Republic Aviation Corp.

In the Matter of REPUBLIC AVIATION CORPORATION and UNITED AUTO- MOBILE, AIRCRAFT & AGRICULTURAL AMERICA (UAW-CIO) IMPLEMENT WORKERS OF Case No. 14-C-860.-Decided April 7,1945 DECISION AND ORDER On September 28, 1944, the Trial Examiner 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 that it had not engaged in certain unfair labor practices, and recommending that it cease and desist from the unfair labor practices found and take certain affirmative action, as set out in the copy of the Intermediate Report attached hereto, and that the complaint be dis- missed as to the remaining allegations. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. Oral argument, in which the respondent and the Union participated, was held before the Board in Washington, D. C., on February 1, 1945. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the respondent's brief and exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions, additions, and qualifications noted below : 1. The Trial Examiner found that, in selecting Oscar Finch for discharge, the respondent was motivated by his membership in and activities on behalf of the Union' We concur in this finding for the reasons set forth in the Intermediate Report. Moreover we consider it significant that, while "unsatisfactory work" was given as the reason for Finch's discharge in the respondent's answer to the Board's ' The Intermediate Report makes reference to a conversation between Ellery Finch and Vincent Bradley , supervisor of the power plant assembly line, during which Bradley re. marked that the respondent did not want a union. Inadvertently , the conversation is reported as having occurred in August 1943 The record shows, and we find, that the conversation took place in August 1942. 61 N. L. R. B., No. 54. 639678-45-vol. 61-27 397 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint and on the dismissal slip, at the hearing before the Trial Examiner, the respondent advanced five reasons for his discharge : (1) that he had wandered from his job and had been found talking to a female timekeeper on the opposite side of the building; (2) that on one occasion, when there had been a shortage of parts, he had refused to go home early; (3) that he had damaged certain parts because of the rapidity with which he worked; (4) that he had engaged in a number of fights with fellow employees; and (5) that he carried a chair around with him while at work. However, in its brief before the Board, the respondent states that the "principal" reasons for the discharge of Finch were, "the quarrelsome argumentative disposition and re- luctance to obey instructions." The other reasons are not even mentioned. The respondent excepts to the Trial Examiner's finding that it had laid off a disproportionately large number of union adherents from the engine stand section on July 30, 1943, since, it claims, only 2 out of 42 employees in the section had not signed union authorization cards. However, Ewers, secretary-treasurer of the Union, credibly testified that she had checked the names of the employees, who worked in the section on the date of the discharge of Finch, against the union records in her custody. Her check revealed that only 21 of the 42 employees in the section had signed authorization cards. Accordingly, we concur in the Trial Examiner's finding. To support its contention that Finch performed unsatisfactory work, the respondent claims that Finch sat on a chair while at work, in defiance of orders to the contrary, that this caused him to perform his work improperly, and that it set a bad example for the remainder of the employees on the assembly line. The respondent then argues that its conduct in offering Finch, 2 months prior to his discharge, a transfer to a job which did not require standing, negates the finding of a discriminatory discharge. Wo do not agree. If anything, the fact that the offer was rejected and that thereafter Finch nevertheless was permitted to continue at-his job for a period of 2 months indicates, as the Trial Examiner found, that either he did not habitually sit while at work, or that while seated he performed his work compe- tently.2 If this were not the case, then the respondent would have discharged' Finch when he refused its offer of a transfer. Moreover, the record does not show, as indeed the respondent admitted at the oral argument before the Board, that the employees had followed Finch's example of sitting while at work. 2 In excepting to the Trial Examiner's finding that Finch was a good worker, the re- spondent states that the Trial Examiner erred in referring to Finch as "overseer of the work of 2 girl employees," contending that it had no title such as "overseer." We interpret the word "overseer" in its literal sense of looking over someone's work. The respondent agrees that Finch did instruct new employees. REPUBLIC AVIATION CORPORATION 399 2. We find, as did the Trial Examiner, that the respondent