floor and so informed Foreman Ricar who arranged with Employment Manager Nichols for the transfer of Comadeca to Department A-12 where he was assigned to Foreman Prasky. Comadeca spent approximately 3 hours in A-12 and Prasky introduced him to the 40 or 50 female operators there, acquainted him with the nature of the work, and was showing him how to take apart the machines when he noticed that Tyrcha and Ricar denied this 5 Except where otherwise indicated, these findings are based on the testimony of Nichols, Tyrcha, Ricar , and Prasky which is in substantial agreement. 9 In rebuttal, Comadeca admitted,th5t he had'sprting the' crank shaft,, as Tyrcha' claimed, but alleged that Tyrcha had told him to disregard the matter as it was a common experi- ence. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Comadeca was not attentive. Comadeca then excused himself and went over to a female. employee and engaged her in conversation.? Prasky telephoned Employment Manager Nichols and stated that he could not use Comadeca in his department as he was not interested in his work and Nichols replied that he had just received unfavorable replies from Comadeca's refer- ences.8 Prasky then sent Comadeca to the personnel office where Nichols informed him that he was being discharged because his work was unsatisfactory. Although the circumstances attending Comadeca's discharge are suspicious," the undersigned was more favorably impressed by respondent's witnesses herein than by Comadeca. Comadeca did falsity his prior experience in his employment application by stating, in effect, that he had voluntarily left two companies which in fact had dismissed him, and this information had come into respondent's pos- session shortly prior to the date of his discharge. In view of the above and the fact that the undersigned accepts the version of respondent's witnesses as to Comadeca's employment history with respondent as the more reliable, it is found that the allegations of the complaint herein have not been sustained. Nick Conforti commenced his employment with respondent as a diesetter on February 12, 1943, and, according to respondent, was laid off by Foreman Ricar for lack of work in Department H-6 on September 12, 1945 It was also decided at that time, as his termination notice indicates, not to rehire him, and it is found that he was then discharged. During his employment by respondent, he worked in various departments throughout the entire plant. He received three wage increases, two of which were general in nature and one of which was a personal increase. About 2 months before his termination, he asked Foreman Ricar for a raise and was refused. He then suggested that it would be desirable to start a Union whereupon Ricar replied, "You will get fired for it." 10 In the week preceding his discharge, Conforti spoke to employees concerning joining the Union and intro- duced Comadeca and Ward, who were soliciting for the Union, to various em- ployees in the plant, telling them that Comadeca and Ward were union adherents- Conforti also informed the employees that the Union was attempting to organize the plant in order to obtain higher wages for the workers. It was respondent's contention that (1) Conforti was a most inefficient worker, and (2) because of reduced operations it became necessary to lay off a diesetter and Conforti was chosen as he had the least seniority in his department. Respondent introduced considerable evidence in support of its first contention herein that Conforti was an unsatisfactory and ineflcient worker. Thus, Emil Tijam, head of the Die Repair Department, alleged that he had complained to Foreman Ricar and General Foreman McCann of the manner in which Conforti Comadeca denied this. He claimed that he actually set up two machines that morning and that Prasky then instructed him to become acquainted with the work and the operators. 8 Two of these replies, introduced in evidence, stated respectively, that Comadeca was dismissed for poor attendance and that he would not be reemployed, and that he was dis- missed for disobedience. "According to Nick Conforti, he asked Foreman Ricar on the day after Comadeca's dis- charge by Prasky, if Comadeca had been discharged "on account of the Union." Ricar then replied that he believed this was the reason. As Comadeca's lack of ability is established by the record and as his discharge was brought about in the final instance by Foreman Prasky, the undersigned is of the opinion that this incident is insufficient in the instant case to constitute persuasive evidence of improper motivation in effecting Comadeca's dis- charge. 10 The testimony of Conforti, who was a clear and forthright witness, impressed the un- dersigned most favorably. Ricar admitted that Conforti asked for a raise,on this occasion but denied the balance of Conforti's version of the incident . His denial is not credited. VICTOR MANUFACTURING & GASKET COMPANY 241 set his dies, and that he had made these complaints two or three times a month throughout Conforti's entire tenure with respondent.11 Foreman Ricar claimed that he regularly received complaints concerning Conforti's work which averaged one a month in number and that from June to September of 1945 they averaged two weekly. Leadman Teofil Stipak alleged that he had complained to General Foreman McCann in August 1945 that Conforti spent too much time in the wash- room, and that fellow workers were perpetually complaining that Conforti was unable to do his work. General