Burnette Castings Co.

In the Matter of BURNETTE CASTINGS COMPANY and UNITED ELEC- TRICAL, RADIO AND MACHINE WORKERS OF AMERICA, AND LOCAL 931, UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, AFFILIATED WITH THE CIO Case No. 7-C-1611.-Decided August 31,1948 Mr. Harry N. Casselman, of Detroit, Mich., for the Board. Fyffe & Clarke, by Mr. John Harrington , of Chicago, Ill., for the Respondent. Mr. Robert S. Feldmnan , of Benton Harbor, Mich., for the Union. DECISION AND ORDER' On June 17, 1947, Trial Examiner Robert N. Denham issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto.' Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the Trial Examiner's rulings made 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 Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions and modifications. 1. We agree with the Trial Examiner that the Respondent discrim- inatorily discharged Lynn Davis, John Dorkowski, Glenn Fuller, Roy Fuller, Gilbert Hitchcock, Peter Kruslak, Lovell Martin, William . ' The power of the Board to issue a Decision and Order in a case such as the instant one, where the charging union has not complied with the filing requirements specified in Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended, was decided by the Board in Matter of Marshall and Bruce Company, 75 N. L. R. B. 90. 2 Section 8 (1) and 8 (3) of the National Labor Relations Act, which the Trial Examiner found was violated, are continued in Section 8 (a) (1) and 8 (a) (3) of the Act, as amended by the Labor Management Relations Act, 1947. 79 N. L. R. B., No. 56. 398 BURNETTE CASTINGS COMPANY 399 Arvin Martin, Bert Morrison, Oris Michels, Clint Skyrme, John Sweeney, and Verl Taylor, in violation of the Act. In so agreeing, however, we do not rely on the testimony of employee Morrison that, 2 or 3 days prior to the discharges, he apprised Superintendent Pugs- ley of the union activity in the plant. Aside from Morrison's testi- mony, there is convincing evidence, as set forth in the Intermediate Report, that at all times material herein, the Respondent had knowl- edge of the employees' intentions and efforts to join the Union. 2. The Respondent contends, and we agree, that it should not be -required to reinstate Verl Taylor. In September 1946, after his dis- charge, Taylor voluntarily enlisted in the United States Army. His testimony at the hearing convinces us that he has no present intention or desire to return to the Respondent's employ. The Respondent fur- ther contends, however, that Taylor and certain other named com- plainants 3 made no reasonable effort to obtain other employment and therefore are not entitled to back pay. The record shows that these complainants registered with the U. S. Employment Service and the Michigan Unemployment Compensation Commission and that the Respondent offered no evidence that any of them rejected an offer of, or gave up, desirable new employment. We therefore find, in accord- ance with the policy enunciated in the Ohio Public Service case,4 that the Respondent's contention is without merit. We shall, accordingly, order reinstatement with back pay for all discriminatorily discharged employees except Taylor. As to the latter, we shall order back pay from the date of his discharge to the date of his enlistment. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Burnette Castings Com- pany, Hartford, Michigan, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Electrical, Radio and Ma- chine Workers of America and Local 931 thereof, affiliated with the 3 Roy- Fuller, Clint Skyrme, Bert 'Morrison. 4 Matter of Ohio Public Service Company, 52 N. L. R. B 725, in which the Board held that registration with the U. S. Employment Service shall be conclusive evidence that a reason- able search for employment has been made, and that "where such registration is shown, the employer will be restricted to proof that the dischargee, without good cause, rejected an offer of, or gave up, desirable new employment ." At the compliance stage, the Respondent is still privileged to prove that the complainants have wilfully incurred a loss of earnings, in which case the Board reserves the right to conduct such further hearings and to make such further findings as the evidence warrants . See Matter of Montgomery Hardwood Floor ing Co., Inc , 72 N. L. R. B. 113. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CIO, or in any other labor organization of its employees , by dis- charging or refusing to reinstate any of its employees or by discrim- inating in any other manner in regard to their hire and tenure of em- ployment , or any term or condition of their employment; (b) In any other manner interfering with, restraining , or coercing its employees in the exercise of the right to self-organization , to form labor organizations , to join or assist United Electrical, Radio and Machine Workers of America and Local 931 thereof , or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer Lynn Davis, John Dorkowski , Glenn Fuller, Roy Fuller, Gilbert Hitchcock, Peter Kruslak, Lovell Martin, William Arvin Martin, Bert Morrison , Oris Michels, Clint Skyrme, and John Sweeney full and immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges ; (b) Make whole the said persons named in the preceding paragraph for any loss of pay they may have suffered by reason of the Respon- dent's discrimination against them , by payment to each of them of a sum of money equivalent to that which he normally would have earned as wages during the period from the date of his discharge , June 8, 1946, to the date of the Respondent's offer of reinstatement, less his net earnings , if any, during said period; (c) Make whole Verl. Taylor for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, by payment to him of a , sum of money equal to the amount which he normally would have earned as wages during the period from June 8, 1946, to the date of his enlistment in the United States Army , less his net earnings during said period; (d) Post in its plant at Hartford , Michigan , copies of the notice attached hereto, marked "Appendix A." 5 Copies of such notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty ( 60) consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure 5 In the event that this Order is enforced by decree of a Circuit Court of Appeals, there shall be inserted in the notice, before the words : "A DECISION AND ORDER" the words • "A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING " BURNETTE CASTINGS COMPANY 401 that the said notices are not altered , defaced, or covered by any other material; (e) Notify the Regional'Director for the Seventh Region in writ- ing, within ten (10 ) days from the date of this Order, what steps the Respondent has taken to comply therewith. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent discriminatorily discharged Alice Brown, threat- ened to discharge employees who failed to vote against the Union in the consent election of September 13, 1946, and engaged in surveillance of, union meetings, be, and it hereby is, dismissed. MEMBER GRAY took 110 part in the consideration of the above De- cision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manlier interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, and LOCAL 931, THEREOF, AFFILIATED WITH THE CIO, Or aily other labor organi- zation, 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. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and snake them whole for any loss of pay suf fered as a result of the discrimination. Lynn Davis Bert Morrison Glenn Fuller Gilbert Hitchcock Roy Fuller Clint Skyrme William Arvin Martin Oris Michels Lovell Martin John Sweeney John Dorkowski Peter Kruslak We will make Verl Taylor whole for any loss of pay suffered as a result of the discrimination from the date of his discharge to the date of his enlistment in the United States Army. All our employees are free to become or remain members of the above-named union or airy, other labor organization. We will not dis- 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD criminate in regard to hire or tenure of employment or any term of condition of employment against any employee because of membership in or activity on behalf of any such labor organization. BURNETTE CASTINGS COMPANY, Employer. By --------------------------------- (Representative) (Title) Dated-------------------- (- NOTE : Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Harry N. Casselnaan, Esq, of Detroit, Mich, for the Board. Robert S. Feldman, Esq., of Benton Harbor, Mich., for the Union. Fyffe & Clarke, by John Harrington, Esq., of Chicago, Ill., for the respondent STATEM NT OF THE CASE Upon an amended charge duly filed by United Electrical, Radio and Machine- Workers of America, CIO, and Local 931, United Electrical, Radio and Machine workers of America, CIO, herein called the Union, the National Labor Relations Board, by its Regional Director for the Seventh Region (Detroit, Michigan), issued its complaint dated February 7, 1947, against Burnette Castings Company at Hartford, Michigan, herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and amended charge together with notices of hearing thereon were duly served upon the Respondent and the Union with respect to unfair labor practices, the coi._,ilaint alleges in substance that on or about June 7, 1946, and June 8, 1946, Respondent discharged 14 named em- ployees and at all times since then has retused to reinstate such employees for the reason that each of them joined and assisted a labor organization and engaged in concerted activities with other employees of Respondent's plant for purposes of collective bargaining and other mutual aid and protection, and that Respondent thereby engaged in unfair labor practices within the meaning of Section S (3) of the Act; and that from on or about January 1, 1945, up to the date of the complaint Respondent, by its officers and agents, interfered with, restrained, and coerced and Is continuing to interfere with, restrain, and coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act in that it has: (a) made statements to its employees indicating Respondent's hostility to the organization of the employees by the Union or any other labor organization, (b) threatened to discharge employees who joined or were active in behalf of the Union or any other labor, organization, (c) threatened to close its plant and dis- charge its employees rather than permit them to affiliate with the Union or any BURNETTE CASTINGS COMPANY 403 other labor organization, (d) threatened to discharge those of its employees who failed to vote against the Union in the consent election conducted by the Board on September 12, 1946, and (e) engaged in surveillance of union activities of its employees and of meetings sponsored by the Union and attended by employees of Respondent, all in contrai,ention of the provisions of Section 8 (1) of the Act. On motion of counsel for Respondent granted by the Trial Examiner, Respond- ent was supplied with a bill of particulars with reference to the allegations above set forth. The answer of Respondent duly filed adnnts all the allegations of the com- plaint pertaining to the corporate stn ucture and nature and extent of the business conducted by Respondent including the allegation that "Respondent was at all times herein mentioned and now is engaged in commerce within the meaning of Section 2 (6) of the Act" and further specially admitting that the Unions named in the complaint are labor organizations within the meaning of Section 2 (5) of the Act. Pursuant to a notice of hearing and of postponement thereof, a hearing was held in Benton Harbor, Michigan, between March 4, 1947, and March 14, 1947, before R. N. Denham, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. All parties appeared and were represented by counsel. Full opportunity was afforded them to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. At the close of the presentation of evidence in chief by the Board, the motion of counsel for the Board to amend the complaint to conform to the proof was granted , applicable only to the correction of names, dates , spellings and other matters not going to the substantial issues drawn by the pleadings. At the conclusion of the hearing oral argument to the Trial Examiner was waived by all parties. Briefs without proposed findings of fact or conclusions of law have been received from counsel for the Board and counsel for Respondent. Upon the basis of the foregoing and upon the entire record, as well as from his observation of the witnesses and examination of such exhibits as were offered and received in evidence, the undersigned makes the following: FINDINGS OF FACT I 1H1', BUSINESS OF RESPONDENT Respondent was originally incorporated under the laws of the State of Michigan in 1932 as Cookware Company of America. In 1942 the corporate name was changed to Burnette Castings Company, at which time it began to engage primarily in the manufacture of war materials. At the conclusion of war activities, Respondent began a reconversion program and resumed its manu- facture of cast aluminum cooking utensils. The entire process of casting, grinding, polishing, assembling, and shipping for distribution to the trade, is carried on at Respondent's sole plant and principal place of business at Hartford, Michigan, a small community located 18 or 20 miles inland from Benton Harbor, Michigan. In the course and conduct of its business and in the operation of its plant, Respondent causes and has continuously caused substantial quantities of aluminum and other raw materials and equipment used in the manufacture of its products to be purchased and transported in interstate commerce from and through States of the United States other than the State of Michigan to its plant in Hartford, Michigan, and causes and has continuously caused large quantities of finished products to be sold and ti ansported in interstate commerce from its. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hartford, Michigan, plant, to, into and through States of the United States other than the State of Michigan. Respondent is engaged in a business which affects com}ngrge; as the term is „defined in the Act. II. THE ORGANIZATIONS INVOLVED United Electrical, Radio and Machine Workers of America, and Local 931, United Electrical, Radio and Machine Workers of America, affiliated with the CIO, are labor organizations admitting to membership employees of Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES The manufacturing operations of Respondent prior to its war production activities, are not reflected in the record beyond the fact that Respondent had engaged in the business of manufacturing and distributing a line of cast aluminum cooking utensils. During the war, its facilities were devoted to the manufacture of aluminum castings for airplane and other mechanical equipment. Both the pre-war and the war activities were carried on under the direct super- vision of Gene Kays, as plant superintendent, who continued to serve in that capacity until May 31, 1946, when after 2 weeks spent in "breaking in" his successor, Max Pugsley, he gave up his employment with Respondent to devote his entire time to his farming interests. Prior to June 1946, Respondent's employees had never engaged in collective bargaining with their employer nor been represented by a labor organization selected for purposes of collecti\ e bargaining. When Respondent reverted to its previous business of manufacturing and selling cook ware, it adopted a plan of distribution through dealers instead of the more or less direct sale methods previously used. The "line" of utensils consisted of several sizes of sauce pans with appropriate covers, several sizes of frying pans, an oval roaster, a round roaster commonly referred to as a Dutch oven, and a grill used for pancakes and similar cooking. Many of the "numbers" were redesigned for the post-war trade and required new molds and equipment. This was obtained gradually and the articles making up the "line" were placed on the market, one at a time, as the equipment to produce them became available. At the time which marked the beginning of the controversy here involved, most of the sauce pans and covers and most of the frying pans were in full production. Some experimental production of the redesigned Dutch oven had taken place A very few of the new type grills had been cast and none of the oval roasters had been completed for distribution. With the resumption of commercial operations, some of the war-required supervisions and controls were dispensed with. Max 'Pugsley, who had been employed in January 1943 with the title of production manager and had served as a sort of expediter. was taken out of the plant and made assistant sales man- ager, leaving the plant supervision wholly in the hands of Kays and his various department foremen. Among the latter were Edward Rollins, an employee of some 18 years' service who, as an expert polisher, had been foreman of the polish- ing department from its inception and was then foreman of the day shift polishing crew ; Clarence Dyer, admittedly not a skilled polisher but who, after several intermittent employments with Respondent, in the course of which lie had a short period of instruction at polishing under Rollins, was employed in July 1945 to become foreman of the newly created night shift polishing crew: and Cecil Stair, foreman of the pei manent mold department BURNETTE CASTINGS COMPANY 405 Pugsley had, prior to his employment by Respondent, acted as plant superin- tendent for 6 years at the plant of Rudy Furnace Company, at Dowagiac, Michi- gan;- He testified that he had long been a student of and regarded himself as something of an expert in plant management. Two weeks before Kays left, Pugsley was designated to succeed him, with instructions to get the plant on a production basis which would permit Respondent to put its full "line" into regular distribution at an early date. He and Kays worked together the last 2 weeks of May 1946, and Pugsley officially took charge on Monday, June 3, although he, apparently exercised some of the authority of the office (luring the last week of May, as well. One of Pugsley's pre-June 3 acts was to designate as chief inspector, with the suggestion that he might also make him his (Pugsley 's) assistant, Lawrence (Bud) Scherer, an employee in the shipping department, who had done some work at shipping, in the stock room, some types of inspection, and other utility jobs in the same area of activity. The polishing department is the plant's largest unit of employment. Its work is the key operation The equipment consists of 16 machines ; some with automatic or semi-automatic attachments, but all made up of rapidly revolving shafts with polishing wheels at each end. The operations on the utensils vary but fall into the same general classifications. On the covers, which appear to be the simpler and more rapid operation, four men constitute a line Two of these men, working at adjacent machines, rough grind the castings as one operation and then, on a finer wheel, dri-fine the article to its first stage of polish. The product of these tvv o lien I hen goes to a "greaser" who, on a wheel that carries a heavy coat of a special grease and very fine abrasive, brings the casting to its semi-finish stage. He then passes it to the buffer who completes the polishing operation. From the buffer, the article goes to those operators who drill holes when required, wash the articles and finally assemble the handles, heat control indicators, and other attachments ready for shipment. The pans are more extensively treated. On these, the inside hard skin is cut away by the spinner The rims are ground down for an inch or two from the top edge. The handles, when a part of the casting, and the handle receptacles, are separately polished, all operations being performed by one or two men, after which the pan goes through the same general process above described, except that some of the work is done with automatic or semi-automatic equipment. The grills, being irregular in shape, are specially handled, sometimes by a single operator and sometimes by several.' The work of the polishing department is done on a balcony about 20 feet wide overlooking the main floor of the plant. , The principal exit from this balcony leads almost directly to the time clock which faces an open space about 35 feet square, partly under the balcony. A side or "employees' " entrance to the plant lets off from this open space. The superintendent's office faces the open space. This space contains a soft drink machine and, at the time in question, several benches. It is apparently here that the men congregated before going to work and on leaving. In May 1946, the day shift polishing crew, under Rollins, consisted of 21 persons, including Rollins, and worked a 9-hour shift It appears to have been made up mostly of the older and more experienced men, and, from the over-all I No effort has been made here to describe the entire polishing process as followed m Respondent's plant Some automatic machinery is used and the polishing of the handles and handle receptacles is usually all done by one uian Only so much of the operation has been here dwelt upon as will lend a reasonably (leaf understanding to the ntatteis m issue 50909:1- 49-vol 79-27 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD view of the record and production figures, to have handled most of the more- difficult-to-produce work.- -The-,night shift crew, under Dyer, consisted of 17 persons, including Dyer, working on an 11-hour shift. The record indicates that this -shift mainly worked on the routine pieces, although both crews handled all articles in the "`line ," at times. , Most of the work of the polishers is at piece rates with a basic hourly rate at which pay is computed if the piece work production does not exceed the basic rate. Also, when utensils are to be re-run through the polishing department because of defects , such re-runs are usually accumulated and then put through, at the hourly rate.' During the morning of May 28, 1946, Pugsley posted a notice that; effective immediately, the piece work rates would be changed as follows : Operation 20. -Spin complete and sun-ray 8" Frying pan-bottom ------------------------------------------------------ 11" Frying pan-bottom ---------------------------------------------------- 234 qt. Sauce pan-bottom ------------------------------------------------- 33 qt Sauce pan-bottom -------------------------------------------------- New rate Old rate 0 05 055 05 .05 0 04 045 .04 04 Operation 29.-Wire brush bottom, rough, grease and buff handles 8" Frying pan-bottoms----------------------------------------------------- 11" Frying pan-bottoms----- ----------------------------------------------- 234 qt Sauce pan-bottoms -------------------------------------------------- 334 qt. Sauce pan-bottoms-------------------------- -------------------- --- 0.04 .04 .04 04 0 03 03 03 03 Operation 32.