selected Walter R. Hull for discharge because of his interest and activities in favor of the Union. In excepting to the Trial Examiner's rejection of its contention that Hull was selected for discharge because he was an inefficient employee, the respondent adduced evidence to show, among other things, that Hull made frequent visits to the hospital maintained in conjunction with the respondent's plant. Hull's hos- pital record shows 25 visits in 8 months, 2 of which were for the pur- pose of redressing previously sustained injuries. The respondent's medical director testified that the average number of hospital visits, based upon the entire plant perspnnel was about 2 per month. He also indicated that approximately three-fourths of all the visits were made by one-third of the plant population. However, he admitted that he could make no comparison of Hull's visits with those of other employees engaged in similar work. Upon this state of. the record, we are unable to find that Hull's hospital visits were excessive or indicative of inefficiency. The respondent also contends that the Trial Examiner erred in attaching significance to the fact that Hull had received two merit raises, the second only 2 months prior to his discharge. While it is true, as the respondent states in its brief, that everyone employed in the engine stand section for 3 months prior to the discharge of Hull received either a merit raise, a promotion increase, or an automatic increase, this does not indicate that the respondent pursued the general policy of giving merit raises to inefficient workers. Thus, Margaret Mattingly, who was properly discharged for unsatisfactory work, received two automatic increases but no merit raises. 3. We agree with the Trial Examiner's finding that Vella G. Ewers was discharged because of her membership in and her advocacy of the Union. The Trial Examiner found, contrary to the claim of the re- spondent, that Ewers was not excessively absent from her machine and that her alleged absences did not lead to a "bottleneck" in steel welding production on the day shift during the month of October 1943. We concur in this finding. The respondent excepts to the Trial Examiner's finding that steel spot welding production was being maintained at normal levels be- cause the night shift steel spot welder did not work exclusively on steel but also worked on aluminum spot welding. The respondent con- tends that there was an urgent need for both aluminum and steel welded parts during that time, and that no matter how badly steel production dropped, it was still necessary to maintain the flow of pro- duction on aluminum. While we agree that the fact that the night shift steel spot welder also worked on aluminum is not conclusive that steel production was being maintained at normal levels, the evidence, 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD set forth in the Intermediate Report, leads us to the conclusion that steel spot welding production did not decline. Moreover, Ewers testi- fied that she had requested permission to leave early during the entire second week in October. According to her, the request was granted by Supervisor Card only upon Ewers' assurance that her work was up to date and upon Foreman Wingfield's concurrence that she was not behind in her work. Wingfield could recall only one occasion when Ewers had permission to leave early. Card did not deny Ewers' testi- mony in this respect, nor did the respondent introduce into evidence any time records to show how many times Ewers had left early. Since we believe, as did the Trial Examiner, that Ewers is a credible witness, we credit her testimony and find that her work was up to date at least during the second week in October. Certain production records were introduced into evidence by the re- spondent for the purpose of showing that 18 percent of the total day shift steel spot welding production for the month of October 1943, was produced by someone other than Ewers. The Trial Examiner re- jected this interpretation and found that only 21/2 percent, or the equivalent of less than 15 minutes work per day, was performed by substitutes for Ewers. We have carefully reviewed this evidence and agree with the Trial Examiner's conclusions that the amount of sub- stitution was insignificant. Moreover, in view of the conflicting testi- mony with respect to the production records given by the respondent's expert witnesses, Foreman Wingfield and Engineer Callahan, we do not attach much weight to this evidence.3 4. We concur with the Trial Examiner's finding that by the state- ment of Foreman Spruell to employee Arbuthnot about a month before Finch's discharge that Finch was "messing around" with the Union too much for his own good; by the statements of Foreman Spruell to Finch on the day, after the latter's discharge to the effect that Finch was discharged for being too active in the Union, that the respondent does not want a union in the plant, and that it is "getting rid of" the active union men as fast as it can; and by the letter of September 27, 1943, the respondent interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act 4 The discriminatory discharges of Finch and Hull, about 2 months before the issuance of the letter, served as a warning to the ' In its brief before the Board, the respondent seeks to reopen the record for the purpose of adducing additional testimony , which it claims was not available at the hearing before the Trial Examiner, to support its interpretation of the production records Inasmuch as the respondent failed to set forth why the alleged new evidence was unavailable at the hearing, the motion to reopen the record is hereby denied. 