I. F. Sales Co.

In the Matter of I. F. SALES COMPANY and INTERNATIONAL MOLDERS AND FOUNDRY WORKERS UNION OF NORTH AMERICA (A. F. L.) Case No. 8-CA-19.-Decided March 16, 1949 DECISION AND ORDER On September 17, 1948, Trial Examiner James A. Shaw issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged, and was engaging in certain unfair labor practices in violation of Section 8 (a) (3) of the National Labor Rela- tions Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respond- ent filed exceptions to the Intermediate Report and a supporting brief. The Respondent's request for oral argument is hereby denied, as the record and brief, in our opinion, adequately present the issues and the positions of the parties. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following additions and modifications : 2 We agree with the finding of the Trial Examiner that the applica- tion of the Respondent's no-solicitation rule to prohibit union activ- ities of its employees during their lunch period constitutes an unrea- i Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -man panel consisting of the undersigned Board Members [ Chairman Herzog and Members Houston and Mur- dock). I In its exceptions to the Intermediate Report Respondent objected-without, however, citing specific instances-to the conduct of the Trial Examiner at the hearing, charging him with bias and prejudice and with prompting counsel for the General Counsel in the course of the examination of witnesses in derogation of his duty to remain fair and im- partial. We find no basis in the record for these charges. The Respondent's exceptions to the conduct of the Trial Examiner are hereby overruled. 82 N. L. R. B., No. 12. 137 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sonable interference with their rights protected by Section 7 of the Act. The Respondent sought to establish at the hearing and in its brief that the lunch hour of its employees, even where, as in this case, the employees are legitimately away from their place of work, is "company time" because Respondent pays them for that time.' We are unable to agree with Respondent's contention. The mere fact that an Employer compensates his employees for lunch and rest periods-however short, and whether or not regularly scheduled- during which they are free to leave their places of work and assemble to eat or talk,4 does not justify him in attempting to curtail their right to engage in concerted activities at such times .5 Accordingly, we find, as did the Trial Examiner, that because the application of the Respondent's no-solicitation rule to lunch periods when employees may properly be away from their places of work is in itself unlaw- ful,s the discharge of John Wherley pursuant to such an illegal appli- cation of the rule of necessity constitutes a discriminatory discharge within the meaning of Section 8 (a) (3) of the Act.7 In any event, we are persuaded that violation of the Respondent's no-solicitation rules was not the real reason for the discharge of John Wherley, but that in fact the rule was used as a pretext for discharg- ing Wherley because of his activity in the Union. This conclusion finds support in the fact that in the encounter between Wherley and Superintendent Pollick on Friday, at the end of the shift in which the card-passing incident occurred, Pollick accused Wherley of being 8 Respondent's foundry runs on a three -shift schedule. Each shift is 8 hours long with no regularly scheduled time off for lunch, and employees are paid for the full 8 hours. Employees are expected to eat their lunch at such times as will not interfere with the performance of such critical operations as pouring molten metal or beginning or terminat- ing a cycle on the annealing furnace 4 We agree with the finding of the Trial Examiner that on the occasion of the so-called "card-passing incident" it was permissible for Wherley to be away from his annealing furnace for the 15 or 20 minutes he took to eat lunch with the other employees in the lunch room . Respondent attempted to prove other instances of solicitation by Wherley at times when he should have been at work, and solicitation of other employees at their work. But the Trial Examiner found, and we agree, that these instances-if they oc- curred-could not have been the reason for Wherley' s discharge because they did not come to Respondent 's attention until a short time before the hearing in this case. 4 Cf. Matter of North American Aviation, Inc., 56 N. L. R. B. 959 ; Matter of W. T. Smith Lumber Co., 79 N. L R B. 606 Respondent argues that to permit solicitation during lunch periods would encourage its employees to prolong their lunch periods and thus interfere with the efficient operation of the plant. This contention loses force in the face of the absence of any restriction on the activities of employees during this free time , other than the restriction upon solicitation. Furthermore , the record does not indicate that either Wherley or any of the other em- ployees at any time jeopardized the efficiency or the output of the plant by overstaying their lunch periods or remaining away from their work places when critical operations were to be performed E Inasmuch as there was no such allegation in the complaint , we, like the Trial Examiner, shall not find the illegal application of the no-solicitation rule to be an independent viola- tion of Section 8 (a) (1). See Matter of Central Minerals Co., 59 N. L. R. B. 757. 7 See Republic Aviation Corp . v. N. L. R. B.; N. L. R. B. v LeTourneau Company of Georgia, 324 U. S. 793. I. F. SALES COMPANY 139 behind the Union but made no mention of Wherley's violation of the rule. It was not until the following Monday, at the time of his dis- charge, that Wherley was notified for the first time that the Re- spondent regarded the passing of the card in the lunch room as a violation of the no-solicitation rule. It is significant that in the interim, at the union meeting on Sunday, it was Wherley who identi- fied Pollick among the audience, following which Pollick was asked to leave the meeting. THE REMEDY Having found that the Respondent's no-solicitation rule is illegal as applied to union activities during the lunch periods of its employees when they are permitted to be away from their work places, and that the discharge of an employee for violation of the rule so applied, vio- lates Section 8 (a) (3) and, derivatively, 8 (a) (1), we find it necessary in order to effectuate the purposes of the Act to require the Respondent to cease and desist from enforcing its rule at such times. Accordingly, we shall include in our order a provision to this effect in addition to the provisions recommended by the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, I. F. Sales Com- pany, New Philadelphia, Ohio, and its officers, agents, successors, and assigns, shall, jointly and severally: 1. Cease and desist from : (a) Enforcing its rule against solicitation insofar as it applies to union activities during lunch periods while its employees are not required to be at their places of work; (b) Discouraging membership in International Molders and Foun- dry Workers Union of North America (A. F. L.), or any other labor organization of its employees, by discharging or in any other manner discriminating in regard to the hire and tenure of employment of any of its employees. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to John Wherley immediate and full reinstatement to his former or a substantially equivalent position," without prejudice to his seniority and other rights and privileges; $ See Matter of The Chase National Bank of The City of New York, San Juan , Puerto Rico, Branch, 65 N L . R. B. 827. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Make whole John Wherley 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 that which he normally would have earned as wages from the date of his discriminatory dis- charge to the date of the offer of reinstatement, less his net earnings during such period. (c) Post immediately at its plant in New Philadelphia, Ohio, copies of the notice attached hereto marked "Appendix A." 10 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and shall be maintained by it for sixty (60) consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Eighth Region in writing within ten (10) days from the date of this order what steps the Respondent has taken to comply herewith. 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 discourage membership in INTERNATIONAL (A. F. L.) or any other labor organization of our employees, by discharging or in any manner discriminating in regard to the hire or tenure of employment of any of our employees. WE WILL NOT discourage membership in INTERNATIONAL MOLDERS AND FOUNDRY WORKERS UNION OF NORTH AMERICA (A. F. L.) or any other labor organization of our employees, by discharging or in any manner discriminating in regard to the hire or tenure of employment of any of our employees. WE WILL offer to John Wherley full and immediate reinstate- ment to his former or a substantially equivalent position, without 9 See Matter of Crossett Lumber Company, 8 N L. R. B. 440, 492-498. 