Foreman McCann alleged that he regularly received complaints concerning Conforti. Respondent also introduced exhibits to the effect that Conforti, at the time of his termination, had the least seniority of nine diesetters in Department H-6 and that he was the only one laid off, in accordance with such seniority list. Conclusions Assuming the testimony of respondent's witnesses appearing above to be true, the conclusion is inescapable that in the approximately 21/2 years Conforti was employed by respondent he was utterly incompetent and completely unable to perform his duties. On the other hand, in the opinion of the undersigned, more indicative of respondent's true reaction to these numerous complaints, assuming they were made, is the testimony of Foreman Ricar, who ordered Conforti's termination, that Conforti would not have been terminated by respondent had there been no need for a reduction of staff by respondent, and that he had never discussed these numerous complaints with Conforti. Furthermore, Ricar's testi- mony that he received no complaints other than those- concerning Conforti is rebutted by the testimony of Tijam that he regularly complained of all the die- setters in the section and that none had ever been disciplined. In addition, Employment Manager Nichols, in terminating Conforti, made no mention of the manner of performance of his duties, but referred only to the need of respondent to reduce its staff. A more accurate appreciation by respondent of Conforti's ability may perhaps be found in a letter of recommendation given him by Nichols on September 13 at the instruction of Production Superintendent Matusak.12 Nichols admitted that he had never • given a letter of recommendation to an inefficient employee, and Matusak, who elsewhere claimed that he had been informed of Conforti's poor work, admitted that favorable letters were given only where the employment record was a good one The letter, signed by Nichols, reads in part as follows : His [Conforti's] employment was terminated on the latter date because of heavy cancellations of contracts and over-abundance of diesetters in the department in which he worked. His work and knowledge of presses of all types qualifies him as a set-up man or a diesetter. In view of the above, the undersigned rejects the contention of respondent that Conforti was an incompetent worker.13 n In fact, Tijam testified that he complained of Conforti's work during 1946, although Conforti was terminated September 12, 1945. v The undersigned does not credit Matusak's denial that he authorized the preparation of this letter. He was an evasive witness who repeatedly gave conflicting testimony . Nichols was not certain whether or not Matusak was present when the letter was prepared. In the opinion of the undersigned , it is inconceivable that respondent would issue such a letter had Conforti's work been as deplorable as contended by respondent 's witnesses. 23 Respondent further contended that Conforti, during his employment by respondent, maintained an outside business which perforce contributed to his inefficient performance. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contrary to respondent's contention in its brief, the record does not reveal that respondent reduced its forces on a departmental basis only. but shows that transfers were made between departments when reductions were necessary. In fact, Conforti was transferred among several departments of the plant and had worked throughout the plant as a diesetter. With respect to his lack of seniority, as contended by respondent, the record shows that one Calabrese who had less seniority than Conforti, having commenced his employment in Depart- ment H-6 in April 1944 and one year thereafter transferring to A-19, was retained in respondent's employ after the date of Conforte's discharge " The under- signed is therefore of the opinion that the seniority list for Department H-6 does not reflect the true picture of seniority for diesetters in respondent's plant and that it is not indicative of whether Conforti would have been released from respondent's employ for economic reasons absent a discriminatory motivation. Furthermore, the plant regulations with regard to lay-offs relied on herein by respondent were not in existence at the time of Conforti's discharge and there never were any prior regulations.' In view of the above, it is found that respondent's contentions herein are not supported by the record. It is found, tinder all the circumstances and in view of Conforti's activities in behalf of the Union particularly during his last week of employment, together with the prior warning by Foreman Ricar of the penalty for engaging in union activities, that respondent was aware of Conforti's union activities. It is further found that respondent was motivated by unlawful con- siderations and terminated Conforti's employment because of his activities in behalf of the Union, thereby discriminating with respect to his hire and tenure of employment, and interfeeing w-th, restraining, and coercing its employees- in the exercise of the right, guaranteed in Section 7 of the Act. Lanny Ward commenced her employment with respondent on or about Wednes- day, September 5. 