4 Unlike the Trial Examiner , we do not include in this finding Spruell's statement to Hull in the Spring of 1943, to stop "fooling around with the Union or . . . get in trouble," since the statement antedated the period alleged in the Board 's complaint. We have, however, considered the statement as part of the background indicative of the respondent's opposition to the Union and concerted activities of its employees. REPUBLIC AVIATION CORPORATION 401 employees that the respondent was prepared to use its economic power to defeat the Union. In the face of these concrete examples of eco- nomic reprisals, the employees could properly regard as meaningless the statement in the letter that the respondent would respect the right of any employee to join or not to join a union. That the statement was in fact meaningless is demonstrated by the respondent's subsequent dis- criminatory discharge of Ewers. Under these circumstances the em- ployees could reasonably interpret the contents of the letter in the manner set forth in the Intermediate Report. So interpreted, the letter constitutes an inseparable part of the respondent's coercive course of conduct and transgressed upon the exercise by the employees of their right to choose a bargaining representative without restraint or coercion by the respondent. 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, Republic Aviation Corpora- tion, Evansville, Indiana, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Automobile, Aircraft & Agricultural Implement Workers of America (UAW-CIO), or any other labor organization, by discharging, laying off, or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment, 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 Automobile, Aircraft, Agricultural Implement Workers of America (UAW-CIO), or any other labor organization, to bargain collectively through representa- tives of their own choosing and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer Oscar Finch, Walter R. Hull, and Velia C. Ewers, immedi- ate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges ; (b) Make whole Oscar Finch, Walter R. Hull, and Velia C. Ewers for any loss of pay they have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD money equal to the amount which each normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during said period; (c) Post at its Indiana Division plant in Evansville, Indiana, copies of the notice attached hereto, marked "Appendix B." Copies of said notice to be furnished by the Regional Director of the Eleventh Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and main- tained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Eleventh Region in, writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent discriminated in regard to the hire and tenure of employment of Ira G. Hite, Harry H. Wallace, and Margaret L. Mattingly, within the meaning of Section 8 (3) of the Act and engaged in unfair labor practices by questioning its employees concerning their union activities and affiliations, be, and it hereby is, dismissed. Mrt. GERARD D. REILLY, concurring in part and dissenting in part : I am constrained to disagree with my colleagues' approval of the Trial Examiner's findings with respect to the letter of September 27, 1943, and the discharge of Hull. The September 27 letter, standing alone, was not proscribed by the Act, although clearly designed to persuade employees not to join the Union, and it is well established that this Board possesses authority to enjoin the respondent from making the utterances contained in the letter only where the letter may fairly be said to constitute a part of the whole complex of the. respondent's coercive activities.5 Further, where the facts are capable of sustaining a finding by the Board that the utterances were a part of the respondent's coercive activity, such a finding is not reversable by the Courts.s However, the facts here clearly cannot sustain such a finding since the September 27 letter is readily separable from any of the unfair labor practices committed by the respondent.? On the other hand, the letter is indicative of the respondent's attitude toward the Union, and, therefore, • can reasonably be said to afford 5 N L. R. B. v. Virginia Electric & Power Company, 314 U. S 469 N. L. R. B. v. Trojan Powder Company, 135 F. (2d) 337 (C. C. A. 3). 