19 In the event this order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words, "A DECISION AND ORDER" the words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." I. F. SALES COMPANY 141, prejudice to any seniority or other rights or privileges previously enjoyed, and make John Wherley whole for any loss of pay suffered as a result of the discrimination. I. F. SALES COMPANY, Employer. Dated ------------------------- By -------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Ramey Donovan, for the General Counsel. Mr. R. F. Vandemark, and Mr. R. W. Vandemark, of Elyria, Ohio, for the Respondent. Mr. Jack Langley, of Cincinnati, Ohio, and Mr. Carl Hubbell, of Pittsburgh, Pa., for the Union. STATEMENT OF THE CASE Upon a charge duly filed by International Molders and Foundry Workers Union of North America affiliated with the American Federation of Labor, herein called the Union, the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio) issued his complaint against I. F. Sales Com- pany, herein called the Respondent, alleging that the said Respondent had engaged in, and is engaging in, unfair labor practices affecting commerce, within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended (Public Law 101, chapter 120, 80th Congress, First Session), herein called the Act. Copies of the complaint and charge together with notice of hearing thereon, were duly served upon the Re- spondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance : (1) that the Respondent violated Section 8 (a) (1) and (3) of the Act by dis- criminately discharging John Wherley on or about November 17, 1947, and thereafter refusing to reinstate him, because of his membership and activities on behalf of the Union, and (2) that such conduct on the part of Respondent was also violative of Section 8 (a) (1) of the Act. In its amended answer, dated May 25, 1948' the Respondent alleged that, .. not intending to enter its appearance herein except for the sole purpose of denying jurisdiction of this Board to herein determine the charges contained in said complaint," and denied each and every other allegation of the complaint, except those expressly admitted to be true. It admitted that it was an Ohio corporation managing a foundry at New Philadelphia, Ohio ; and that on or about November 17, 1947, discharged John Wherley. It denied, however, that he 1 The Respondent's original answer was filed with the Regional Director of the Eighth Region on April 28, 1948, but was not verified by the Respondent. The amended answer sets forth the same matter as the original answer, except that it is verified in accordance with the Board's Rules and Regulations , Section 203.21. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was discharged for his membership and activity on behalf of the Union. As an affirmative defense the Respondent alleged that Wherley was discharged because of his solicitation from employees of membership in the Union during working hours; that he was inefficient in his work; that he did not have the ability to perform his work ; that he was not qualified to perform his work ; that he had on numerous occasions during working hours conferred with and solicited other employees while at work, thus disturbing and annoying them in their work; that he was employed as a furnace operator and that his work was of such a nature that he was required to be at his furnace at all times and was to eat his lunch there and not to leave the furnace throughout his 8 hours of work; and that on or about November 17, 1947, said Wherley left his furnace and went to the lunchroom in violation of the Respondent's rule. Pursuant to notice, a hearing was held in New Philadelphia, Ohio, on May 25 and 26, 1948, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent appeared by Counsel. The Union was represented by lay representatives. Full oppor- tunity to be heard, to examine and cross-examine witnesses was afforded all parties. At the close of the hearing the General Counsel's motion to conform the pleadings to the proof with respect to minor matters, such as names, dates, and the like was granted without objection. Counsel for the Respondent also moved to conform the answer to the proof in accordance with the testimony of Curtis Pollick, the Respondent's superintendent, relative to certain alleged vile statements made by John Wherley to Pollick on the morning of Wherley's discharge. The motion was denied? Counsel for the Respondent at the close of the hearing moved to dismiss the complaint in its entirety. Ruling on the motion was reserved by the undersigned. It is hereby denied for reasons set forth hereinafter. All parties were given an opportunity to argue orally before the undersigned and to file proposed findings of fact and conclusions of law and briefs in support thereof The parties waived oral argument. A brief has been received from the General Counsel. No brief or proposed findings of fact and conclusions of law have been received from the Respondent. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT As indicated above the Respondent denies that the Board has jurisdiction over it. At the outset of the hearing counsel for the Respondent stated that it was the 2 On direct examination Pollick testified that in an argument with Wherley on the morn- ing of November 15, 1947, the latter called him a "son-of-a-bitch" and that he then went to the office and told the management about the incident , and recommended Wherley's imme- diate discharge. He further testified that he informed management that "either he was going to work there or I was not going to work there, and not both of us." Inasmuch as this incident , if true, would be a defense to Wherley's discharge, and was or should have been within the peculiar knowledge of the Respondent long before either the complaint or answer herein were filed, the undersigned took the position that the answer should have set forth the defense in the first instance, or leave requested during the hear- ing to amend its answer . To have granted the Respondent 's motion would have been unfair to the General Counsel. Moreover, since the matter had been fully litigated in the hearing by the parties, the refusal to grant the motion could have no harmful effect on the Respondent. Again, at least in Ohio, the granting or denial of such a motion is discre- tionary on the part of the Trial Judge. I. F. SALES COMPANY 143 Respondent's position that the Board is without jurisdiction to hear and de- termine the issues in the instant case for the reason that the Respondent is not engaged in interstate commerce within the meaning of the Act as amended. At the hearing herein the parties stipulated certain commerce facts. Additional facts relative to the Respondent's business were supplied by the testimony of Carl H. Ingwer, and Joseph A. Frates, III, the Respondent's president and secretary-treasurer, respectively, which the undersigned credits. From the stipulation referred to above and the testimony of Ingwer 3 and Frates the undersigned finds that the Respondent is an Ohio corporation, with its principal office and place of business in Elyria, Lorain County, Ohio. Among its activities, authorized in its Articles of Incorporation, it is engaged in the management and operation of a malleable iron foundry in New Philadelphia, Ohio, for the Ridge Tool Company, of Elyria, Ohio, under the terms of a contract executed by the parties September 27, 1947. The plant is leased by the Ridge Tool Company.4 All the equipment is owned by the Ridge Tool Company, and all the raw materials used in the manufacture of the malleable iron castings is furnished by it. The raw materials consist principally of cast iron, steel scrap, and sand. In addition Ridge Tool pays the rent for the plant premises, taxes, and insurance on machinery and equipment, pays all power and utility bills, keeps the equipment in repair, maintains the building, pays all invoices for materials and supplies machinery and equipment, and invoices customers for finished or semi-finished products and collects for same. The Respondent herein operates and manages the plant ; with complete super- vision over the labor employed to operate the plant, with the responsibility of hiring and firing, fixing wage rates and salaries. The Respondent meets all the pay rolls of the employees, and assumes the responsibility for withholding tax, workmen's compensation insurance, social security, unemployment compensa- tion, and all other expenses incidental to the employment of employees. After the pay rolls have been met by the Respondent, it then bills the Ridge Tool Company for the gross amount of said pay rolls, who in turn pays the Respondent a percentage on the gross amount, as its remuneration for managing and operating the plant. Ridge Tool Company ships all the raw materials to the Respondent by trucks from its plant in Elyria, Ohio. The semi-finished castings manufactured by the Respondent are returned to Ridge Tool Company plant in Elyria, Ohio, in the same manner. Ridge Tool Company then uses the semi-finished castings to make their finished products. During the month of October 1947, the Respondent manufactured approximately 13 tons of castings for wrenches, and in November 1947, approximately 25 tons, all of which went to Ridge Tool Company at Elyria, Ohio. The parties also stipulated that Ridge Tool Company uses approximately six or seven hundred tons of castings per month ; and that Ridge Tool Company is engaged in interstate commerce within the meaning of the Act. The Respondent contends that the facts set forth above, even though true are not competent or sufficient for the Board to make a finding that the Respondent is engaged in interstate commerce within the meaning of the Act, and that con- 3 The undersigned also bases his findings herein on a copy of a contract between the Re- spondent and the Ridge Tool Company, offered in evidence by the Respondent . Said con- tract having been identified by the witness Ingwer. d The Respondent and Ridge Tool are closely related in that the Respondent 's president and secretary-treasurer are the son and son-in -law respectively of the president of Ridge Tool . Moreover , their respective wives are the vice presidents of the company. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sequently the Board is without jurisdiction in the premises and that the com- plaint should be dismissed. Upon the above-admitted facts, the Act is plainly applicable to the Respondent and the employees involved herein. The fact that the Respondent receives all its raw materials from Ridge Tool Company's plant in Elyria, Ohio, and ships to the latter its entire output of finished products is not controlling. Admittedly the Respondent receives all its raw materials and ships its finished products in intrastate commerce, but this is not the test. The test of the Act's application has been set forth in clear and concise language in the Jones d Laughlin' case, where the Supreme Court held that the test is whether "stoppage of . . . opera- tions by industrial strife" would or may result in interruption of or interference with the free flow of goods in interstate and foreign commerce. It is clear that a stoppage of the Respondent's operations would immediately and directly operate to interfere or curtail the operations of the Ridge Tool Company which admittedly is engaged in interstate commerce, and the Board and the courts have so found The position of the Respondent in the considered opinion of the undersigned, and he so finds, is that of a processor. The Board and the courts have on several occasions been confronted with like situations. It is well settled that the Act prior to its amendment was applicable to processors where the owner of the materials both in their raw and finished state moved them in interstate commerce after further processing. See N. L. R. B. v. Maynard K. Van Deuson, etc., 138 F. (2d) 893 (C. C. A. 2) ; 45 N. L. R. B. 679. In that case the court had the following comment to make, inter alia: The first and major objection raised by the respondent is that he was not engaged in interstate commerce within the meaning of the Act, and hence that the Board was without jurisidiction to enter its order. He urges that, in view of the small proportion of the total Tiny Town work done by him, it is quite possible for all of the raw materials used by him to have come from within the state and for all the garments processed by him to have been sold within the state. But the stipulation of parties cannot properly be thus construed. Its reasonable interpretation, as well as the natural as- sumption from the circumstances-no attempt at separation of the interstate and intrastate elements by Tiny Town being suggested-is that the materials received and garments delivered by respondent, however small a part of Tiny Town's total business, represented the same division of materials received from or delivered without the state as did the total business. On this view of the facts, and although no exactly analogous case has been cited, we are clear that the Board had jurisdiction. It is well settled that the Act is applicable to a processor where the materials processed are moved to and from the processor by their out-of-state owner. N. L. R. B. v. Bradford Dyeing Ass'n., 310 U. S. 318, 60 S. Ct. 918, 84 L. Ed. 1226; [895] N. L. R. B. v. Fainblatt, 306 U. S. 601, 59 S. Ct. 668, 83 L. Ed. 1014. While Tiny Town here was also located in New York, the facts that the raw materials emanated from and the finished products were shipped into other states and the work done was part of a continuing process of a single manu- facturer present a sufficiently analogous situation to justify the conclusion e 301 V. S. 1. See N. L. R. B. v. Ridge Tool Company, 58 N. L. R. B. 1095; 151 F (2d) 947 (C. C. A. 6), November 26, 1945. I. F. SALES COMPANY 145 that respondent was engaged in interstate commerce within the meaning of the Act. But even if we should accept respondent 's contention that none of the raw materials or finished garments of his plant ever entered interstate com- merce, we think the same result would follow . A labor dispute limiting production in respondent's plant would necessarily tend to curtail and disrupt Tiny Town's interstate shipments by compelling Tiny Town to divert dresses from its interstate to its intrastate business. Such an impact of a labor controversy upon interstate commerce is within the remedial control of the Board. As was said in N. L. R. B. v. Cleveland-Cliffs Iron Co., 6 Cir. 133 F. 2d 295, 300 : "Curtailment of or interference with interstate commerce is a realistic and not an academic concept." Here we find the necessary ingre- dients according to current conceptions of interstate commerce and of national power. There is nothing in the Act as amended , or in its legislative history to show or indicate that the Congress had a contrary idea in amending the Act. Hence, the undersigned finds that the Respondent herein is engaged in interstate com- merce within the meaning of the Act as amended , and that the Board has jurisdiction over the subject matter. II. THE ORGANIZATION INVOLVED The International Molders and Foundry Workers Union of North America, af- filiated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the National Labor Relations Act as amended. III. THE UNFAIR LABOR PRACTICES Introduction In order to understand the Respondent's operation and management of its plant, and the events that transpired before it took over from Ridge Tool Com- pany, hereinafter referred to as Ridge Tool, on September 27, 1947 , the under- signed is convinced that a brief resume of the events should be set forth. Otherwise it would be difficult to understand the issues involved herein. In February 1947, A. L. Schwab Inc., hereinafter referred to as Schwab, started the plant and installed the machinery and equipment therein to operate it as a foundry specializing in small castings . The castings from the foundry were then to be annealed in electrically operated furnaces. The plant went into pro- duction about a month after Schwab started operations . At that time only a small force was required to operate the plant. Schwab operated the plant for a short time and then turned it over to Ridge Tool , who operated it until September 27, 1947, at which time the plant was turned over to the Respondent to operate in the manner described above. At the time Respondent took over the plant there were approximately three departments in operation : ( 1) the foundry where the castings were molded and poured ; (2) the annealing room where two electrically controlled furnaces for that purpose were in operation ; and (3 ) the grinding room where the castings were roughed. No machining or polishing was done in the plant. These opera- tions were done at Ridge Tool . The plant at the time operated on two shifts. A short time later a third shift was added , and approximately 81 persons were employed at the time the events herein occurred. 