1945, as a punch press operator. on the seventh floor in Department H-6. She was assigned'to a 10-ton press and several days later to. a 22-ton press, and on September 13 was discharged, according to respondent, for absenteeism and inefficiency. During this period she spoke to'various em- ployees concerning the Union in lunch hours and rest periods. According to. Ward, her work was satisfactory and Group Leader Lillian Mallicoat compli-- neented her several times on her work This was denied by Mallicoat. Respondent introduced in evidence time cards showing that Ward did not- report for work on Monday, September 10 rand on the morning of September 13_ Ward claimed that she had notified the company prior to starting time on the- latter date that she would be in later that day. Mallicoat, Foreman Ricar, and Employment Manager Nichols denied that any report or advice to this effect had been received from Ward. Ward reported for work during the lunch hour on September 13, allegedly having: been absent that morning because of a visit to the dentist, and was told by Mallicoat to report to Foreman Riear who in turn sent her to Nichols." Nichols told her- that she was being discharged because of inefficiency and absenteeism. Ward- then stated that she was actually being discharged because of her union activities, cursed Nichols and respondent's management in strong language," and stated Assuming this contention to be true, it serves only to support the construction given herein to the letter of recommendation to Conforti '+ Calabrese resigned from respondent's employ on or about October 1, 1346 15 Nichols resigned from respondent's employ on or about September 14, 1945- 16 This language appears in full in the record. VICTOR MANUFACTURING & GASKET COMPANY 243- that she would return to organize respondent 's employees because respondent treated them as "slaves ." This was repeated several times before Ward left's According-to Mallicoat, Ward made considerable scrap on the job, was fre-_ guently away-from her machine , and was warned by Mallicoat concerning her- work.:, Thereafter,• Mallicoat complained to Ricar and mentioned these items. Ricar decided to. discharge Ward because of her spoilage , absences from her- machine, and - absenteeism , although he admitted that he decided to discharge- her irrespective of the absences from the plant, and notified Nichols who carried out the .discharge'R In view of the above, the undersigned is persuaded that the 'events herein transpired substantially as Mallicoat, Ricar , and Nichols testified. It is ac- cordingly found that the allegations of the complaint herein have not been- sustained. Joseph McConville was hired by respondent on or about September 5, 1945, as a hydraulic press operator in Department A-12 He received an individual, wage increase of 5 cents per hour , and, insofar as the record indicates , his work was not complained of. He spoke to employees concerning the Union , distributed, and collected application cards in the washroom before work and during rest periods and the lunch hour,-and also composed leaflets for the Union He was transferred ,to the night shift some time before November 19, 1945, and on that (late was told by his foreman , whom he was unable to identify by name, that there was an abundance of men and an oversupply of finished material in the plant, and that he would have to let McConville go McConville merely made a- facetious remark and was paid off at the end of the shift. In view of the above state of the record , the undersigned finds that the evi- dence is insufficient to support the allegations of the complaint with respect to, the discharge of McConville. Margaret Cectl" was hired by respondent in March 1945, as a file clerk and was transferred in May to a timekeeping position in Department A-12 During the, latter part of September or first of October 1945, she became interested in the union campaign and attended meetings, signed a card and distributed eight or nine cards among her co-workeis , and solicited membership in the Union On or about November 16, 1945, she became ill and was absent for- approximately 10 flays, returning to work on November 26. At the close of work- that day, Chief Timekeeper McNinch called her into his office, said that her work had not been kept up to date and was not up to par, and then gave her a termi- nation notice. There had been complaints on occasions since June that the records to be, maintained by Cecil had not been kept up to date . Foreman Prasky had spoken to Cecil about the condition of her records , and McNinch had spoken to her on 11 The clear and forthright testimony of Nichols which the undersigned credits. Accord- ing to ward, Nichols told her that she had a bad record at the Dodge plant in Chicago, where she had formerly been employed, and that she had been vice-president of the Union there it is significant , however, that the Personnel Department of the Dodge plant was then refusing to give out personal information as the plant had closed and the employees' records were unavailable. Mallicoat favorably impressed the undersigned and her testimony is credited. Ward's testimony was inconsistent in that she claimed that her spoilage was not unduly large, although she admitted that she had difficulty operating the large press because it was too, high for her height which was 5' 2". Upon the basis of Mallicoat's testimony and on the, basis of pictures of the presses introduced in evidence, it is found that a short girl is not handicapped in operating this press. 19 Cecil has since married and her name is now Macchione. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three of four occasions about her records being incomplete.20 Furthermore, Mae Gaal, a relief time clerk with respondent who fills in for absentee time- keepers,21 replaced Cecil during her 10-day absence in November preceding her discharge and discovered that Cecil's records were incomplete. Gaal, and an- other girl who helped out for 1 day during this period, devoted themselves to doing the daily new work that came in and also to bringing Cecil's records of former jobs up to date. Gaul, who had also substituted for Cecil during prior. absences, and particularly in August or September of 1945, told McNinch on several occasions that Cecil was behind in her work. According to Gaal, unlike, Cecil's testimony, it was vital to respondent for all records to be kept up to date daily and no work could be deferred because of its being less important 22 There-, after, as noted above, McNinch discharged, Cecil on the'day that she. returned to work. A consideration of the foregoing has failed to convince the undersigned that Cecil was discharged because of her union activities, and it is accordingly found that the allegations of the complaint with respect to her discharge have not been sustained. 3. The 1947 discharges ; interference, restraint, and coercion Charles Robb entered respondent's employ on July 17, 1945, as an apprentice toolmaker. He was a veteran, not previously employed by respondent, and was receiving benefits under Public Law 16 providing for vocational rehabilitation .of disabled veterans.2' Robb had joined the Union prior to his employment by respondent and was active during the 1945 campaign when he distributed cards, solicited membership for the Union, and attended union meetings. He was again active during the 1947 campaign at which time he distributed cards among the employees several days prior to his discharge on January 10, 1947. According to Robb, 1 or 2 days previously, a fellow worker, Pletka, gave him a number of cards bearing a union slogan as Assistant Foreman Struzina stood 5 feet away and watched them. Struzina denied that he saw or knew of this incident. The record reveals that Robb was a temperamental and difficult employee to handle, and also possessed of a highly emotional nature. He periodically com- plained that he was not receiving the proper training required under his appren- ticeship agreement, although a training officer of the Veterans Administration investigated the matter and reported that the training did meet the required standards and that Robb was the only one dissatisfied of eight veterans under the program in respondent's employ. About 2 or 3 weeks prior to his discharge, he refused to help another apprentice remove some dies, and so informed Assistant Foreman Struzina, stating that he was dissatisfied with his training; he finally did the job, however. Later that day, he was reprimanded by Foreman Ahrens for refusing to obey the order of a foreman and Robb lost his temper on this occasion, shouting at Ahrens. 20 The testimony of McNinch and Prasky which the undersigned credits. According to Cecil, her work did fall behind in August or September because of a change in timekeeping systems, but McNinch told her to do the best she could 21 Gaal has been on leave of absence since December 1946 because of illness: 22 The testimony of Gaal who impressed the undersigned favorably and was a' clear and convincing witness. 23 Under this law, the Veterans Administration and the employer jointly map out a course of training for the veteran He is paid by the employer but is awarded in, addition, a monthly subsistence allowance by the government. In the instant case, the veteran was required to attend school one evening a week for further instruction Robb's disabilityi was an anxiety state and an injury to his knee. VICTOR MANUFACTURING & GASKET COMPANY 245 One or two days prior to his discharge, Robb had an altercation with Foreman Sosnowski of the slitting department. This department cuts steel to size for use by diemakers and Robb was then assisting a diemaker who had sent him to the slitting department to return a piece of steel, which, according to Robb, had been cut to the wrong size. Robb told Sosnowski, who was sitting at his desk, that the steel had been cut improperly but Sosnowski claimed that no error had been made. Robb then swore at Sosnowski, threatened to punch him in the face, and threw the piece of steel on the desk and departed. Sosnowski complained to Struzina, Robb's superior, and told him not to send Robb back to the slitting department in the future.' - After the above incident, Foreman Ahrens discussed Robb's case, and the above incidents, with Production Superintendent Matusak. The latter directed that a check be made of Robb's school record under the training program and it was learned on the morning of January 10 that Robb had been marked "poor" be- cause of repeated absences and had been dropped by the school as of December 31, 1946. Matusak then told Ahrens to discharge Robb. Ahrens spoke to Robb a little later in the day and told him that as he was dissatisfied with his work, respondent had decided to discharge him. His termination notice, placed in re- spondent's files, reads "Threatened foreman, belligerent and unsafe." A consideration of the foregoing convinces the undersigned that Robb was discharged for reasons other than those set forth in the complaint, namely, his emotional instability, his lack of respect towards management and complaints coupled with his unsatisfactory record at school, and finally the Sosnowski inci- dent. It is accordingly found that the