-Automatic Rough and Dri-fine 8" Frying pan-bottoms------------------------------------------------- 11" Frying pan-bottoms-------------------------------------------------- 23 qt Sauce pan-bottoms ------------------------------------------------ 334 qt Sauce pan-bottoms ------------------------------------------------ 0 0225 .0325 0225 .0275 0 0175 02 .02 .02 Operation 35. -Automatic grease and buff 8" Fiying pan-bottoms-------------- ---------- o --------------------------- 11" Frying pan-bottoms----- ----------------------------------------------- 234 qt Sauce pan-bottoms ------------------------------------------------- 3i4 qt. Sauce pan-bottoms -------------------------------------------------- 0 0175 0275 0175 .0225 0 0175 02 .02 02 8 It is not seriously contested that many of the castings contain numerous "gas" holes which must be polished out, or , if the holes are too deep , discarded to be remelted. Some of these holes will show up at various stages of the polishing , but most generally do not become obvious until they have gone through the buffing , the last operation , to be thrown out on the line inspection In most instances , the holes are "pinged" or punched in by hand and then put through the entire polishing operation on an hourly pay basis. , There is credible testimony , however. that on occasions , the line inspector has taken pieces off the line and handed them back to the polishers to re -run. When this has happened, the polishers have either re-run them without charge when the defect was one of workmanship or have included them in the piece-work count when the defect was in the casting. This latter , however , is very much the exception. BURNETTE CASTINGS COMPANY 407 In the same notice, piece rates were fixed for the first time on the Dutch oven, all production of that item having theretofore been on a small and experimel fal basis, mainly to produce samples. The piece rates on the various covers were not changed and no rates were fixed for either the grills or oval roasters. Following the announcement of these downward revisions of'the going piece- work rates, and the new rates on the Dutch oven, the men on the first shift worked through to the lunch period. They then punched their time cards as was customary, but at the end of the period, the approximately 20 men making up the crew refused to return to work until they had protested to Pugsley. Shortly- after 1 p. in., Pugsley returned from lunch. The next hour and a half or two hours were spent in spirited discussion with him in the area in front of his office. Finally the men demanded to see Ralph G. Mack, Respondent's president,. and at Mack's suggestion, delegated two of their number to go to Mack's office- with Pugsley and present their protests. Leonard Harbin, a piece worker and Verle Taylor, an hourly rate worker were chosen for that purpose. This meeting was an extended one in which Mack explained what he described as the state of the competitive market ; the necessity for reducing costs if they were to find a market ; the fact that they had surveyed the old rates and had found them, out of line with other comparable rates; and that the new rates would have- to stand but that if the men would try them out, especially the newly established rates on the Dutch oven, for 30 days, they would make a study at the end of that time and readjust them if it seemed necessary. With this, the two representa- tives returned to the group and reported what had happened. The discussions, with Pugsley continued but finally concluded at about 4 p. in. with an agreement that the revieed rates could stand but the Dutch oven rates would he tried out for 30 (lays and then readjusted if the trial indicated a readjustment. The men were not especially pleased, but when the arrangement had been made, Pugsley told them to go home and think it over, since the plant would be closed on May 30 and for the remainder of the week, and to return to work the following Monday on the new basis. The men did this, and straggled out of the plant. Before many had left, however, the night crew began to report. As may be expected, there was considerable discussion between the two groups with some indication in the record that feelings ran high at times. In the main, the pieces. handled by the night crew were such that the cuts in rates did not affect them as seriously as the day crew, but there was still dissatisfaction even among them, and before the night crew began work, they, too, had a discussion with 1'ugsley lasting between 1 and 2 hours, after which they returned to work. The- night crew continued to work the rest of the week.' On Friday, May 31, some of the day-shift men went to the plant for their' pay checks' There they were interviewed one at a time by Pugsley as to' 3 Concerning this, Pugsley's explanation of his reason for sending the day crew home on Tuesday, May 28 , with instructions to return the following Monday , takes a place in the over-all picture of numerous inconsistencies He testified : Q. Yes, when they left . this is the last week in May and Thursday being a' holiday, I had previously talked with Mr flack and we definitely decided not to run the shop after Wednesday night for the rest of the week . . . so this happened on Tuesday afternoon , so I said , "Well , we're going to close the shop down for the balance of the tail-end of the week anyway" so I said, "Why don't you fellows, as long as these s, only one day left , go home and talk this thing over and make up your minds just what: you'd like to do " The production records show that the night crew worked the night of May 28-29 , that' they were idle the night of May 29-30 , and that they worked as usual the night of May 30-31. ' The pay week ends at the close of business on Wednesday. Friday is regular pay day; and covers earnings only through the preceding Wednesday 408' DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether they intended to return Ito work on the new schedule1of rates. All who were talked to agreed to do so. On Monday , June 3, only a small part of the day -shift polishers . reported for work' and apparently the plant did not operate . that day. ' At least; the produc- tion records do not reflect any production for June 3. On Tuesday , June 4, the entire day-shift polishing crew reported. Pugsley, who urgently wanted production of Dutch ovens , immediately put that article on the polishing line and almost immediately the spinners and the handle polish- ers began to complain. All pans have a hard skin on, the casting, apparently es- pecially on the inside, where the spinner's work is done. It was the complaint of the spinner that the castings he was working on were too hard to work and that his tools had to be changed much more frequently: than with other pans. The handle polishers complained that because of he design of the pot and es- pecially the underside of the handles , they could not get to the bottoms of the handles with their polishing wheels. As the clay proceeded. Pugsley inquired of Rollins as to the progress of the work and was told of the complaints . He went to the spinner and heard his complaint about the hardness of the castings. When the spinner told him he had tried four or five and found them all too hard, Pugsley criticized him for not giving the work a "fair trial." Meantime, he had several of the castings tested on a machine that was on hand for such purposes and found the castings normal.' Pugsley next went to the handle polishers . The Dutch oven is a round high pan, about 11 inches in diameter, witp flat handles on opposite sides, protruding from the upper riln. To afford a grip, these haudles are cast with a heavy ridge along the outer edge on the under side The handle polishers complained that the wheels would not go behind this ridge or -lip , After some discussion, Pugsley suggested grinding down a part of the ridge and, following his own suggestion, took several to the grinding department where lie had a substantial part of the ridge cut away. On returning the castings to the polishers, the latter expressed the thought that the change would help, but were still not satisfied. Tuesday's operations in the polishing department were ragged and the pro- duction of this new article was relatively small The polishers were still dis- contented over the pay cut and the Dutch oven rates, and there was considerable time lost in discussions and getting ieadjuted, during which Ray Fuller, one of the polishers, put forth the suggestion that they take steps to bring a union into the plant . He questioned a number of the men and found them sympathetic to the idea. On Wednesday , the production of Dutch ou ens, as rellicted by the production records, increased 50 percent, but the over-all production for the plant, in both shifts, was between 20 and 25 percent, in numbers of pieces produced, under the May average.? 6 There is credible testimony that on Friday, Pugsley had advised those whom he inter- viewed not to return to work until Tuesday because some necessary repair work was being done. The incident is not material, however, since no issue was made of it. 6 This apparently was a breaking test and did not go to the surface hardness referred to 7 Respondent kept no records of production by shifts. At times, one shift would do re-iuns on pieces originating on the opposite shift There is some testimony that during that period, the night shift finished sonic of the Dutch ovens worked on by the day shift and that the day shift in turn finished a large number of frying pans originating on the night shift In view of the absence of persuasive testimony to the contrary, it is assumed that the relative production between the shifts remained substantially the same but with declines of some degree charged against the day shift who had the major readjustments to make BURNETTE CASTINGS COMPANY 409 As Fuller canvassed the day shift crew, he found an active interest in the Union, which practically all the members of the crew supported. With thisi.as a background, on Wednesday, Fuller announced that the next day he would go to -Benton Harbor -and get the necessary cards for them to sign. While the talk of a union was confined almost entirely to the day-shift polishing crew, it soon became" known in' mituy quarters outside that gr'bup. Charles Ritter, whose employment is officially that of guard, but who serves management in many incidental ways, distributing pay checks, carrying messages, doing errands to and from the neighboring communities and who also is an active deputy sheriff in the county,' testified : Q. . . . "Just before they got fired, and according to the testimony they had just begun organizing You mean at that time you heard it all over the shop?" A. Well, I don't know just exactly what time that was, as I stated before, but I heard them talking union, union. union. here and there amongst them- selves. Clarence Dyer testified that, during the week of June 3 that culminated in the discharges, he was told by at least one of the men in his night-shift crew, that the day shift were talking about organizing, and that one of them was going to Benton Harbor to get a supply of union cards. Dyer also testified that dur- ing that week, Pugsley visited the plant almost every night ; that they dis- cussed various subjects dealing with the operations, the difficulty Pugsley was having with the (lay shift over the piece-rate cuts, and the probable effectiveness of a consolidation of the shifts ; that on the night of June 7, Pugsley told him he was discharging some of the day-crew men: and, on that night also told Dyer that lie thought the night crew would go on as the day crew, under Dyer as foreman, on the following Monday, but would not know for certain until the next day, Saturday, when he would get definite word to him. Dyer denied that he made any mention to Pugsley of the union activities in the day shift. For the reasons hereinafter set out. I cannot credit this. Pugsley was directly advised. 2 or 3 days prior to the June 7 discharges, by Bert Morrison, that the day-shift polishers were preparing to organize. Mor- rison, a brother-in-law of Burnette, was employed as a sort of handy man on the polishing deck. His main job was to keep the polishers supplied with fresh wheels. Rollins, the foreman. was his son-in-law Morrison testified that he was aware of an anti-union attitude of Burnette; that he did not want to see Rol- lins injured by conduce of his crew that would meet with the disapproval of man- agement, and that he approached Pugsley in the plant and told hint of the move- ment. He testified. 