838914-49-vol. 82-10 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. The dssorinvinatory discharge of John 'Whet Icy 1. Events leading up to the discharge John Wherley was one of the first men hired by Schwab when he started the plant in February 1947. At the time he was hired, the plant was not yet in operation, and he along with the other employees assisted in the installation of the machinery and worked at whatever job was assigned to him. About a month after Wherley was hired, the plant started operations on a small scale and he was given the job of annealing furnace operator. His duties required him to operate two furnaces. When they were not in operation, he was required to work at other jobs in the plant, such as a helper about the boilers, knock off screws, clean castings, and the like. In addition he was required at times to assist the molders in pouring ladles of molten metal from the furnaces in the foundry. At the time lie took over the operation of the annealing furnaces he had had little experience in their operation. The furnaces are electrically operated, that is the temperature is controlled by electric devices. The furnaces are fired by gas, which is ignited by means of spark plugs which are electrically controlled. The furnaces operate at various temperatures, depending upon the castings that they are charged with. The length of time a charge had to stay in a furnace ranges from approximately 2 hours to as high as 45 hours. After the heating cycle is completed, the furnace is permitted to gradually cool off, the head is lifted, and the castings removed. All these operations as well as the charging of the furnaces is the responsibility of the furnace operator. It is his duty to watch the temperatures, and when a cycle is completed, he must be on hand to see that the proper changes in the operation of the furnace are made, otherwise a whole charge of castings might be lost. During the course of Wherley's employment with the Respondent and its predecessors he never spoiled a charge. The furnaces could be operated either automatically or man- ually. It was the Respondent's rule that the furnaces were to be operated automatically and not manually, except in cases of extreme emergency. The record shows that Wherley operated one of the furnaces manually on at least one occasion. This incident occurred while he was alone on the night shift. On that particular night there was an electrical storm, and the furnaces are so designed that under such atmospheric conditions they shut themselves off auto- matically. Following the storm Wherley started and operated the furnaces manually and completed the cycle. Wherley testified that he was cautioned about operating the machine manually by plant Superintendent Pollick following the storm incident referred to above, but that when he told Pollick what had happened Pollick said "0. K., fine piece of work." Wherley further testified that this was the only time that he was ever cautioned about operating the fur- naces manually. On the other hand, Pollick testified that he repeatedly warned Wherley not to operate the furnaces manually and that this was one of his greatest faults ; however, he did not deny Wherley's testimony regarding the storm incident. For reasons set forth hereinafter the undersigned does not credit Pollick's testimony regarding Wherley's operation of the furnaces. Wherley impressed the undersigned as a reliable and credible witness. Conse- quently, he credits his testimony in this regard. On another occasion Wherley had difficulty with the furnace and was forced to shut it down. He was alone in the plant at the time and had been operating the furnaces for only a week or so. He knew that one of the electric control panels was out of order but did not know how to switch over to an auxiliary panel aft^tR'the furnace back in operation. In this dilemma he called Pollick at M 'home, and told him I. F. SALES COMPANY 147 of his difficulty. Pollick came down to the plant and corrected the situation. Wherley was not reprimanded for this incident. Moreover, the record is clear that the incident occurred several months before the Respondent took over the management of the plant. Hence, the undersigned finds that the incident has no probative value whatsoever in resolving the issues involved in the instant case, and he will disregard it in making his ultimate findings herein. As noted above the Respondent took over the management and operation of the plant on September 27, 1947. On this date a new pay period for the em- ployees started and the next pay due them would be on October 10, 1947. On the latter date Ingwer, the Respondent's president, assembled the employees in the plant and explained to them why they were being paid with I. F. Sales Company checks instead of Ridge Tool checks. He also explained to them the contractual relationship between the Respondent and Ridge Tool. In the course of his talk with the employees he told them that all policies, rules and regulations, and benefits that had been in effect while they were employees of Ridge Tool would continue in full force and effect under the Respondent's man- agement. The rules referred to were set forth in a pamphlet styled "Your job with Ridge Tool Company," and had been given to each employee at the time he was hired or at the time Ridge Tool took over the plant from Schwab. One of the rules set forth therein and the only one pertinent to the issues herein was styled "Solicitations." For convenience the rule is set forth herein below : The Ridge Tool Company will not solicit from its employees for any pur- pose believing that it is the right and privilege of their employee to do with his or her earnings as they see fit. Neither will the Company permit an employee or group of employees to solicit during working hours for any purpose among the employees on the Company premises. Shortly after the Respondent took over the management and operation of the plant the Union started its organizational drive among its employees. There- after there was considerable talk among the employees on each of the shifts concerning the Union. That the talk was general is well established in the record by the testimony of witnesses called by both the General Counsel and the Respondent. As in all small plants rumors of the organizational drive eventually reached management. Subsequently Ingwer called the employees into the office and discussed the situation with them. Wherley's testimony in this regard stands uncontradicted in the record ; it was as follows : A. Well, Mr. Ingwer said there was some local disunity in the plant and he wanted to get at the bottom of the thing. He asked any of us if we were dissatisfied to come clear and get off our chests. Then he called on-Well, several fellows volunteered this or that, I don't remember exactly what they said. But he made the statement if any of us belonged to the union, to forget about it and tear the card up. He said there wouldn't be any hard feelings and he asked where he had failed and he said, "Why can't I do anything that any union could, and better?" Well, then, they asked us for just a round about discussion of any per- sonal grievances and I said I didn't understand why the superintendent of operations couldn't come to the men with an argument before he would run in the office. He had a habit of running in the office and making the report instead of going to the men first and giving the man a chance to explain himself. That was the only thing I believe that I said at that meeting. Others asked him many questions. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That the Respondent was gravely concerned over the "dissatisfaction of the employees and in particular the organizational efforts of the Union is further buttressed by the undenied and uncontradicted testimony of LeRoy Wherley,' then the Respondent's office manager. His testimony in this regard was as follows : Q. Did Mr. Ingwer ever speak to you about the subject of union activity in the plant? A. Yes, he did speak to me about that. Q. About when was that? A. Well, that would be around the last of October, or the first part of November. He asked me-I was pretty familiar with the-Of course, I had hired many of the men from the initial start of the operation and, of course, being a local boy, I knew them from the time they were small and had grown up in the plant there with them and he asked me if I would go out in the plant and spread good will among the employees. He said there was a feeling out there he didn't like and that he would like to have me go out and talk to them and see what was the matter and tell them that I. F. Sales Company meant nothing but good for the employees and see if I could find out who the fellows were who were dissatisfied and were instigat- ing this organizational movement. The most active protagonists for the Union in the Respondent's plant where Wherley, William Herron, and Raymond Bigler. They discussed the Union with various employees during working hours and at lunch time. Wherley was very much interested in unions having been active in the union that represented the employees at the Belmont Stamping and Enameling Company, a local con- cern, where he worked before he went with Schwab. While at Belmont he was recording secretary of the local for 2 years and on the grievance committee for 1 year. One of his coworkers while at Belmont was Superintendent Pollick. At about the time the Union drive started Pollick asked Wherley if he still felt the same about unions as he did at Belmont. He replied that he did as long as they were fair and just. 2. The discharge It is in the light of the above background that the discharge of John Wherley must be considered. On the night of November 14, 1947, Wherley was working on the third shift, 12 midnight to 8 a. in. On this particular night Wherley in addition to attend- ing his duties as furnace operator was cleaning castings. This was his usual routine while the