allegations of the complaint with respect to Robb have not been sustained. Charles Pletka entered respondent's employ on September 14, 1942, as a tool and diemaker in Department A-3. His work was never complained of and he received a number of individual wage increases. He joined the Union and par- ticipated in the union campaign by passing out union literature, Kilroy stickers," and application cards. Two or three days before his discharge on January 14, 1947, he pasted two Kilroy stickers on his lunch box which he kept on top of his work bench in full vision of passers-by and Foreman Ahrens and Assistant Fore- man Struzina both noticed these stickers on his box.2s On January 14, Pletka, while at work, walked over to a spray to wash his glasses which had become dirty. He passed a push truck 27 and slapped a corner post with his hand, thereby affixing a Kilroy sticker to the post. He was observed and accused of so doing by Struzina, who was standing in the vicinity. Pletka denied that he had done this, but- Struzina immediately summoned Ahrens who removed the sticker from the truck and told Pletka to "pack up his tools" and that he was "through as far as the company is concerned." No reason for the 24 The credited testimony of Sosnowski which is supported by that of Ernest Coglianese who was present. According to Robb, he merely told Sosnowski that the steel was cut to the wrong size and Sosnowski then replied that if Robb did not get out he would throw him out. In the opinion of the undersigned, Sosnowski's version is the more likely in view of Robb's emotional nature. In fact, the instant hearing was disturbed by an outburst of foul language from Robb when Coglianese was testifying. 25 This is a paper sticker approximately 3 5" by 3" in size which states, KILROY WAS HERE AND Joined UAW-CIO 28 The testimony of Pletka, Struzina, and Ahrens which is in substantial agreement. 24 This was a small truck of rectangular shape with posts rising vertically in each corner and which was pushed by hand. 809095-49-vol. 79-17 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge was assigned to Pletka at the time 28 Respondent's records were marked as a reason for the discharge, "defacing company property and union activity on company time " The unemployment compensation form sent to the Illinois Labor Department indicates, however, that he was discharged for "misconduct in connection with work" and by way of explanation merely states "Defaced company property." '9 It is respondent's contention, in its brief to the Trial Examiner, that respond- ent was justified in discharging Pletka inasmuch as lie had engaged in union activity on company time in violation of a long established company rule of which the employees had knowledge, in circumstances where the offending employee had received a warning for a similar infraction. With respect to the contention that respondent had a long-established rule forbidding union activity on company time, the record discloses that in 1940, respondent posted a notice on its plant bulletin boards which stated in part: ENGAGING IN UNION ACTIVITIES ON COMPANY TIME OR PROPERTY IS CONTRARY TO A WELL-ESTABLISHED COMPANY POLICY AND WILL CAUSE VIOLATORS TO BE DISCIPLINED. Not only was this notice in contravention of established Board policy, insofar; as it restricted union activities on company property on non-working time,30 but it was taken down on or about January 1, 1944 Furthermore, it was never re- placed, and since that date respondent formulated no policy with respect to this subject which was expressed to its entire body of employees in writing or even orally. It is thus clear that respondent's contention is in this respect not sup- ported by the record. _ With respect to the contention that Pletka received a prior warning for the same type of infraction, the record discloses that Pletka and three employees, Joseph Macchione," Edward Moravec, and Martin Martier were spoken to in- dividually on January 6, 1947, by Industrial Relations Director Stone. Accord- ing to Stone, he discovered that these four were the ringleaders of a group which had urged employees of the toolroom to remain at home on Saturday, January 4, in an effort to obtain time and one half for Saturday work as such, and as a result approximately one half of the toolroom employees were absent on that date. Each of the four was called in separately on January 6 and told by Stone, in the presence of Vice-President Clifton and Production Superintendent Matusak, as Moravec, who is still in respondent's employ, testified, "You know as well as we do about certain activities . . going on .in the place and we want them stopped." Moravec asked whether this referred to "staying home Saturday morn- ing" and was told to' "just forget about it " ° All testified that no reference was made to company tilae. According to Stone, Matusak, and Clifton, Stone said, as he testified, "The company knows that you have been engaging in concerted activities on company time and I want you to know this is the final warning If 28 Pletka originally testified that he had not placed the sticker on the truck He later testified that he placed the sticker thereon 29 Ahrens and Struzina were both promoted on the day following Pletka's discharge, January 15, with no prior notice a° Republic Aviation Coi p v N. L R B , 324 U S 793, Matter of Peyton Packing Co , 49 N L R B 828 ' Macchione is still in respondent 's employ and is the husband of Margaret Cecil The testimony of Moravec , supported by that of liacchione and Pletka whose testimony was substantially the same It is found , in view of the entire picture, that . Stone was referring to the organizational activity of the employees VICTOR MANUFACTURING.