7 Thomas v Collins, 323 U. S. 516. Cf. Virginia Electric & Power and Trojan Powder cases, supra. REPUBLIC AVIATION CORPORATION 403 support to the inference made by the Trial Examiner that the respond- ent's choice of employees to be dropped was motivated by its desire to discriminate against members of the Union . Since, however, it is conceded that legitimate economic reasons caused the reduction in personnel, this case is at best a close one insofar as it relates to em- ployees on the engine stand section of the assembly line. In this con- nection, counsel for the respondent argued that in view of the testimony of one of the Board witnesses, Ellery Finch, that 40 of the 42 employees in this category had signed up with the Union, it was impossible to draw the inference that a disproportionate number of union adherents were selected for lay-off. On this point, however, the Trial Examiner preferred to believe the testimony of another Board witness , Ewers, to the effect that only 21 of the 42 employees had signed union cards. Since the Trial Examiner's finding on this point really depends upon a question of credibility, it is in accord with our ordinary principles of decision to accept it. Assuming that this was 'the true state of the facts, it would therefore appear that the inference of discrimination in the choice of the employees to be dropped was supported by substantial evidence. This is not true, however, with respect to the finding in regard to the employee Hull. The Trial Examiner did not credit the respondent's defense that it discharged Hull because of unsatisfactory work, and a review of the record does indicate that several aspects of this defense were inconsistent . What the Trial Examiner overlooked apparently, however, was that one essential factor in the case made out by the Board in Hull's behalf was lacking, since it was necessary to prove knowledge on the part of the respondent that Hull was active in the Union, or, in the alternative, a belief that he was active , or circum- stances from- which such an inference might reasonably be drawn. The Trial Examiner finds that although Hull was not a union mem- ber, the respondent had cause to consider him a union adherent and therefore, the respondent's choice of dropping him in the lay-off was motivated, at least in part, by his union advocacy . The sole evidence adduced to support the above conclusion occurs on direct examination of Hull after Hull stated that he could not identify as his own a signa- ture on an authorization card alleged to be signed by Walter Hull, nor could he remember ever signing such a card . He was then asked by counsel for the Board: Q. Did you take any part in union activities? A. Well, nothing in particular, only we talked around there about organizing, that is all. At different times we brought up about unions. Q. Who do you refer to by "we" ? 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Well it was fellows on the Engine Line work I was on. I don't remember them all. Finch, Arbuthnot, and Taylor, and different fellows along there we talked about a union with. Q. Was Foreman Spruell present at any of those conversa- tions? A. At times I think he was listening in on the conversations, yes, sir. Q. Do you know whether he was near? A. Yes, he was near. Q. Do you know of any incident when he took-part in the conversation? A. I don't know any particular incident only once I remember him saying "you are going to fool around with the Union" or something like that and "you will lose your job or get in trouble," or something like that. I remember that. TRIAL EXAMINER: Do you remember the time and place of that? A. I don't remember the day and month. TRIAL EXAMINER : Fix the time. A. Well, I judge February, January or February, somewhere around in there, in the spring (1943). The Trial Examiner relies upon the testimony of Arbuthnot and Finch to corroborate Hull's "open and active support of the Union." The testimony of Arbuthnot, a fellow worker of Hull's, is equally unconvincing. On direct examination as to whether he knew that Hull openly and actively supported the Union, the following was said : Q. What about Walter Hull? A. I think he did, too. Q. Well, do you know? A. Yes, I do know that he was. Q. What did he do?, A. Well, we were discussing the Union all along, trying to get the thing organized. Q. Whom do you mean by "we" ? A. Well those men (Finch, Taylor, and Hull) that you men- tioned there. As for Finch's testimony, he identified half a dozen persons on the assembly line as active in the Union but did not include Hull among them. He was then asked "if there had been anyone else active in the Engine Stand Section, would you have known about it?" His answer was, "I think I would for there was nobody else to my knowl- edge that had any blank (authorization) cards out there." It was REPUBLIC AVIATION