charge in the furnace is being annealed. It was his duty to watch the furnace and be on the job when the cycle was completed, but in the interim he was expected to do other work, such as cleaning and inspecting cast- ings, and operating the tumbling mill. It was the custom for the furnace operators, with the approval of management to eat in the lunchroom with the other employees at all times providing that none of the furnaces were about to complete their cycle, or had completed it and it was necessay to take care of the attendant duties required at such a time and thus not hazard the castings in the charge. On such occasions the furnace operators were expected to stay at their furnace and eat their lunch as best they could. The same custom or prac- 1 LeRoy Wherley is a brother of John Wherley. He was first hired by Schwab as office manager, and continued in that capacity, with Ridge Tool, and the Respondent until November 17, 1947 when he resigned to accept other employment. I. F. SALES COMPANY 149 tice applied to the molders, when a batch of molten metal was ready to be poured. Obviously such operations cannot await the time required for the employees concerned to eat their lunch. In such a situation the metal must be poured when ready, just as the annealing furnaces must be attended to when a cycle is completed. Inasmuch as Wherley was engaged in cleaning castings at lunch time, it is reasonable to-infer and the undersigned finds that the furnaces were on a long cycle and it was permissible for him to go to the lunchroom with the other employees, which he did. Several employees on the third shift were in the lunchroom with Wherley on the night of November 14, 1947. Among them were William Herron, Raymond Bigler, Dean Spring and David Pollick. While the employees were eating their lunch William Herron handed a union application for membership card to Wherley and requested him to "pass this over to Dave Pollick e to read over." Wherley did so, making no comment at the time. While Pollick was reading the card Foreman Leland Mast walked in and Pollick handed the card to him. Nothing was said by either at the time. Wherley got up and went back to his place of work. About 20 minutes later David Pollick came to him and handed him the card, and stated "he wasn't interested at the present time." In the interim Mast went to Superintendent Pollick, and informed him of the card incident. Wherley completed his work, and went to the clock to ring out. At that time Superintendent Pollick came up to him and accused him of being behind the "union organization there," and of passing out union application of membership cards to the employees. Wherley denied Pollick's accusation. Present with Wherley at the time the conversation with Pollick took place were, Dean Spring, Raymond Bigler, and William Herron. Wherley's testimony in this regard was as follows : Q. ,Did Superintendent Pollick speak to you on that day? A. Yes, that morning. He came in and he tackled me just about the time I was ready to ring out and told me that I was behind the union organiza- tion there. I told him that I was not, but that I was very much in favor of it, the way that things were going there at that time. I said, "I think ws need it here," and I said, "You're the fellow that is bringing it on, in fact." Q. Was anything else said? A. Well, we argued there for a few minutes. He told me, that is, as good as said that I was- Trial Examiner SHAW. Well, now, what did he say? We don't want to hear what he "as good as said ;" what did he say? A. (Continued) Oh, excuse me. He told me that I was in the wrong, that I didn't see things right. He told me that. I told him that I thought he was wrong. I said, "A lot of fellows are being discontented here," I said, "Have no seniority rights. You pick fellows up off of the street and promote them ahead of other fellows that have been here a good while, fellows that want to-" One fellow was injured and he told me that he tried to apply in the office for benefits under the Ohio Industrial Act for rupture and the Company wouldn't let him. Trial Examiner SHAW. Were you saying this to Pollick? Is that part of the conversation? The WITNESS. Yes, this is part of the conversation to Pollick. A. (Continued.) "He wouldn't let him sign his papers to get his compen- sation" and I asked him why he wasn't allowed to sign the paper when e David Pollick is a brother of Superintendent Pollick. The Respondent did not call him as a witness and made no showing that he was not available as such. 838914-50-vol. 82-11 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they had the sign up there that they belonged to the Ohio State Compensa- tion. Then I told him that there were new jobs up, they should be posted, so that the older fellows could bid on them. I told him how the majority of the fellows felt at that time. Well, Mr. Pollick says, "If you feel that way," he says, "You bring the representatives, your representatives or committeemen and meet with us Monday morning." I said, "All right," and I left it as such. Q. (By Mr. DONOVAN) Was anything said in that conversation about a union meeting? A. Yes, there was at that time. We posted notice in the paper of a union meeting, I hadn't, but Mr. Langley had, of the International Molders. Q. In what paper? A. The Daily Times. Q. Is that the local newspaper? A. That is the local paper in New Philadelphia. Q. All right, go ahead. A. And I told him that we were having a meeting there and he requested permission to be there. Then I told him that's up to him, if he wants to come to the union meeting, he can. If he don't want to, he can stay at home. I said, "That's your privilege." I said, "I don't have anything to say about it. It's up to you." Pollick testified in regard to the above incident under peculiar circumstances. When he was first on the stand as a witness he testified regarding various derelictions of duty by Wherley during the course of his employment with the Respondent but was not queried by counsel regarding this incident. After he had been released as a witness by counsel for the respondent, but prior to cross- examination, and after a discussion off the record relative to other matters, he was recalled by the Respondent. At this time he testified as follows concern- ing the above incident. Cu$TIs POLLICK, a witness called by and on behalf of the Respondent, having been previously duly sworn, was examined and testified further as follows : Direct examination by Mr. R. F. VANDEMARK (continued) Q Do you recall, Mr. Pollick, a Friday morning preceding Mr. Wherley's discharge? A. I do, most vividly. Q. And how do you recall that morning? A. On this particular morning, the night foreman informed me that this soliciting that is in question was going on ; and I approached Mr. Wherley about it. Mr. Wherley- Mr. DONOVAN. Excuse me, may we have the name of the night foreman? The WITNESS. The night foreman at that time? Mr. DONOVAN. Yes, the man who spoke to you. The WITNESS. Let's see. Trial Examiner SHAW. Identify him, in other words. Mr. DONOVAN. Was it Mr. Mast? The WITNESS. Mr. Mast is right, that's right. We were on three shifts at that time. Mr. Mast was the foreman at that time. (By Mr. R. F. VANDEMARK) : Q. All right, proceed. I. F. SALES COMPANY 151 A. And in the course of the conversation that went on, there were several others of the workmen there listening in on the conversation and as super- intendent, I was called everything in the book. Do I have to be specific as to what was said? Q. By who? A. By Mr. Wherley. Q. What did he say to you? A. Well, he told me that I was the cause of all of the trouble in the plant. He called me a son-of-a-bitch. He called me down for making a statement to his brother, Leroy, in the office, which was done in jesting and was taken seriously. He insulted me to the extent that I could do nothing else but recommend his discharge. That's all there was to it. Q. And was this in the presence of other employees that this took place? A. That is correct, there were three other men. Q. And who were they? A. Those men were Mr. Spring, Mr. Bigler and Mr. Herron, that's right. Q. Was there anything else said? A. Yes, there was. Q. What was it? A. They told me quite definitely that they were going to have a meeting, that they were going to have a union in the place ; and I believe I questioned them as to whether I would be permitted in the meeting and they said, "Sure," invited me up to the meeting. Q. Who invited you up to the meeting? A. I believe it was all four of the men agreed that I could come. Q. Yes. All right'? A. And I said that I'd be there, told them that I would be there, which I was. Q. Yes. Was there anything else said that morning? A. I think nothing else. Q. And then following that conversation that morning? A. Following that, I went immediately to the office and told the management. Q. What did you do? A. I went right then and there. I was pretty hot, too. I went right to the office and told them what had went on. Q. And did you make a