8 Although Ritter denied having ever talked with anyone in management about the Union and similarly denied having ever mentioned the Union to any of the employees, on the ground that he was wholly without any interest in it, his testimony took him too completely out of character to entitle it to weight along the lines it was intended to support Ritter, as referred to throughout the record, appears as something of a "busybody" and completely a "management" man. His duties covered a wide range, but always as a general "factotum" for management In his effort to protect the interests of management, he over-colored his disavowal of any interest whatsoever in the Union and his denials on other scores. Ritter's chores apparently were minor ones, but always as management's man Experience has taught that such persons are a rich source from which foremen and superintendents draw much information as to what is going on in the ranks of the employees Ritter and his place in the picture at the plant appear to be ty pical of this 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Well, I called him off and I told him, I said, "It looks like the boys over "there was going to organizd the whole shop union, that's what is going (on) there; all you can hear, and I thought I'd speak to you about it." So I don't remember just the answer, but he give me some answer and went right 'on like he was going in the front, and the best I remember, he said, "We'll stop it," or "We'll take care of it," something like that. Concerning this, Pugsley testified : Yes, Bert stopped me out there one day because I was very much surprised. I don't think I'd talked to Bert for two months. For some reason he never said much to me, and he met me out in the sand foundry and said he didn't like the looks of things, that things weren't going good around the plant. Well, coming from Bert, I didn't take it too seriously, and I said, "The man- agement will take care of things around the plant." Pugsley testified that during that week, he was frequently on the polishing deck. Scherer, his chief inspector and potential assistant, testified that he was more or less constantly on the polishing deck and often talked to the men, frequently about the complaints they were making It is to be expected that Scherer could not have been so intimately associating with the group and not have acquired at least as much information as Ritter or as Dyer's informant ; and it is likewise to be expected that Scherer, who boasted of his loyalty toward management, would keep Pugsley advised, especially since both claimed to be greatly disturbed over the let-down in production. Despite Pugsley's denial of knowledge of this activity, it is found that he was directly advised of it on Wednesday. his second day in full command of opera- tions and that his knowledge kept full pace with the developments as they occurred. On May 28, he participated with Mack in an agreement with the men to try out the Dutch oven rates for 30 days and then resurvey them. On the next working day, Tuesday, June 4, he chided Clint Skyrme, the spinner, for passing judgment on the hardness of the Dutch oven castings after working on only four or five of them. On the same occasion, when Lovell Martin and William A. Martin complained about the handles on the Dutch oven, he urged them to try them out for 2 or 3 weeks and then see how they worked. He even made some changes by grinding down the objectionable ridge on the bottom of the handle and otherwise sought to encourage the men in their work on this new utensils But, on Wednesday afternoon, following his talk with Morrison, he was urging Mack to discharge most of the day crew, at which time Mack reminded him of the 30 days' trial agreement ; and on Thursday, again urged their discharge so vehemently that Mack acceded to it. The discharges When the May 28 episode took place and the day-shift crew was sent home for the remainder of the week under orders to return the following Monday at the new reduced rates of pay, their return was accomplished with no small feeling of resentment The immediate introduction of the Dutch oven into production on the controversial piece-rate basis, did nothing to relieve the situation. The combination of the resentment of the men, their serious consideration for the first time, of a union for purposes of protection, and the problems incident to 9It is to be noted that a short time after June 10, Respondent abandoned its efforts to polish the bottoms of these handles and confined the finish of these pieces to wire brushing them. This resulted in a material saving of time in the polishing of this article. BURNETTE CASTINGS COMPANY- 411 'development of a workable technique for successfully, handling the Dutch oven on the piece-work basis, clearly made either' immediate smooth roperation or satisfactory production impossible. As has been heretofore stated, on Tuesday Pugsley apparently showed some desire to assist the men and to encourage them in their problems with the Dutch oven. At that time, the day shift consisted of : Edward Rollins, foreman Louis Carlock, rough bore-this work was an operation preliminary to spinning and performed in a different part of the plant from the regular polishing deck. Horatio Cheney, packer (d) John Dorkowski, polisher - , (d) Glenn Fuller, polisher (d) Roy Fuller, polisher (d) Leonard Harbin, polisher (d) Gilbert Hitchcock, polisher (d) Peter Kruslak, polisher (d) Lovell Martin, polisher (d) Wm. Arvin Martin, polisher (d) Ovis Michaels, polisher Thomas Miller, color buff-quit June 10, 1946 Harry Rouse, polisher (d) Clint Skyrme, spinner Wm. Sweeney, polisher (d) Verle Taylor, handy man Howard Timmons, polisher * (d) Raymond Vliek, polisher (d) Bert Morrison, hand man.'° On Tuesday, June 4, the cover line then working on the clay- shift consisted of Hitchcock and Dorkowski at the rough grind and dri-fine, Kruslak at the grease wheel and Vliek as buffer. Since this work moves fast, it is customary for the men at the grease wheel and the buffer to keep no record of their work, but at the end of each day to take the totals reported by the two men on the rough grind and dri-fine, and report that for their piece-work credit. On June 4, Hitch- cock and Dorkowski reported 300 covers each and, in accordance with the custom, Kruslak and Vliek reported their work as 600 each. This was Pugsley's first full production day of responsibility and Scherer's first day of authority as chief inspector. It is the credible testimony of Hitchcock, Dorkowski, and Kruslak, that on that day, the quality of the castings handled was very low, with many more than average gas holes ; that both production and quality were being pressed by Line Inspector Guy Collins ; " and that as Collins would find a defect in a cover on the line, instead of setting it aside to be re-run on hourly rates when a number had accumulated, he would take it back to the rough grind and dri- fine men and direct them to re-run it. These men, Hitchcock and Dorkowski, soon began to complain at this and told Collins they would put them through the regular operation and count them on their piece-work report, but would 11 Those whose names are preceded by (d) were later the subjects of discharge. Vliek was discharged with the others on Saturady , June 8 and rehired Tuesday, June 11. 13 Collins did not appear as a witness . It was explained that he habitually spends his winters in Texas and only returns to Michigan in the summers. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not run them if they did not get paid for them. Collins replied that he intended to run them as new pieces, and' that his whole interest was in getting "No 1" covers through. They did as directed by Collins and, because the percentage of rejects was abnormally high, wound up the day with piece-work charges for 600 covers but with a much smaller number of covers at hand for physical checking because of the double run many of them had received. On the morning of June 5, Scherer made an inspection of the covers in process or finished the preceding day and on checking against the work cards of the cover-line crew, could find only about half as many covers as had been reported. He immediately reported his discovery to Pugsley who, Vii Scherer's statement, struck out the figures on the work cards that had been entered by Dorkowski, Hitchcock, Kruslak, and Vliek. and changed them to reflect half the production these men had reported. He did not then or at any other time mention the matter to any of the men but authorized Scherer to notify them of the cut. On leaving Pugsley, Scherer went to the polishing deck to accuse these four men of cheating on their piece-work count and to advise them of Pugsley's change in their credit for the previous day's work. At that time, no covers were being run by this crew and the men had scattered to jobs at other places on the deck. Scherer had them assembled and made his accusation and announce- ment. They protested that their figures were correct and attempted to explain to Scherer what had happened. Obviously they could not account for 600 pieces, but Scherer refused to accept explanations and stood on his physical count. Rollins was called in and protested that these men had worked under him for a long time and, in his opinion, would not wilfully cheat, notwithstanding the 600 pieces could not be produced. His comments at the time, as quoted by Kruslak, were : Now, you boys, you worked long enough with me that you wouldn't cheat, . . . I know you didn't . . . Bud (Sherer) here just makes a lot of noise and wants to impress his authority. However, in the pay that was made to them the following Friday, June 7, their production for June 4 was paid for only on the figures- as revised by-'Pugsley, Dorkowski and Hitchcock being cut 150 pieces each, and Kruslak and Vliek being cut 300 pieces each'2 On the afternoon of Wednesday, June 5, according to the testimony of both Mack and Pugsley, the latter told Mack about the "cheating" episode and com- plained that in his opinion the day-crew polishers were not trying to do a job and he thought they should be discharged. At that time, according to their testimony, Mack reminded Pugsley of the agreed 30 days' trial period and urged him to try to get the confidence of the men. That evening, Pugsley spent some time with Dyer at the plant discussing, among other things, the difficulty he was having with the clay-shift crew. In this connection too, it will be recalled that Dyer by that time had been advised that there was a union movement in the day crew and that one of the men was planning to go into Benton Harbor to get union cards- The record contains much credible evidence of Dyer's attitude toward the Union and, his readiness to express it. Because of this and the topics admittedly under 12 On Monday, June 10, following their discharges, Dorkowski and Hitchcock separately called on Pugsley and demanded pay for the pieces that had been deducted Dorkowski was given a check for $3 62 which., at the piece-work rate, represented 104 pieces. Hitchcock was given a check for $3.33 which represented 96 pieces . No satisfactory explanation was made as to how these figures were determined . Pugsley's testimony was that he took their respective words for the amount and paid them accordingly , without discussion BURNETTE CASTINGS COMPANY • 413 discussion, it is a fair presumption that Dyer conveyed his information to Pugsley on this occasion, notwithstanding both his and Pugsley's testimony that union activities were never mentioned in their conversation 33 Although there is no evidence of any incident in the production line the next day, Thursday, June 6. that was provocative, beyond the fact that a new crew was being broken in on polishing grills, which never before had been in substantial production, and made very small progress from the standpoint of finished pieces. Pugsley, according to his testimony, went to Mack that afternoon, and demanded that he be allowed to make up a list of men for discharge from, the day crew. He testified that he told Mack, "Ralph, as far as I am concerned, these fellows aren't producing for me, and its gotten around to the point where either I'm going to run the shop or they're going to run it, and what I'd like to do is to give you a list of employees who I'd like to have discharged because they're not producing for me and I can't tolerate it any longer." He further quoted Mack as saying, "All right, Max, if you feel that way about it, make up your list and give it to me tomorrow as soon as possible." 