& GASKET. COMPANY' ; 247 it happens again you are through." According to Stone, this meeting was called because of the absences on Saturday, January 4 Both Moravec and Macchione, still in respondent's employ, favorably impressed the undersigned with their testimony And if the speech were caused by, the Saturday absences, it does not appear why Stone did not mention this fact to the men involved It is also not readily understandable why Stone, in view of the importance of the occasion as reflected in its handling by respondent's officials, did not retain the paper hearing the remarks suggested and written out by re- spondent's attorney instead of memorizing them The undersigned credits Mora- vec's version of what transpired and finds that the men were warned to refrain from engaging in union activities. Furthermore, assuming that the statements were made as Stone testified, it is clear that they were directed to the activity of urging the men to remain absent on January 4 and not with respect to any defacement of company property. With respect to the incident on January 6 which precipitated the discharge of Pletka, Ahrens testified that he had been instructed by Matusak and Clifton to discharge anyone defacing company property with stickers. Yet, Industrial Re- lations Manager Stone who conducted the meeting of January 6 in which four employees were warned concerning their conduct claimed that insofar as he knew no one in management ever issued an instruction forbidding the putting up of union stickers It is difficult to believe that such a regulation, if handed down, would have been promulgated without the knowledge or even assistance of Stone. The record further indicates that minor interferences with production during working time, unrelated to union or concerted activities, were tolerated by re- spondent. Thus, for years collections for flowers and gifts in the event of a funeral or wedding were customarily made (luring working hours. Respondent periodically ran dances and picnics for its employees and the timekeeper would distribute the tickets during working time Pools based on figures on pay checks were set up during working time and foremen participated therein. There is also a company bowling league and teams aie chosen and entry fees collected, with foremen participating, during working hours " As noted above, Ahrens was aware of Pletka's interest in the Union, leaving noticed the stickers on his lunch box several days earlier And although the sticker was immediately removed, with no damage to the truck, and no actual defacement of company property, Ahrens treated the incident, relatively minor as it was, as a most serious event. The acceptance by respondent of other activi- ties by their employees during working time, of a non-union nature, some of which were participated in by foremen, stands out in conspicuous contrast. As respondent had no prohibition against conversations of a brief and casual nature during working time, it becomes apparent that its objections to the sticker on the truck were not based upon a desire of policing its property and preventing defacement thereof, but rather because it related to union or concerted activities. This disparity of attitude is the more apparent when viewed against Pletka's long and outstanding record and the extreme penalty of abrupt discharge without a warning.' This impels the conclusion that' absent the fact that the sticker 33 According to Stone, respondent's attorney wrote out in longhand the words lie was to use and Stone memorized the words and then returned the paper to the attorney prior to s the interviews . . 34 The uncontroverted testimony of Macchione which the undersigned credits 35 According to,Ahrens, he discharged but one other employee and this took place several years prior to Pletka's discharge Employment Manager Young testified that lie knew of no employees who had been discharged for defacing company property 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD related to union activities, Pletka would not have been discharged by respondent for defacing company property. Upon the basis of the foregoing and upon the entire record, the undersigned finds and concludes that respondent discharged Pletka on January 14, 1947, because of his union or concerted activities, thereby discriminating with regard to his hire and tenure of employment and discouraging membership in the Union. It is further found that by warning its employees to cease their concerted and union activities, 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.S6 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of respondent set forth in Section III, above, occurring in con- nection with the operations of respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It has been found that respondent has discriminated in regard to the hire and tenure of employment of Nick Conforti and Charles Pletka. It will therefore be recommended that respondent offer each of them immediate and full reinstate- ment to his former or substantially equivalent position ,37 without prejudice to his seniority or other rights and privileges, and make each of them whole for any loss of pay he may have suffered by reason of such discrimination , by payment to each of them of