recommendation? A. I certainly did. Q. What did you recommend to them? A. I told them that there was only one thing to do with that fellow and that either he was going to work there or I was not going to work there, and not both of us. Q. Is there anything else that occurred there that morning that you haven't told about? A. Not that I can think of, sir. Wherley emphatically denied that he called Pollick a vile name. William Herron who was also present at the time the conversation occurred also denied that any such language was used. Both Wherley and Herron admitted that the conversation was somewhat heated but that no such scurrilous and Insulting epithets were spoken, said to or directed at any of the individuals participating in the conversation. They both admitted that there was some "cussing" but that 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it consisted of such expressions as "Hell , we want seniority rights." As found above Wherley impressed the undersigned as an honest and reliable witness. His demeanor on the stand was excellent. He was courteous both on direct and cross-examination and did not impress the undersigned as one who would use such language regardless of the provocation. His own testimony on rebuttal sums up the impression he made upon the undersigned in this regard ; "I can truthfully say I am not the sort of fellow that would cuss a man out." Pollick on the other hand did not so impress the undersigned, but on the contrary im- pressed him as a garrulous and untruthful witness. Accordingly the undersigned credits the testimony of Wherley and Herron in this regard and discredits that of Pollick, and finds that Wherley's version of what transpired is a true account thereof. The finding of the undersigned in this regard is buttressed by the fact that neither Ingwer nor Frates,e testified regarding this incident. Again, as will be set forth hereinafter in greater detail was this incident ever cited by the Respondent to any person or governmental agency as a cause for Wherley's discharge. Moreover, neither in its original nor amended answer did it set forth the incident as a cause of discharge. Yet in both, the Respondent set forth six separate and distinct affirmative defenses to establish its defense that Wher- ley was discharged for cause. It is incredible that the Respondent or its counsel would have intentionally overlooked such an important incident as a cause for discharge, if such in fact had occurred 30 The union meeting referred to above was held as scheduled on Sunday after- noon, November 16, 1947. Several employees of the Respondent were present, including Wherley. Also present was Superintendent Pollick, and his brother David Pollick. Carl Hubbell, the union organizer in charge of the organizational drive among the Respondent's employees, presided at the meeting. At the opening of the meeting Hubbell stated to those present that he had been in- formed that there was a representative of management present, and asked Wherley who was seated nearby to identify him. Wherley then identified Super- intendent Pollick as the individual referred to. Hubbell explained to Pollick the Union's policy regarding the presence of management representatives at union meetings, and asked him to state his reasons for attending the meeting. Pollick said that he had no reason "except to listen and see what was going on." Hubbell in reply stated that the Union had no desire to "spy" on employers meetings and saw no reason why a member of management should be permitted to do so at a union meeting. Pollick replied "if that's the way you feel" and got up and walked out. The next morning, Monday November 17, 1947, Wherley reported to work as usual, and found that his card had been removed from the rack at the time clock. At that time Superintendent Pollick came to him and said "You are wanted in the office." Wherley sensed that something was up in view of the incidents that occurred on the previous Friday, November 14, 1947. He immediately went out into the plant and contacted Bigler, Herron, and Spring who constituted a com- mittee set up by the Union to handle any grievances that might arise in the plant with management. Wherley told them that his card had been pulled and that he had been instructed to go to the office. He also told them of his suspicion 9 Frates was called by the General Counsel as a witness at the opening of the hearing for the purpose of eliciting certain facts relative to interstate commerce. The Respondent did not choose to call him as a witness in its defense in chief. However the parties stipulated that if he were called for further examination he would testify substantially the same as C. H. Ingwer. ao See footnote 2, supra. I. F. SALES COMPANY 153 that something was wrong and asked them to accompany him to the office. This they did. When they went into the office Ingwer told Wherley he wished to see him alone, and no one else. Wherley then told the committee to leave the room, which they did. Ingwer then told Wherley that he was discharged for solicita- tion during the lunch hour, and recited to him the incident of his passing the union card to David Pollick on the night of November 14, 1947, as the reason for the Respondent's action. Ingwer also told Wherley that he would have been dis- charged, even though the subject matter of the solicitation was the Red Cross, since solicitation of any kind for any purpose on company time was violative of the Respondent's rules. In support of his statement to Wherley concerning the reason for the discharge, Ingwer showed Wherley two signed statements in this regard executed by David Pollick and Foreman Leland Mast. He then asked Wherley to sign certain papers which he refused to do." Wherley also refused to accept his pay check for the money due him up to the date of his discharge. Following Ingwer's interview with Wherley, the committee was called in, and Ingwer told them that Wherley was being discharged for violation of the no- solicitations rule. He gave them no other reason. Shortly after Wherley's discharge, Carl Hubbell, the Union's organizer, called on Ingwer and discussed the matter. Ingwer told him that the sole reason for the discharge was Wherley's violation of the no-solicitation rule. Hubbell's testimony in this regard stands undenied in the record, and is credited by the undersigned. Other Contentions of the Respondent In its original and amended answer the Respondent sets forth various other reasons for Wherley's discharge, in addition to his violation of the no -solicita- tion rule. Among the reasons advanced by the Respondent in support of its contention that Wherley was discharged for cause, was that he was inefficient in his work ; that he did not have the ability to perform the work assigned him ; and that he was not qualified to perform the work. In support of its contention in this regard they offered the testimony of Superintendent Pollack, and Ingwer. An examination of Pollick's testimony reveals that the derelictions referred to con- sisted of the incidents surrounding the operation of the furnaces, which the undersigned has disposed of herein above, and found to be of no probative value whatsoever due to their remoteness in time and his finding that Pollick was not a credible witness. The Respondent also contends that a further justification for Wherley's dis- charge was that he on numerous occasions during working hours conferred with and solicited other employees while at work, thus disturbing and annoying them in the progress of their work . In support of its contention in this regard they offered the testimony of Williard Canfield, John A. Shott, Joseph Carl Zion, and Richard Saltz, all coworkers of Wherley. An examination of the testimony of each shows that in substance all testified that Wherley, as well as numerous other employees consistently discussed the Union during its organization cam- paign, and that such conversations were general throughout the plant. More- over all testified that on occasions they had discussed the Union with Wherley, sometimes at his place of work and at other times in various parts of the plant. Wherley did not deny their testimony in this regard. The significance of their u The record is not clear as to just what these documents were, but there is sufficient testimony in the record to indicate that they pertain to Wherley's discharge and were the usual forms required by the Ohio Unemployment Compensation Commission. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony however lies not in the activities of Wherely, and other employees in the conduct described above, but in that each testified that they never reported either Wherley's conduct or that of other employes to any member of manage- ment during the course of Wherley's employment, until a short time before the hearing in the instant case when they were interviewed by representatives of the Respondent, and interrogated by its counsel. The attitude of each of the wit- nesses in this regard is best expressed by the witness Canfield who testified with- out contradiction as follows : Q. Did you run into the office or to the foreman or superintendent and report that Wherley had come over to you? A. No, sir, I did not. Q. About how many days ago was it that the Company representatives asked you about Wherley's activity? A. I don't remember how many days. Q. Well, approximately? A. Approximately, oh, a couple of weeks, ten days, I don't remember. Q. I see. And previous to that, you hadn't told them the story that you are now telling on the witness stand? A. I never squealed on anybody. In such a state of the record it is inconceivable that the Respondent could advance such conduct on the part of Wherley as a justification and/or motive for his discharge, when it did not learn of such alleged conduct until approxi- mately 6 months after his discharge. Under the circumstances the undersigned is convinced and finds that the reasons described above by the Respondent as a motivating force in their discharge of Wherley are mere pretext, in fact an afterthought ; and hence he rejects them as being without merit. The Respondent further contends that an additional justification for Wher- ley's discharge was that he was employed as a furnace operator; that his job as such required him to be on the job for a full 8-hour period and not to leave his furnace at any time during said 8-hour period and that he was to eat his lunch at the furnace so that he could keep watch of the furnace and at all times have the same under proper control, and that the Respondent paid him for a full 8-hour period without any time out for his lunch ; that on this particular day he did leave his furnace and place of employment with no one in charge of said furnace. Further that he was familiar with the rule and regulation of said Employer that he was not to be away from his place of employment and that he willfully and knowingly violated said rule and regulation not only upon this occasion but upon several previous occasions. In support of this contention the Respondent offered the testimony of its President, Carl H. Ingwer, who testified on direct examination as follows in this regard : Q. And your policy with respect to working hours is what, Mr. Ingwer? A. The midnight shift, from 12 midnight, to 8 a. in. Q. And for how many hours do you pay? A. The full eight hours. Q. Does the employee have any specified time off for a lunch period? A. No specified time. Q. And why is that? A. Due to the type of operation of that plant, we have asked our em- ployees to eat at a time when it won't interfere with their work. To break that down, there is a pouring operation. When the metal is hot, it has I. F. SALES COMPANY 155 to be poured. We can't tell a man to eat at a certain time if that metal is coming off. Q. And do you pay him for the time that he is actually eating? A. Yes, sir. Q. Now, prior to the time that Wherley was discharged, was there any- thing said to Wherley about the time that he should eat? A. I don't believe so. Q. Was he at liberty to go to lunch at any time that he saw fit if it didn't interfere with his work? A. Yes, sir. When Ingwer's testimony is considered in the light of the undersigned's findings made herein above regarding the custom and practice of the Respond- ent's furnace operations, and Wherley's activities on the night of his alleged violation of the no-solicitation rule, the undersigned is convinced and finds that the above contention of the Respondent fails for lack of proof, and conse- quently is rejected as being without merit. Concluding findings as to the discharge of John Wherley As indicated above the Respondent alleged in both its answer and amended answer numerous affirmative defenses in justification of its discharge of Wherley. The undersigned has considered all of them except that of Wherley's violation of its no-solicitation rule, and has found they are without merit. Thus the ques- tion is posed: Was Respondent's enforcement of its no-solicitation rule, under the circumstances as disclosed by the record, in its discharge of Wherley legal or illegal. If illegal then what was the true motive for his discharge? The record is clear that the Respondent had in effect at the time the events herein occurred a rule against solicitation of any kind for any purpose "on the company's premises." The record is also clear that Wherley was aware of the rule. The circumstances under which Wherley allegedly violated the rule have been set forth hereinabove. The undisputed facts surrounding the incident are as follows : On the night of November 14, 1947, Wherley along with several other employees was eating his lunch in the lunchroom. Herron, a fellow employee, asked Wherley to pass a union application card to David Pollick, an employee of the Respondent. Wherley took the card from Herron and passed it to Pollick without comment. Pollick accepted the card. At this moment Foreman Mast appeared upon the scene and Pollick handed him the card. Wherley left and returned to his working place. At the end of the shift he was contacted by Superintendent Pollick regarding the incident, and was accused by him of being the instigator of the Union's organizational drive. Wherley denied the accusation. A heated argument followed. On the following Monday, November 17, 1947, Wherley was discharged by President Ingwer, and was told it was because he violated the no-solicitation rule. Wherley demurred and told Ingwer that if passing a union card was solicitation, then the rule was not applicable to him because the incident took place during the lunch period which is an employee's own time. The Respondent contends that since they pay for a full 8-hour day, the lunch period is company time, and that the no-solicitation rule is applicable thereto, and hence they were justified in discharging Wherley for violating the rule. The General Counsel in his brief contends that the application of the no- solicitation rule to Wherley by the Respondent as a justification for his discharge under the above set of facts was illegal, in view of numerous Board and Court 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Decisions in analogous situations and cites numerous cases in support of his position" The promulgation and application of the no-solicitation rule has long been a troublesome one for the Board and the courts. Over the years however they have established certain definite rules in this regard and have laid down fundamental principles that are applicable in all cases involving this issue. An examination of the cases shows that the courts have laid down two basic requirements to wit ; (1) that the rule "is promulgated in good faith . . . and is not merely a device to obstruct or impede self-organization" and (2) that it bears some reasonable relations to" the efficient operation of the plant or business." Further examina- tion of the cases clearly indicates that the rule as applied to working time is not illegal, where its promulgation was for the purpose of maintaining efficient operations of the employers business, and not to obstruct the rights of em- ployees in their concerted activities as protected by the Act. Insofar as the prom- ulgation of the rule by the Respondent herein is concerned the undersigned is convinced and finds that it was done in good faith. The record clearly shows that it was in effect prior to the start of the Union's organizational drive, and in fact had been carried over from the Respondent's predecessor, Ridge Tool. The key to the legality of the rule, in the considered opinion of the undersigned, hinges upon its application to non-working time, and if so applied does it bear some reasonable relation to the efficient operation of the employer's business.14 The record in the instant case clearly shows, by the testimony of the Respondent's president that there was no restriction on the employees assembling in the lunch- room to eat and talk among themselves, as long as it did not interfere with the pouring of a ladle of molten metal, or the completion of a cycle at the annealing furnaces, or some other vital operation of the Respondent's business." The Respondent however contends that since the employees are paid straight time the rule is applicable to the time they are absent from their working places, during the lunch period. The undersigned is convinced and finds that the short period of time granted by the Respondent to its employees to eat lunch in the lunchroom is "non-working" time and as such the employees own, regardless of the fact that the employees are paid during this period. The Board and the courts in considering the validity of rules barring solicitation on company property during lunch periods and the like consistently speak in terms of "working time" without any distinction being made between paid and non-paid time.'6 Again the Board and the courts in arriving at the validity of the rule weigh the reasonableness thereof in the light of the circumstances sur- rounding the promulgation or application of the rule. As the Board so aptly said in the Republic Aviation Corporation case : "' 37 Republio Aviation Corp. v. N. L. R. B.; N. L. R. B. v. LeTourneau Company, 324 U. S. 793, 805. 