33 The following testimony of Dorkowski, credited and accepted, is indicative of Dyer's attitude Q. With whom did you drive to and from work when you worked on the night shift' A. Clarence Dyer worked with me. Q Who? A. Clarence Dyer. Q. He was your foreman? A. And Allie Fuller always rode with me back and forth. Q. You drove the car, it was your car? A. Yes, it was my car. Q. You picked these people up? A. Yes. Q. And at the end of the evening you took them home? A. I take them to work and bring them home. Q. Did you ever have any discussion on the subject of labor organizations on those occasions? A. Yes, I spoke there in the car to Allie Fuller, you know. We had to have a union up there Q. About when would this be? A Oh, that was about, something around, about the end of May or something like that. Q. May of what year A Oh, the year 1946. Q. Were you still on the night shift then? A: Yes, I was still on the night shift then, and I told them about it. I said, "I belonged to the Union when I worked at Round Oak." Q. You told Fuller this? A. Yes, and I said, "We should have one here." I said, "I' m an old-time Union member, belonged to the Union when I was about fourteen years old," and I said, "I'd like to stick to it," and Clarence Dyer, he was sitting next to me in the front seat, says, "You better not say that " I said, "What's the matter?" He said, "You know Mr. Burnette wouldn't like that because if we get a Union there he'll close the plant up. We'd all be out of a job." Q. Was there anything else said? A. No, that was all. Q Now, did this just occur on one occasion? A. That's all we had to say that time. Q That was just one time that that happened9 A. That was all Q Did you discuss the Union with him any mote? A. No, I didn't bother with it any more then. In addition, the record contains many credited allusions to similar statements made by Dyer subsequent to June 7, 1947, that will be later referred to herein 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pugsley further testified that he set about Thursday night to compile the list; that his first selection were the four men in the "cheating" incident-Dorkowski, Hitchcock, Kruslak, and Vliek ; that his next selection was Oris Michels, because he (Pugsley) thought he had detected some discrepancy in his piece-work card of June 4, reached the conclusion that he was a cheater, and so listed him for discharge, without asking him for an explanation or in any manner letting him know that he was under suspicion ; " that he next selected the crew who had been working on the Dutch oven, which included Skyrme, Roy Fuller, Glenn Fuller, William Arvin Martin and Lovell Martin and in addition decided, while he was about it, to discharge John Sweeney, an employee of long standing who, at the time, was engaged at reaming out and grinding slots in handle receptacles, and stamping Respondent's name and trade-mark on the castings, because "there wasn't enough production going through to warrant carrying one man for those small operations. I had enough men around there, where I could feed a few men in there a few hours a day to get that done." 13 Bert Morrison, heretofore referred to, was selected, according to Pugsley because "Bert at that time was picking up wheels and doing odds and ends around there, and every time I walked out on the polishing deck, Bert was" just wandering around listlessly. In fact, I had to stop a few times he was moving so slowly, to get around him, I had to slow up to get around him and nudge him to get by him, and I could see no necessity of keeping Bert Morrison on the top deck." Pugsley gave no reason for listing Verle Taylor for discharge. This man, an unexperienced polisher, and strictly an hourly paid employee, was listed as a "utility man" who substituted for Morrison when he was absent, hammered out gas holes in rejected castings, did some miscellaneous minor fill-in polishing jobs and later ran the "re-runs" on an automatic machine specially set up for that purpose. During the latter part of the week beginning June 3, Taylor was one of the green men being broken in to work on the grills. The only outstanding incident concerning Taylor at any time during the period here under consideration, was that he was one of the men selected by the polishing crew to talk to Mack on the occasion of the May 28 protest and that, on that occasion, he asked for an increase in the general hourly rate. If Taylor's failure to produce on the grill job that was relatively new to all the polishers and admittedly a difficult piece to polish, was the reason for his inclusion on the list for discharge, it does not appear in the record. In addition to the foregoing, Pugsley also listed Alice Brown and two other women, according to his testimony, because he was curtailing their work. Brown operated a drill press which is in the finishing department. The work of the other two women is not described. Both Mack and Pugsley testified that during the morning of June 7, Pugsley gave the list to Mack ; that Mack made no comment on the subject of the dis- charges and shortly thereafter signed and transmitted the list to the time and pay-roll clerk." Although Pugsley's action on Thursday contemplated the discharge of prac- tically the entire day-shift polishing crew, he said nothing to Foreman Rollins 14 Michels was engaged on covers. His production had always been satisfactory. He was not embroiled in the Dutch oven controversy nor in the Dorkowski-Hitchcock affair. In short, Pugsley admitted there was no reason for his discharge except the suspicion above noted. The other members of Michels' crew, Rouse and Timmons, were not disturbed. 15 Sweeney was employed in the grinding department, away from the polishing deck and under an entirely different foreman. 16 The testimony of Mack and Pugsley concerning their conversations on Wednesday and Thursday and the preparation and disposition of the list on Friday are not credited. This testimony is discussed hereinafter under the title "Analysis and Concluding Findings." BURNETTE CASTINGS COMPANY 415 about his plan, nor was anything said nor any rumor extant in the plant on Friday, June 7, that there were to be any dischhrges: IRV At the close of the day shift's work on Friday, the 7th, the employees assembled for their regular pay checks. These were distributed to them in the customary manner by Charles Ritter, with no comment or intimation to any of those above listed, to indicate that their services were being terminated, except in the case of Alice Brown, who, after being paid, was taken to one side by Ritter and told that she and two other women were being laid off temporarily, but could expect to be back in 2 or 3 weeks. Although one of the women has returned, Brown never was recalled. The next morning, Saturday, June 8," the pay-roll clerks computed the final pay covering Thursday and Friday, June 6 and 7, for Dorkowski, Hitchcock, Kruslak, Vliek, Clint Skyrme, Roy Fuller, Glenn Fuller, William Arvin Martin, Lovell Martin, Oris Michels, Leonard Harbin, John Sweeney, Bert Morrison, Verle Taylor and Lynn Davis," placed them in addressed envelopes with an unsigned memo reading as follows: June 8, 1946 Due to lack of production and materials, it is necessary for us to reduce our working force. Burnette Castings Co. and delivered them to Pugsley who was at hand waiting for them. Pugsley then called in Charlie Ritter, explained that these men were being discharged and, handing the envelopes to him , asked him to deliver them, together with a note to Dyer instructing him to have his crew report Monday morning for slay-shift duty under him as foreman" Ritter made some of his deliveries before reaching Dyer's home. From that point, Dyer went with him to point out the residences of the men. By the middle of the day, all the checks and notices had been delivered, but Rollins still had received no advice about the action that was being taken. On Tuesday, June 11, Vliek was reinstated to his job by Pugsley, on the representation of some undisclosed employees who, according to Pugsley, told him that Vliek had been a victim of circumstances and was a new employee and, in taking his count from that of the other men, had not intended to cheat?° Vliek thereafter remained In the job for 2 weeks and quit. On the other side of the picture, and paralleling, in the time sequence, the incidents claimed by Pugsley and Mack to have happened, the record discloses : On Tuesday, June 4, when the men returned to work, Roy Fuller started the thought among the men of joining a union. The men were complaining, unhappy, and finding difficulty in developing a procedure for handling the Dutch oven 11 The plant did not operate on Saturdays. 11 Lynn Davis was an experienced polisher formerly employed by Respondent. Early in the week beginning June 3, he had arranged with Pugsley to go back into the polishing department as a utility polisher at a basic rate of $1.00 per hour as against the going rate of 80 cents per hour. He was deterred from immediately working by a sore hand, but did report the morning of June 7. During that day, he worked chiefly at polishing grills. Pugsley testified that he decided to add Davis ' name to the list of dischargees, Saturday morning, June 8, when he got to the plant, because he had noticed Davis away from his machine much of the time on Friday and did not like his attitude. '° It is to be noted that Ritter was given no check for Alice Brown for her final 2 days. She went back to the plant the next week and got it 20 Vliek had, in fact, been working at the plant for a full month when the June 8 dis- charges took place. In taking his count from the rough grinders, he was following recognized custom in the plant and was in no different position than Rruslak, who was not recalled. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that would permit them to earn better than the hourly rate, at the newly estab- lished piece prices. During this day, Pugsley, while sensing the discontent, made an effort to help them overcome the difficulties and urged them to try it for a few weeks until they could become accustomed to it. On Wednesday, the incident occurred in which Scherer discovered what he thought to be a 100-percent over-charge on piece work by Dorkowski, Hitchcock, Kruslak and Vliek. Without investigation, without questioning the men, and without conferring with Rollins, their foreman, Pugsley arbitrarily cut the amount of work to be credited to one-half of that reported. (See footnote 12 supra, relative to Pugsley's later payment to two of these men for this deduction.) On this same day Morrison told Pugsley about the union activity in the day- shift polishing crew and was told that managemeiit would take care of it. By that time, the subject of the Union bad become common conversation on the day shift, according to Ritter. , In this atmosphere, late that afternoon, notwith- standing his agreement with the polishers to try out the new rates for 30 days and his urging of the men the previous day, to give it a fair trial for a few weeks, Pugsley went to Mack with the recommendation that the men on the day shift be discharged because "they were not trying to produce." While there is little doubt that Ppgsley discussed the men with Mack on that day, I am unable to accept his testimony that his suggestion of discharge was ,bpttomed on his convic- tion that this group of old-time employees, many of whom he admits were."key" men, were deliberately refusing to try to turn out the work. One normally does not put men on a new job at an untried pay rate, with an agreement that they take 30 days to accustom themselves to the work and to give it a production trial, and then, before they have been at it less than 2 days, discharge them for "not trying," and especially without at least warning them. When such a thing occurs it is almost axiomatic that if one looks below the surface, he will find another and more logical reason prompting that type of otherwise unreasonable and normally inexcusable action. The union activity within the day crew and Morrison's warning of its existence is the only other, thing appearing in this record which, if there existed an anti-union animus, might be expected to prompt such action. However, Pugsley's argument apparently failed to persuade Mack, for Mack, refusing his request, cautioned him to "gain the confidence of the men" and not to overlook the fact that- they had' agreed upon• a 30 days' trial period. On Wednesday night, Pugsley and Dyer discussed the problems of the day crew and the- possibility of consolidating the polishing work in- ii single shift. At that time Dyer was fully advised that the day crew was seriously moving toward organization and that one of their number expected to go to Benton Harbor the next day to get a supply of union cards. It has been found that this information reasonably may be expected to have been conveyed to Pugsley. On Thursday, nothing occurred on the polishing line that was outstanding except that work on the, grills was again started, with a green crew, and only a very few were finished." Pugsley's testimony concerning operations on this day was general in nature and to the effect that he was just convinced the men were not trying. But, notwithstanding his rebuff the day before by Mack, it is his testimony that late that afternoon, he repeated his demand for the discharge of the day crew because they were not trying to produce, and completed it with a 21 Pugsley's only definite criticism of the Thursday work was directed to the grills when the men working on them finished 25. Production records show grills produced in 4 days in May, the quantities being 38, 43, 17, and 126 , respectively . In June, the grills produced were : June 6-25 ; June 7-69 ; June 