CORPORATION 405 only in rebuttal that Finch testified that Hull "talked for it (the Union) all the time." Spruell denied any knowledge of Hull's union activities. Aside from Hull's testimony that Spruell was close by when the assembly line workers discussed union affairs, during January or February, about 5 months before his discharge in July, the record contains no evidence that Spruell ever overheard Hull speak about the Union. Even if Spruell's denial is not credited, the most that can be said is that Spruell had seen Hull in a group of employees who were talking about union matters and that about 5 months prior to the discharge of Hull he warned that group to stop "fooling around with the union or . . . get in trouble." In view of Hull's admission that he was not a union member, that he was not active in its support, and the very lukewarm testimony of Finch and Arbuthnot, it is apparent that counsel for the Board failed to prove knowledge or even a belief on the part of the respondent that Hull was a union adherent. Nor does the record reveal any circum- stances to warrant such an inference. APPENDIX B 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 manner 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 Automobile, Aircraft & Agricultural Workers of America (UAW-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 reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Oscar Finch Walter R. Hull Velia C. Ewers All our employees are free to become or remain members of the above-named union or any other labor organization . We will not 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discriminate in regard to hire or tenure of employment or any terns or condition of employment against any employee because of mem- bership in or activity on behalf of any such labor organization. REPUBLIC AVIATION CORPORATION (Employer) Dated-------------------- By--------------------------------- (Representative) (Title) NOTE.Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in 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 Mr. Ham ry G. Carlson, for the Board. Mr. Frederick P. Bamberger, of Evansville, Ind, Messrs. J. Edward Lumbard, Jr., and Paul J. Quinn, of New York City, and Mr. A. R. Kress, of Farmingdale, N. Y, for the respondent. Mr. Harland D. Burcham, of Louisville, Ky, for the Union. STATEMENT OF THE CASE Upon a' second amended charge filed May 23, 1944, by United Automobile, Air- craft, & Agricultural Implement Workers of AVnerica'(UAW-CIO), herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourteenth Region (St. Louis, Missouri), issued its complaint dated,May 24, 1944, against Republic Aviation Corporation, Evansville, Indiana, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint together with notice of hearing thereon,'were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the respondent: (1) on July 16, 1943, discharged Ira G. Hite and Harry H Wallace, on July 30, 1943, discharged Walter R. Hull and Oscar Finch, on October 14, 1943, discharged Margaret L. Mattingly, on October 28, 1943, dis- charged Vella C. Ewers, and thereafter failed and refused to reinstate them, because of their union membership and activities; (2) on and after June 1943, urged, warned and threatened employees not to join, assist, or vote for the Union or any other labor organization, made derogatory statements concerning unions and their leadership, and questioned employees concerning their union activities and affiliations; and (3) by such acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Prior to the hearing, the respondent filed its answer admitting the jurisdictional allegations of the complaint and denying the commission of any unfair labor practices. The answer alleged affirmatively that the respondent released em- ployees Hull and Finch for unsatisfactory work at a time when the working force in the plant was being reduced, discharged employees Hite and Wallace for insubordination and failure, after due warning, to obey respondent's in- structions, released employee Mattingly for unsatisfactory work and for the reason that she was not suited for the type of work performed, and discharged REPUBLIC AVIATION CORPORATION 407 employee Ewers for failure, after due warning, to obey respondent's instructions and inattention to the work assigned to her. Pursuant to notice, a hearing was held at Evansville, Indiana, from June 21 to June 27, 1944, before the undersigned, Arthur Leff, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, and the Union by a lay representative. All parties par- ticipated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded to all parties. At the close of the Board's case, the respondent moved to dismiss the complaint. The motion was denied. At the close of the hearing, the under- signed granted the motions of the Board and the respondent, respectively, to conform the pleadings to the proof in formal matters, and took under advisement the motion of the respondent to dismiss the complaint for lack of proof. The latter motion is hereby denied except as hereinafter indicated. At the close of the hearing, all parties argued orally before the undersigned, and counsel for the respondent subsequently filed a brief with him. 