19 N. L. R. B. v. Denver Tent i Awning Co., 138 F. (2d) 410, 411 (C. C. A. 1). 14 N. L. R. B. v. Cities Service Oil Co., 122 F. 2d 149 ; Republic Aviation Corp. V. N. L. R. B.; N. L. R. B. v. LeTourneau Company, 324 U. S. 793, 805. "The record is clear that Wherley as well as the other employees understood this restric- tion on their use of the lunchroom and consistently abided by it. There being no evidence that either Wherley or any other employees had ever absented himself from his working place while such vital operations were in progress or due to occur. "Matter of Denver Tent and Awning Co., 47 N. L. R. B. 586, 588; 138 F. (2d) 410, 411 (C. C. A. 10) ; Matter of United States Cartridge Co., 47 N. L. R. B. 896; Matter of Carter Carburetor Corporation, 48 N. L. R. B. 354, 355; Matter of Peyton Parking Company, 49 N. L. R. B. 828, 843-844; Republic Aviation Corporation v. N. L. R. B.; N. L. R. B. v. Le- Tourneau Company, 324 U. S. 793, 805. 14 See supra for citation. I. F. SALES COMPANY 157 ... that, in the absence of special circumstances, a rule prohibiting union activity on company property outside of working time constitutes an un- reasonable impediment to self-organization, and that discharges for violation thereof are discriminatory. While it is true that the Respondent's rule applied to all kinds of solicitation, it is obvious that its extension to non-working time is an unreasonable applica- tion of the rule, since, as interpreted by the Respondent it of necessity interfered with the employees rights of self-organization as protected by the Act. It places an unnatural restraint upon the employees in that it hinders them from discuss- ing the benefits of self-organization among themselves and prohibits them from inducing and persuading others to join them in the exercise of the right guaranteed them in Section 7 of the Act. In view of the foregoing and upon the record as a whole the undersigned is convinced and finds that the application by the Respondent of its no-solicitation rule to its employees non-working time during the lunch period was an unrea- sonable application of the rule, and consequently violative of Section 8 (a) (1) of the Act. Moreover, under the doctrine of Republic Aviation, any discharges that flow from the illegal application of such a rule to employees who violate it are illegal and likewise violative of Section 8 (a) (3) of the Act. , Hence it follows that since John Wherley was discharged for violation of the Respond- ent's no-solicitation rule, he was discriminatorily discharged by the Respondent for his membership in and activities on behalf of the Union in violation of Section 8 (a) (3) of the Act. The record is clear that the Respondent was gravely concerned over the Union's organizational drive among its employees. This is evidenced by Ingwer's speech to the employees, and Pollick's statements to Wherley on the morning following the card-passing incident in the lunchroom on the night of November 14, 1948. The undersigned is convinced and finds that Wherley by passing the union card to David Pollick ; by his past union activities at Belmont Stamping Company ; by his admissions and statements to Pollick on the morning of November 14, 1947; and by his identification of Superintendent Pollick as a member of management at the union meeting on November 16, 1947, so clearly identified and thrust himself out as the leading union protagonist in the Respond- ent's plant, that the no-solicitation rule was applied to him not only because he technically violated it but because by his discharge the Respondent rid itself of the employee who, in its opinion, was the most prominent union protagonist in its plant. The undersigned's finding in this regard is buttressed by the fact that the Respondent was not satisfied to stand on Wherley's violation of the no- solicitation rule alone as a justification for his discharge but advanced numerous other reasons in its original and amended answer and at the hearing in justifica- tion thereof, all of which contentions the undersigned has found hereinabove were without merit. Upon the entire record in the case the undersigned concludes and finds that the Respondent discharged John Wherley and thereafter refused to reinstate him for the reason that he joined the Union and engaged in concerted activities with other employees of the Respondent for the purpose of collective bargaining or other mutual aid or protection, and that the Respondent thereby discrimi- nated against him in regard to his hire and tenure of employment, discouraged membership in the Union, and interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, it will be recommended that it cease and desist therefrom , and take certain affirmative action designed to effectuate the policies of the Act. Having found discrimination in regard to the discharge of John Wherley it will be recommended that Respondent offer him reinstatement to his former or substantially equivalent position 1e without prejudice to his seniority or other rights and privileges and that Respondent make him whole for any loss of pay he may have suffered by reason of such discrimination , by payment to him of a sum of money equal to that which he normally would have earned as wages' from the date of his discriminatory discharge to the date of the offer of rein- statement , less his net earnings 19 during such periods. Upon the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Molders and Foundry Workers Union of North America, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of John Wherley, thereby discouraging membership in the Union, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and 8 (a) (1) of the Act!* 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that I. F. Sales Company of Elyria, Ohio, and New Philadel- phia, Ohio, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : Discouraging membership in International Molders and Foundry Workers Union of North America (A. F. L.), or any other labor organization of its em- ployees, by discharging or in any other manner discriminating in regard to the hire and tenure of employment of any of its employees. v See Matter of The Chase National Bank of New York, San Juan, Puerto Rico Branch, 65 N. L. R. B. 827. " See Matter of Crossett Lumber Company, 8 N. L. R. B. 440 , 492-498. 80 The complaint alleges no independent violation of Section 8 (a) (1) of the Act. The above conclusion is predicated on the theory that by discriminatorily discharging John Wherley such conduct is also violative of Section 8 (a) (1) of the Act. I. F. SALES COMPANY 159 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Offer to John Wherley immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges ; (b) Make whole John Wherley 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 determined in the manner set forth in the section entitled, "The remedy," above ; (c) Post immediately at its plant in New Philadelphia, Ohio copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Eighth Region, after being signed by the Respondent's representative, shall be posted immediately by the Respond- ent upon receipt thereof and maintained by it for at least 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Eighth Region in writing within ten (10 ) days from the date of this Intermediate Report what steps the Re- spondent has taken to comply herewith. It is further recommended that, unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the Respondent notifies said Regional Director in writing that it will comply with the foregoing recommen- dations, the National Labor Relations Board issue an order requiring the Re- spondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended, August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report and Recommended Order 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 six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of except- tions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 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. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 17th day of September 1948. JAMES A. SHAW, Trial Examiner. APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in INTERNATIONAL MOLDERS AND FOUNDARY WORKERS UNION OF NORTH AMERICA, (A. F. L.) or any other labor organization of our employees, by discharging or in any manner discriminat- ing in regard to the hire or tenure of employment of any of our employees. WE WILL OFFER to John Wherley full and immediate reinstatement to his former or a substantially equivalent position, without prejudice to any seniority or other rights or privileges previously enjoyed, and make John Wberley whole for any loss of pay suffered as a result of the discrimination. I. F. SALES COMPANY, Employer. Dated ------------------------ By ------------------------------------ (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.