10-54 and thereafter at a rate in excess of 100 per day. Note, however, that June 7 was the last day for the day crew here involved. BURNETTE CASTINGS COMPANY 417 veiled alternative that either they would have to go or he would step aside as superintendent. Notwithstanding that Pugsley testified that none of the men had previously worked on the Dutch oven on a production basis , that they were not familiar with handling it, and had not gotten "tuned up to it," that polishing the handles presented a definite problem, and that these things may have had something to do with their reaction to it when they were given it on a piece-work producion basis, he later testified as follows, on cross-examination : Q. Mr. Pugsley, on Wednesday you testified that Mr.... I am referring to Wednesday of the first week of June 1946 .. You testified that Mr. Mack suggested that you give these men a chance to see if these things did not straighten themselves out. Now, you also testified that you immediately came in the very next day and insisted that they be fired. Did you consider that giving them a chance, one day? He suggested thirty days originally, did he not? A. From my observation. yes, I thought they'd had plenty of time. In the foregoing comments on the events of Wednesday, the incongruity of this type of conduct by Pugsley has been pointed out Standing alone it is not understandable in a balanced and skilled plant manager-but here again we find the intervening factor in the talk on Wednesday night with Dyer, when the latter had just come into possession of the information that one of the men intended to go to Benton Harbor that afternoon to get a supply of union cards. That information brought the situation to an immediate crux. If there was i:n inclination to defeat the Union. immediate action was indicated. Such cricnmmtauces, ind no othei ilisclomed by the record could readily account for Thursday's repetition of the demand for the discharges. In fact, Roy Fuller did go into Benton Harbor Thursday afternoon. When Lynn Davis called on Pugsley on Wednesday to arrange for reemployment, he talked with the polishers about their union plans. Davis was the only one in the group familiar with the operation of unions and on this visit arranged to take Fuller to the union office in Benton Harbor the next day. The visit was made as planned and Fuller was supplied with a quantity of application cards and instructed generally as to how to proceed. This call at Benton Harbor apparently was made after working hours. The next morning, Friday. June 7, Davis reported at the plant for work and was assigned to polish grills Fuller, meantime, told the men he had obtained the cards and during the noon luncheon period, while in his car parked across the road from the plant. obtained the signatures of Glenn Fuller, Lynn Davis, Lovell Martin, and William Arvin Martin While these men were signing, an arrangement was made among them to meet after working hours, in front of the tavern at Keeler 22 and there obtain the signatures of the rest of the day-shift polishing crew. Notice of'this plan was to be and was passed by word of mouth among the men during the afternoon As the men returned at the end of the luncheon period, Ritter asked Fuller, "What are you boys cooking up," to which Fuller replied, "Nothing." In view of Ritter's testimony that the men had been talking "Union-Union-Union" and that as early as Tuesday. June 4, Fuller had asked Ritter if he did not want to 22 Keeler is a verb small community consisting of a store and a tavern and a few houses, a mile or so from Respondent's plant It is at the tavern that many of the employees cash their pay checks on Friday nights , while the store is a normal source of supply for groceries, etc. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD join a union and had been told by Ritter that he "didn't think Mr Burnette would like that," this inquiry byoRitter has more than casual4meaning. This is especially so in view of the credited testimony of Lovell Martin that, during the afternoon of Friday, the 7th, he met Ritter at the coca cola machine near the clock and got change from him to use in the machine: A. . . . He gave me the change and said, "Well, Lovell, tonight's the night, is that right?" At first I didn't know what he meant, so I said, "What do you mean, tonight?" And he said, "You know what I'm talking about, to meet with the Union up at the Tavern," so I said, "No, I don't know anything about it," but I did at that time. As promptly as they could do so after being paid, Roy Fuller, Glenn Fuller, the Martin brothers and Lynn Davis went to Keeler and established a union recruiting stand across the road from the tavern, using the tail gate of Davis' small truck as a desk. They remained there about 2 hours and as the employees and especially the members of the polishing crew came up, they would be hailed and invited to sign cards. During that day approximately 20 applications were taken. Bert Morrison, who has been heretofore described as father-in-law of Rollins and a brother-in-law of Burnette, the obvious controlling factor of Respondent, testified credibly that as he and his wife who also was then employed at the plant, punched in after the luncheon period on Friday, Ritter "stopped us and pulled us off to one side and had a talk with us and he wanted us to not mess up -with this gang that was forming a union because he said, `They're going to all get fired.' " Morrison had received word of the meeting at Keeler and drove there on his way home, with his wife and Rollins also in the car. He stopped in front of the tavern opposite the truck where the men were taking applications. Almost im- mediately Ritter drove up and parked behind Morrison, then got out of his car and walked toward the tavern, stopping long enough to speak to Morrison. Morrison's testimony on this was : A. Why, he seemed to be just a little vexed. He talked pretty straight to us. He said, "You better stay right out of that or you're sure going to get fired, all of you is going to get fired." Seemed to be a little mad about.. . A. That's about all. I got out of my car and went over to sign with the boys. Although Ritter was supposed to be on duty at the plant until 7 p. m., the credible testimony of a number of the Board's witnesses placed him at the tavern during the period when the union memberships were being openly solicited. Rit- ter did not deny having been there but stated he could not identify the occasion because he frequently has to make trips to the store and into others of the sur- rounding communities during his working hours, to make incidental purchases for the plant. He stated that he has no recollection df having seen the men gathered around Lynn Davis' truck at Keeler and generally denied all knowledge of or participation in any of the specific things attributed to him by the numerous -witnesses who testified concerning his statements and conduct. About the only thing Ritter acknowledged was that he delivered the final pay checks to the discharged employees on Saturday, June 8, and as to these, he categorically denied that he knew that the men were being discharged or that anyone at the plant had told him anything other than to instruct him to deliver the envelopes to the BURNETTE CASTINGS COMPANY 419 persons to whom they were addressed , notwithstanding Pugsley's testimony that he explained'to Ritter the reason for the Saturday delivery of the. checks;, that "that would be the natural thing to do." Ritter's tesimony so fails of persuasive- ness except where confirmed by credible corroborative evidence or circumstances, that it can he given little, if any, consideration as credible, probative evidence. Instead of disclosing the complete disinterest in the union activities which he professed, his evidence, when fitted with the recitals of credible witnesses, com- pels the conclusion that he entertained a hearty antipathy to any union of the employees. In stressing the testimony concerning Ritter's conduct, it is recognized that he is not a supervisor nor a responsible representative of management as the terms normally are used. It is also recognized that the record contains no direct evidence that Ritter's duties involved espionage, although as guard he normally would be expected to make reports to management on any matters observed by him which involved fire hazards, purloining of stock, equipment or supplies, or hazards to its property in any other manner. His status as an active deputy sheriff charged with preserving law and order and regularly covering certain drinking spots in the county on week-ends, adds some element to his general position in the plant. The fact that he was described as a "general factotum," and in all his activities with regard to the employees was acting under the im- mediate direction of either the "front office" or the superintendent, indicates a closer relationship with management than with the regular employees. As a souice of information to management, he therefore becomes an element to be considered in evaluating the over-all picture presented by this case. The incidents of Saturday morning, June 8, 1946, covering the preparation that morning of the final pay checks, their delivery to Pugsley and their distribution by Ritter have been described. There is no conflict as to what happened in that regard. It was but a closing scene in the sequence of unorthodox management conduct marking the affairs of that week as described by Pugsley. Of the 20 persons, excluding Rollins, listed as employees,of the polishing de- partment on June 7, all but Louis Carlock, a rough bore operator, Horatio Cheney, a packer, Thomas Miller, Harry Rouse, Harry Timmons, Raymond Vliek and William Sweeney, all polishers, openly participated in the organizational activi- ties of June 7, and on that day, signed application cards, either at Fuller's car at noon or at the tavern in the afternoon No effort was made to conceal what they were doing. In every instance the signing was done within sight of Ritter. With this in mind, it is highly significant that when the discharge notices and checks were prepared and delivered the following morning, only those who had thus signed the cards-with the exception of Vliek-received them. None of the non-signers, except Vliek, was discharged and the fact that Vliek was promptly reinstated on June 11 only emphasizes the conclusion that this clear-cut division was much more than a mere coincidence. The same distinction arises also in the case of John Sweeney. This man was second in seniority in the grinding department. His step-son, William Sweeney, was and is employed in the polish- ing department. On the afternoon of the 7th, Sweeney and his step-son drove to the tavern to have their checks cashed. After returning to their car, Sweeney noticed the men around Davis' truck. He also saw Ritter sitting in his car across the road. Sweeney, a union man of long standing, left his car, went over to the -union group, signed an application card, returned to his car and drove home. His step-son did not leave the car or give any other evidence of interest in the Union so far as the record discloses. Sweeney, too, was discharged the next ,morning but his step-son stayed on. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Comment has already been made on Pugsley's stated reason for Sweeney's discharge, but within a short time thereafter, he hired a new man-a complete stranger-to do the same work Sweeney had been doing Pugsley's reasons for hiring this man, he said, was that one of his polishers in Dyer's crew had asked him to do so because, if this new man were given employment, he (the polisher) could then have a ride between his home and the plant in the new man's car Rollins remained unadvised that his crew had been dismantled, that all the polishing would be done in a single day crew, that his foremanship had been dis- continued; and that thereafter Dyer would be in charge, until he went to the plant Monday morning, June 10, fully expecting to go to work with some sort of a crew and as its foreman. However, on arrival, he found Dyer had taken charge. Rollins, who gives the impression of not being particularly aggressive, did not question the change, and, seeking to make himself useful, took over the task of giving instructions to the newcomers from the night crew, most of whom were unacquainted with the problems of polishing the more difficult articles which had marked the major part of the old day crew's work The events up to June 8 constitute a group of circumstances that indicate a strong hidden force motivating the discharges, but contain little of direct evi- dence as to the attitude of Respondent's management toward unionization of its employees. However, the subsequent events, taken in conjunction with the fore- going circumstances, and the perfect timing of the discharges, are more revealing and lead to the conclusion that but for the union activity of June 4 to 7, there would have been no discharges. On the afternoon of June 10, the discharged group, determined to intensify its union drive, stationed itself at a strategic point in the road some distance beyond Keeler, prepared to wave down the home-going cars of the day-shift employees and solicit memberships in the Union. One such car, driven by Richard Childs and carrying Dyer and three other employees, was stopped. Lynn Davis ap- proached the car with cards in his hand. He asked one of the riders (Briggs) to join and received the reply that he would do so if the others did. Davis then turned to Childs who indicated a willingness to join Davis' credited testimony as to what happened is: A. And he wanted to join. He said if the others joined, so, I said to the driver, "How about you, driver?" Q. Who was the driver? A. Richard Charles, and he says, "Yes. I guess I might as well join," so I walked around his car where I'd be next to him and started filling out a card, and when I had his card completed except for his signature I handed it to him and Dyer said, "I wouldn't he in any big hurry if I was these people to join the Union." Now, these may not be his exact words, but he said, "I wouldn't be in a big hurry, because you know what happens to you and what's to prevent the same thing from happening to the other people if they join the Union " Q. Anything else said? A. Yes, Charles said he would sign it later and Briggs and his wife said they'd wait, and Dyer said, "You wouldn't expect me to join would you?" And I said, "No, I wouldn't expect you to join." In substance, the foregoing was confirmed in its entirety, by the credible testi- mony of Gilbert Hitchcock. Dyer confirmed the incident up to the point where he is charged with having called Davis' attention to his own discharge and warned the others that they could expect the same treatment He denied having BURNETTE CASTINGS COMPANY 421 said this. However, in view of the many other statements credibly attributed to Dyer, his denial is not credited and it is found that the incident occurred sub- stantially as above set out. Following the June 8 discharges and the shift of Dyer and his crew from the night to the day shift, Dyer held many conversations with the men of his crew warning them that if the Union were to establish itself in the plant, Burnette would close it down On one particular occasion shortly after June 10, in a conversation with Richard Charles and William Parmley, both of his crew, Dyer made the statement that under no circumstances would the men who had been discharged on June 8 be allowed to return. Concerning this conversation, Dyer's testimony reads : Q. Did you in those conversations with them say anything about the plant closing down? A. There's only one statement I made to any effect of that sort. Q And what was that statement? A That was that I knew definitely that those men would not get back in the shop but, if they did, the plant would be apt to close. * A. No, what I had in mind was that I was positive that those men not be brought back on the job. * * * * * would * Q You were telling these men who were talking to you that they need not be concerned about these other men being brought back? A. That's right. Q. Why were you so positive? A Because I knew-that the way conditions were in the plant, the week pi for to the lay off, that there just wouldn't be any plant in existence, that that condition couldn't exist. Q Did you tell them that the plant would close if'they brought those men back? A I told them it was apt to Q Did Mr. Burnette ever tell you that'? A No. According to Allie Fuller. one of Dyer's crew, he and Dyer were eating lunch at Keeler some 3 weeks after the June S discharges Fuller had joined the Union on June 8 and was soliciting Richard Charles to join. At lunch, the subject arose and during the conservation. Dyer told Fuller, according to the latter, "Mr. Burnette won't tolerate any Union and if the Union got in we'd all' be out of a job." -'3 On June 10. 1946. the representative of the Union called on Mack to protest the discharges but was told by Mack that the men had not been discharged for ounion activities. On August 22, 1946, a consent election agreement was signed, in which it was stipulated that the discharged employees would not be permitted to vote In the election, held September 12, 1946, the Union was un- successful by a vote of 44 to 4.5 There appear to have been no objections filed- concerning the election 23 The foregoing are only a few of the incidents testified to in which Dyer is charged with having made statements of the above character. No substantial purpose would be served by furtliei reference to their Similar statements are credited to Cecil Stair, fore- nian,of the molding department Both Dyer and Stair denied the statements, but in all, the circumstances, such denials cannot be credited 809093-49-vol 79-28 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -Alice Bi own signed a union card in the ladies ' rest room on June 7. It had bben given,to herby William'AFMartin as she passed by his,machi"ne and after being signed was unobtrusively returned by her to him. On the evening of June 7, she was told as she received her regular pay, that she was being laid off, together with two other women. There is no substantial evidence that anyone in management knew she had either joined the Union or evidenced any interest in it. The lay-off was apparently a normal one. Brown had not been in good health. She frequently had to stop her work and relax during the day and, since Respondent made no pretense of observing seniority, her selection for lay-off was not illogical. There was no unfair labor practice in this. Some evidence was offered to indicate that Brown had been discriminated against on the matter of recall. With the disclosure on June 10 of her union membership, when the union representative called on Mack, there might be some thread to tie the failure to recall her to her union membership, but it is too tenuous and thin to be classed as substantial and probative evidence. There is no evidence of a custom of recalling employees, in or out of order. There clearly were no rules of seniority. Under such circumstances, Respondent was under no obligation to recall her. In the absence of a clear showing that her failure of recall was directly due to her union,affiliations, no unfair labor practice for such failure may be inferred. Leonard Harbin was an active leader in the union movement. The evidence pertinent to his conduct in the plant indicates, however, that he made himself ,obnoxious as an emplo> ee. His was the orals conduct described by Pugsley that fitted into his charge that the men were not cooperating. He was not named in the complaint as having been discriminated against. In view of the fact that, although in general, his position was not unlike that of the others who were discharged on June 8, the Union did not see fit to name him in the charge, and the Board omitted his name from the complaint, it must be assumed that his discharge was bottomed on good cause, independent of the factors hereto- fore dwelt upon as applicable to the group as a whole. Analysis and concluding findings The evidence fails to support Respondent's contention that the discharges of June 8, 1946, arose from misconduct of the dischargees, combined with a previously made decision to consolidate the day and night crews. There is no single fact that leads to this conclusion, but the whole record, the "congeries of the whole facts," when fitted together and laid out in paralleling time sequence, fully sup- ports substantially all the allegations of the complaint. Pugsley's first recorded official act was the pay-rate, reductions of May 28. His resentment at the protests of the day-crew polishers and their refusal to accept the cuts complacently, carried over to the following week, the first week of production under his official supervision. When the men returned to work on Tuesday, June 4, they were discontented and discouraged. He knew it. This discontent, however, did not carry itself to Dyer's night crew. They were but little affected by the rate cuts, did not make an issue of them, and otherwise did nothing to incur Pugsley's displeasure. On that Tuesday, the day crew began an agreed 30 days' trial of the new rates. The next day, Pugsley learned from Morrison of the Union activity among the day crew and suggested to Mack that they be discharged. Mack refused his request and insisted the men be allowed the agreed 30 days to test the new rates. That evening, Pugsley talked to Dyer about his troubles with the day crew. At BURNETTE CASTINGS COMPANY 423 that time, Dyer knew of the union activity in the day crew and specifically, that next day (Thursday ) one of the group intended to get a supply of union cards with which to begin the union organizational campaign . He had every oppor- tunity and an excellent occasion to pass this information to Pugsley . Notwith- standing the denials of both, there is a justifiable inference that Dyer did so. On the next day, Thursday , Pugsley again discussed the discharge of most of the day crew with Mack. That Mack then authorized him to make up his list of those to be discharged and give it to him early Friday is not only questionable but highly improbable. Mack, when on the witness stand, did not create the impression of a business man who would so far disregard his commitment to his employees for a 30 days' try-out period as to discharge the major portion of his best qualified men for failure , after 3 days had expired , even in the face of a threat by his new and untried superintendent to quit if the discharges did not take place. It is equally questionable and improbable that Mack received the list early Friday morning, did not bother to discuss with Pugsley any of the names on it , or the reasons for individual selections , but signed the list immedi- ately and passed it on to the Pay-roll Department . As has been noted , had such a decision been made then, a concomitant decision would be expected with ref- -erence to moving the night shift crew up to the day shift . They were practically the only ones left to do polishing . But that instruction was not given by Mack until Saturday morning, after a full opportunity had come to Mack and Pugsley to learn the identity of the men who had signed the Union cards the preceding afternoon . The fact that the pay roll was distributed Friday afternoon without mention that the services of any of the men were being terminated militates against the credibility of the statements that the list was made up and placed in Mack's hands and by him passed to the Pay-roll Department , Friday morning. There is no plausible or persuasive explanation of any of these unusual and unorthodox occurrences . No instance was cited of insubordination or deliberate slowing down of production . The circumstances then existing admittedly were such that normal production could hardly be expected , but the production records, taking these circumstances into consideration , fail to indicate a deliberate slow- down. While the record fails to disclose direct evidence of animosity by either Burnette, Mack or Pugsley toward the unionization of the employees , the evidence concern- ing remarks by Ritter, Dyer and Stair that such animosity existed to the extent that the plant would be closed down if a union came into it, and Dyer's remarks (1) that by signing a union card , Charles would be in line for dismissal such as the others had suffered a few days before , and (2 ) that the plant would be closed before management would return the dischargees of June 8 to their jobs, are ample to support a finding that such animosity did, in fact, exist. In view of all the facts herein set out, it is found : ( 1) That Respondent enter- tained