a sum of money equal to that which he would have earned as wages from the date of such discrimination to the date of offer of reinstatement, less his net earnings 38 during such period. Inasmuch as a 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 to self-organization ," the undersigned is of the opinion that there is real danger that the commission of unfair labor prac- tices generally is to be anticipated from respondent's unlawful conduct in the past. It will therefore be recommended that 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 49 30 In this connection, as with the case of a written rule, respondent was under obligation to make clear to its employees that it was restricting activities on company property during working time only. 37 In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer in existence, then to a substantially equivalent position " See Matter of The Chase National Bank of the City of New York, an Juan, Puerto Rico, Branch, 65 N. L. R. B. 827. 3a See Matter of Crossett Lumber Company, 8 N L. It. B. 440, 492-8. 39 N. 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). 40 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. VICTOR MANUFACTURING & GASKET COMPANY 249 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. United Automobile Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Nick Conforti and Charles Pletka thereby discouraging membership in the Union, 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, 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 com- merce within the meaning of Section 2 (6) and (7) of the Act. 5. Respondent has not discriminated with regard to the hire and tenure of employment of Anthony F. Comadeca, Lanny Ward, Joseph P. McConville, Mar- garet E. Cecil , and Charles L. Robb. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the, undersigned recommends that respondent , Victor Manufacturing & Gasket Com- pany, Chicago, Illinois, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Discouraging membership in United Automobile Workers of America, C. I. 0, or any other labor organization of its employees , by discriminating with regard to the hire and tenure of employment or any terms or conditions of em- ployment of its employees ; (b) In any manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Automobile Workers of America, C. I. 0., 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 Nick Conforti and Charles Pletka immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges , and make each of them whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of discrimination against him to the date of respondent's offer of reinstatement, less his net earnings during such period ; - (b) Post at its plant at Chicago, Illinois, copies of the , notice attached hereto and marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region , shall, after being signed by respondent's rep- 250 DECISIONS OF.-NATIONAL' LABOR RELATIONS"BOARD resentative, be posted by it immediately upon receipt thereof and maintained 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 respondent to insure that said notices are not altered, defaced, or covered by any other material; (c) -Notify the Regional Director for the Thirteenth Region in writing, within Men (10) days from the receipt of this Intermediate Report, what steps respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days fiom the receipt of this Intermediate Report, respondent notifies said Regional Director in writing that he will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring respondent to take the aforesaid action. It is further recommended that the complaint be dismissed insofar as it alleges that respondent has engaged in unfair labor practices by discriminating with regard to the hire and tenure of employment of Anthony F. Comadeca, Lanny Ward, Joseph P. McConville, Margaret E Cecil, and Charles L. Robb. As provided in Section 203 39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.38 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof; and any party or'counsel for the Board may, within the same period, file an original and four copies of a,brief in support of the Intermediate Report. Immediately upon,the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65. As further provided in said Section 203.39, should any party desire permission to argue orally before the Board, request therefor must be madd 'in'writing to the Board within ten (10)-days from the date of service of.the order transferring the case to the Board. MARTIN S. BENNETT, Trial Exam iaer.' ,,.Dated May, 23, 1947. APPENDIX A No'i ICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National' Labor .Relations Board, and in order to effectuate-the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in-any "manner interfere with, restrain or coerce our em- ployees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist UNITED AUTOTMOBILE WORKERS of -AMERICA, C. I. O`, 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. VICTOR MANUFACTURING & GASKET COMPANY 251 WE WILL OFFER to the employees named below immediate and full reinstate- ment to their former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Nick Conforti Charles Pletka 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. VICTOR MANUFACTURING & GASKET COMPANY, Employer. Dated ------------------------------ By --------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof , and must not be altered , defaced, or covered by any other material. 0