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 The respondent, Republic Aviation Corporation, is a Delaware corporation having its principal office in the Township of Babylon, County of Suffolk, New York. It operates a plant at Evansville, Indiana, known as the Indiana Division, which alone is involved in this proceeding. It is there engaged in the manufacture of aircraft for the United States Army. During the six months' period preceding December 31, 1943, the respondent used raw materials consisting of aluminum, magnesium, steel, and other aircraft metals, valued in excess of $100,000 00 of which 75 percent was shipped to its plant at Evansville, Indiana, from points outside the State of Indiana During the same period the respondent delivered finished aircraft valued in excess of $100,000 from its said plant to the United States Army Air Force. The respondent admits that it is engaged in commerce within the meaning of the Act. II THE ORGANIZATION INVOLVED United Automobile, Aircraft, & Agricultural Implement Workers of America (UAW-CIO) is a labor organization admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Introduction The respondent's plant at Evansville was constructed in 1942 and operations were commenced there in the latter part of that year. The Union began organi- zation of the respondent's employees about November 1942. On March 2, 1943, the Union filed with the Board a petition for investigation and certification of representatives ; on June 30, 1943, a hearing was held thereon ; on August 13, 1943, the Board directed an election, held on September 29, 1943, in which a majority of the employees in the appropriate unit chose the Union as their collective bargaining representative, and on October 12, 1943, the Union was certified by the Board as the representative of the employees in the unit' 1 A collective bargaining agreement was signed on January 7, 1944. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union's organizational campaign was actively conducted between February 1943, and the date of the election, reaching its climax about July 1943, during which month Finch and Hull were discharged under the circumstances related below. The Union's organizational activities did not cease with the election ; immediately thereafter it instituted an active membership drive. Velia Ewers was discharged while this drive was in progress. B. The discriminatory discharges; interference, restraint, and coercion 1. Oscar Finch and Walter Hull At the time of their discharge on July 30, 1943, Oscar Finch and Walter Hull were employed on the engine stand section of the assembly line. Their immedi- ate foreman was Sidney Spruell. Above Spruell in the respondent's supervisory hierarchy was Vincent Bradley, supervisor of the power plant assembly line, and above Bradley, Louis Aquino, the assembly plant superintendent. Ellery Finch, a son of Oscar Finch and formerly chief timekeeper at the respondent's plant, testified credibly that in August 1943, during an informal discussion among certain supervisors and instructors at the respondent's training school, Bradley, who had recently come from the respondent's Farmingdale plant, remarked that the respondent did not want a union in the plant and would probably try to keep it out.' Ellery Finch further testified that in November 1942, he approached Aquino about a job for his father who was then employed in a West Coast shipyard. While discussing the question of a starting rate, Aquino said, "Well, he belongs to the union out there and is drawing the union wage isn't he?" Upon Ellery Finch's affirmative reply, Aquino said, "Of course, there will not be a union here. The Company does not want a union, and wants to stay away from it as much as possible." Prior to July 30, 1943, there were 42 employees on the engine stand section of the assembly line. During that month, the respondent determined to effectu- ate a reduction in the number of production employees at the plant As a part of the general lay-off, eight employees in the engine stand section were discharged on July 30, 1944. Spruell, who selected those to be discharged, testified that "the decision, more or less, was made by the men who had given us the most trouble, with the least amount of efficiency." Spruell defined "men who had given us most trouble" as those who loafed on the job, or went out for a smoke whenever they had a chance, or talked on their job, or were otherwise inattentive to their work. He defined "efficiency" as speed, neatness, and willingness. The discharged employees, in addition to Hull and Finch, were George Kirk- wood, Edwin Arbuthnot, Ruby Henson, Robert Wall, Walter Taylor, and John Williams.' According to the Union's records, 21 of the 42 employees in the section prior to the reduction in force had signed union authorization cards. Included 2 Bradley denied making this remark . The undersigned was especially impressed with the credibility of Ellery Finch as reflected by the reasonableness of his over-all testimony, and his attitude and demeanor on the witness stand. Bradley did not similarly impress the undersigned. His over-all testimony lacked clarity and convincing detail and was marked mainly by a studied effort to conform to the testimony of Spruell who preceded him on the witness stand. As found below , the undersigned regards much of Spruell 's testi- mony as improbable and untrustworthy. Bradley's denial is not credited. 