an active animosity toward the unionization of its employees ; (2) that Pugsley was kept currently informed on the progress of the union movement in the plant , including the identity of those employees who, up to and including the membership campaign at Keeler on the afternoon of Friday, June 7, openly signed membership cards; ( 3) that Pugsley did not receive blanket authority from Mack on Thursday to discharge whom he pleased from the day -shift polishing crew ; (4) that Pugsley did not prepare the list of employees who were ultimately dis- charged, on Thursday night, June 6 and did not deliver such list, with only the name of Lynn Davis omitted , to Mack on Friday morning, June 7; (5) that Mack did not deliver such list to the Pay -roll Department Friday morning , June 7; (6) that the list, if any , was compiled by Pugsley between the close of the mem- 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership solicitations at Keeler on Friday, and Saturday morning, June 8, (7) .that Vliek was reinstated promptly,,for the reason that he had not participated in the Union activities; (8) that the persons named in the complaint, with the ex- ception of Alice Brown, were selected for discharge solely because they were known to have participated in the Union activities and to have signed member- ship application cards of the Union, and to discourage membership in the Union ; (9) that by the remarks heretofore found to have been made by Dyer and Stair, Respondent made statements to its employees indicating its hostility to the organ- ization of the employees by the Union or.any other- labor organization, threat- ened to discharge employees who joined or were active in behalf of the Union or, any other labor organization, and threatened to close its plant and dis- charge its employees rather than permit them to affiliate with the Union or any other labor organization; (10) that by such conduct and by the discharges above referred to, Respondent has interfered with, restrained, and coerced its employees in the rights guaranteed them in Section 7 of the Act; (11) that the lay-off of Alice Brown was in normal course and that Respondent's failure to recall her was, and is, under the practices of the plant, solely a matter of admin- istrative discretion; (12) that there is no evidence of interference on the part of Respondent, by threats or otherwise, in the conduct of the consent election of September 12, 1946.2' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in' Section III, above , occurring in connection with the operations described in Section 1, above, has a close , intimate, and substantial relation to trade, traffic and commerce among the several States. and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. It has been found Respondent, on June 8, 1946, discriminatorily discharged and terminated the employment of Lynn Davis, Glenn Fuller, Roy Fuller, William Arvin Martin, Lovell Martin, John Dorkowski, Bert Morrison, Verle Taylor, Gilbert Hitchcock, Clint Skyrme, Orin Michels, John Sweeney, and 24 The complaint contains an allegation of surveillance of union meetings by Respondent Since it has been found that Pugsley was kept informed of the union activities of the men, including the identity of those who openly signed cards on Friday, the 7th, and since, so far as the record indicates, Ritter was the only person closely associated with management who was in a position to have and report this information to Pugsley, it is a reasonable inference that Ritter's observations formed the basis of the information on which the dis- charges were based There is no seasonable basis , however, to inter that Ritter was acting under instructions from Pugsley or any other person in management in getting this informa- tion It is more reasonable to believe that his conduct was that of a volunteer and that in that capacity he passed the information to Pugsley He was not a supervisor or a responsible representative of management, and, regai dless of how reprehensible his conduct may have been in his volunteer spying operations, I am unable to find that it constituted surveillance by Respondent There is some testimony by Foreman Stair that on one occasion subsequent to June 7, he attended what apparently was an open meeting of the Union, '*out of curiosity " This is not regarded as sufficient in, the circumstances of this case, to constitute surveillance, as such, although under other circumstances an opposite finding might be justified The incident is dismissed as a display of poor judgment by Stair and no finding is made on this allegation of the complaint. BURNETTE CASTINGS COMPANY 425 Peter Kruslak for the reason that they joined and assisted United Electrical, Radio and Machine Workers of America, Local 931, CIO, and engaged in concerted activities with other employees of Respondent for the purpose of collective bargaining and other mutual aid and protection. It will be recommended that Respondent offer each of the foregoing employees immediate and full reinstate- ment- to their former or substantially equivalent positions' without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of such discrimination, by payment to each of them of a sum of money equal to the amount they normally would have earned as wages during the period from June 8, 1946, to the date of such offer of reinstatement, less their net earnings, if any, during said period ; and that Respondent post appropriate notices to its employees as hereinafter more fully set out. Upon considered review of the entire record, the undersigned is convinced that Respondent's conduct indicates an attitude of opposition to the purposes of the Act generally. In order, therefore, to make effective the interdependent guar- antees of Section 7 of the Act, to prevent a reoccurrence of unfair labor prac- tices, and thereby minimize industrial strife which burdens and obstructs coin- merce and thus to effectuate the policies of the Act, it will be recommended that Respondent cease and desist from in any manner infringing upon any of the rights guaranteed in Sectioh''7 of the Act. Upon the basis of the foregoing findings of tact and upon the entire record, the -undersigned makes the following: CoNcLusioNs OF LAW 1. United Electrical, Radio and Machine Workers of America, and Local 931, United Electrical, Radio and Machine Workers of America, affiliated with the CIO, are labor organizations within the meaning of Section 2 (5) of the Act. 2. Respondent by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices within the meaning of Section S. (1) of the Act. . 3. By discriminating in regard to the hire and tenure of employment of Lynn Davis, Glenn Fuller, Roy FhIler, William Arvin Martin, Lovell Martin, John Dorkowski, Bert Morrison, Verle Taylor, Gilbert Hitchcock, Clint Skyrme, Oris Michels, John Sweeney, and Peter Kruslak, thereby discouraging membership in United Electrical, Radio and Machine Workers of America, Local 931, affil- iated with the CIO, Respondent has engaged in and is engaging in unfair labor -practices within the meaning of Section S (3) 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. By discharging or laying off Alice Brown on June 7, 1946, Respondent has -engaged in no unfair labor practices within the meaning of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that Respondent , Burnette Castings Company, of Hart- ford, Michigan , its officers , agents, representatives . successors , and assigns shall : ss 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, San Juan, Puerto Rico, Branch, 65 N. L. R. B. 827. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : Ta) Discouraging membership, in United Electrical , Radio rand Machine Work- ers of America and Local 931, United Electrical , Radio and Machine Workers of America , affiliated with the CIO , or any other labor organization , by discrim- inating in any manner in regard to the hire or tenure of employment, or any condition of employment of any person in its employ , because of his member- ship in or assistance to any labor organization or his engagement in concerted activities with other employees of Respondent for the purpose of collective bar- gaining and other mutual aid and protection ; (b) In any other manner interfering with , restraining, or coercing its em- ployees in the exercise of the right to self-organization , to form labor organiza- tions, to join or assist the above-named labor organization or any other labor organization , to bargain collectively through representatives of their own choos- ing, 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 will effectuate the policies of the Act : (a) Offer to Lynn Davis, Glenn Fuller, Roy Fuller, William Arvin Martin, Lovell Martin, John Dorkowski , Bert Morrison , Verle Taylor, Gilbert Hitchcock; Clint Skyrme, Oris Michels , John Sweeney and Peter Kruslak, full and immediate reinstatement to their former or substantially equivalent positions , without prej- udice to their seniority or other rights and privileges ; (b) Make whole the said persons named in the preceding paragraph for any loss of pay they may have suffered by reason of Respondent 's discrimination against them , by payment to each of them a sum of money equivalent to what he normally would have earned as wages during the period from the date of his discharge, June 8, 1946, to the date of Respondent's offer of reinstatement, less his net earnings, if any, during said period ; (c) Post immediately at all points in its plant at Hartford, Michigan, where notices to employees usually are posted, copies of the notice attached hereto as "Appendix A." Copies of said notice , to be furnished by the Regional Director for the Seventh Region , shall, after being duly signed by Respondent 's representa- tive, be posted by Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places including the bulletin boards above described . Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered , defaced, or covered by any other material; (d) Notify the Regional -Director for the Seventh Region in writing, within ten (10 ) days from the date of receipt of this Intermediate Report and Recom- mendations, what steps Respondent has taken to comply therewith. It is recommended that the allegations of the complaint pertaining to the alleged discriminatory discharge of Alice Brown , and to threats to discharge employees who failed to vote against the Union in a forthcoming consent election, and to alleged surveillance by Respondent of union meetings, be dismissed. It is further recommended that unless on or before ten (10 ) days from the receipt of this Intermediate Report, the Respondent notify the Regional Direc- tor for the Seventh 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 BURNETTE CASTINGS COMPANY 427 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, Rocliambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding ( including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for' the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65. As further provided in said Section 203.39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. Dated June 17, 1947. APPENDIX A R. N. DENHAM, Trial Examiner. NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organ- izations, to join or assist UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, AND LOCAL 931, UNITED ELECTRICAL, RADIO AND MACHINE WORK- ERS OF AMERICA, AFFILIATED WITH THE CIO, 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. WE WILL OFFER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prej- udice 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. Lynn Davis Glenn Fuller Roy Fuller William Arvin Martin Lovell Martin John Dorkowski Bert Morrison All our employees are free to become or remain members of the Verle Taylor Gilbert Hitchcock Clint Skyrme Oris Michels John Sweeney Peter Kruslak 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 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any employee because of membership in or activity on behalf of any such labor organization. BURNETTE CASTINGS COMPANY, Employer. By ---------------------------------- (Representative) (Title) Dated------------------- NOTE : Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accord- ance with the Selective Service Act after discharge fiom the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered,,defaced, or covered by any other material