2 In point of seniority , Walter Hull was the oldest employee in the section ; Finch ranked fifth, and the others, in the order named above, ranked 10th, 14th, 17th, 22nd, 25th, and 31st, respectively . Seniority was admittedly not considered in effecting the discharges. There had previously been no general lay-off in the plant and hence there was no established practice of following seniority on lay-offs. REPUBLIC AVIATION CORPORATION 409 among those who had signed were all the discharged employees with the exception of Hull. It was Finch's undenied testimony, credited by the undersigned, that Kirkwood, Arbuthnot, Henson, Wall, Taylor, and Williams, as well as Finch, were particularly active Union adherents, in that in addition to favoring the Union, they also engaged in solicitation activities on its behalf. The Board does not claim, nor does the evidence establish, that the reduction in personnel effected on July 30 was motivated by other than legitimate economic reasons. It is the contention of the Board, however, that in making its selec- tion of the persons to be discharged, the respondent took into account and was actuated by considerations related to their union membership and activity. The respondent asserts, on the other hand, that it was guided in its selections entirely by considerations of plant efficiency. The principal question to be resolved, therefore, is whether or not the two employees named in the complaint,' were selected for discharge for the reasons which the respondent asserts, or because of their membership in and activity on behalf of the Union, as the complaint alleges. Oscar Finch began working for the respondent on November 16, 1942, and at the time of his discharge ranked fifth in seniority on the engine stand section. His starting rate was 80 cents an hour. Thereafter he received three merit increases, his last one on July 3, 1943. At the time of his discharge he was earning 95 cents an hour and was one of the highest paid employees in the section. The assembly line in the engine stand section was divided into a number of subdivisions or stations, all but a few of which were in charge of group leaders who had the responsibility of approving the work of their re- spective stations before it was advanced along the line, and who, as evidence of their approval, were required to sign clearance forms Only about three or four employees who did not hold the rank of leadmen were charged with clearance responsibility. Finch was one of them. According to Spruell, Finch was first delegated this authority about a month or a month and a half prior to his discharge Spruell admitted that those employees who were chosen to sign clearance forms were selected on the strength of their capability, dependability and experience. It is undenied that Spruell frequently assigned new employees on the line to Finch for instruction and guidance. At the time of his discharge, Finch was acting as overseer of the work of two girl employees. Finch signed a union authorization card about March 1943. Thereafter, he became active in soliciting other employees, both in and out of his department, to sign similar cards. He kept on hand at his place of work blank cards which he received from the Union and acted as an intermediary in distributing these cards to union adherents in other departments and receiving from them signed cards for transmittal to the Union. Finch testified that he obtained in all about 75 to 100 signatures. From the testimony of Hull, Arbuthnot, and Viola Burk, it appears that Finch was the most active Union adherent in his department. Finch's activities did not escape the attention of Spruell. About a month before Finch's discharge, Arbuthnot, according to the latter's testimony which the undersigned credits, had a conversation with Spruell concerning Finch, in the course of which Spruell remarked that he thought Finch was "messing around" with the Union too much for his own good. Spruell denied making the remark 4 Concerning the discharged employees not named in the complaint , J. B. Mansfield , Inter- national representative of the Union , testified that Benson, Taylor, and Arbuthnot had suffered no losses and did not desire reinstatement , and that Kirkwood , Williams, and Wall could not be located for the purpose of determining whether they desired reinstatement. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attributed to him by Arbuthnot, and, further, disclaimed knowledge not only of Finch's interest in the Union but also of any organizing drive in his department. Spruell's denial and disclaimer are not credited.' On the day following his discharge, Finch, according to his testimony which the undersigned credits, had the following conversation with Spruell: I asked him, I said "Why are you discharging me? I am one of the oldest men you have. I have always stayed and worked whenever you asked me to stay." I said "Any time you had extra work and wanted a fellow to stay, I have always stayed and helped you out. Any time you sent a new man up there for we to go with and start in, I have done my best to get them started." I said, "I have tried to make you a hand out here all along" and I said "It is funny thing I am being discharged. I would like to know the reason why." He [Spruell] said "Well," he said, "you are too active in the Union. You are wearing a Union button around out here." I said, "I never had a Union button on, and never seen one in the plant." He said, "Well, I was told you were wearing one, and I went up to see, but I did not see one, I did not see you have one on, but Robert Wall was wearing one up there I seen him with it on, and he was the first one to get discharged and you are the next. The Company does not want a Union out here but it looks like they will have one anyway, and they are getting rid of them as fast as they can that are working for the Union." At Spruell's suggestion, Finch also spoke to Bradley that morning. Bradley, according to Finch, said to him: "You are one of the regulars that have been picked, and it is one of those things, and there is nothing I can do for you and you will have to go." But, Bradley added, "You will get a good discharge. There is no kick about your work." ° Thereafter, Finch received from the respondent a formal release which stated as the reason for his unemployment, "Work unsatisfactory." 7 It is clear from the record, and it was not seriously disputed by the respondent, that from the standpoint of quality and quantity of production Finch was one of the most satisfactory employees in the section. Reference has' already been made to Finch's several merit increases, to the fact that he was one of the few non-supervisory employees authorized to sign clearance forms, and to the fact that he was often designated to instruct new employees. Spruell himself ad- mitted that Finch was one of the fastest workers on the line. Viola Burk, line 5 Spruell from his demeanor on the witness stand impressed the undersigned as an unre- liable and untrustworthy witness His over-all testimony in the main was marked by vague and unconvincing generalities which he was unable to support by detail, in a number of respects his testimony was self-contradictory and at variance with that of other respondent's witnesses. 5 Spruell and Bradley denied making the statements attributed to them, respectively, by Finch. Finch's testimony in the main was supported by convincing detail and by other corroborating circumstances in the record. As heretofore noted, the undersigned did not find the testimony of Spruell and Bradley generally to be credible . The undersigned does not credit the denials of Spruell and Bradley and finds that the statements attributed to them were made substantially as testified by Finch. 7 This release was subsequently altered at the respondent's personnel office to read "work satisfactory" and to state as the reason for unemployment , "Because no work available " The respondent contends that this alteration was unauthorized. It appears that the change was made by Horace Nicholson, at that time personnel counselor of the respondent . Nichol- son testified that he made the change at the request of Ellery Finch because he knew the work of Oscar Finch and considered the original notation an error. He admitted, however, that he did not consult any supervisor . The undersigned finds as contended by the respondent , that Nicholson acted without authority in effecting this change. REPUBLIC AVIATION CORPORATION 411 inspector over Finch's work at the time of his discharge, testified credibly that it was never necessary to return Finch's work, that he was "more or less" a leader in the line, and that others looked to him for guidance. Arbuthnot testified to the same effect. Carroll Brelsford, timekeeper in Finch's department, testified that Finch was a diligent and conscientious worker whom he never had occasion to report for ,loafing. The testimony of these witnesses was not substantially contradicted. In purported justification of his selection of Finch for "unsatisfactory work," Spruell assigned a variety of reasons, none of which, with the possible exception of one, can be considered as directly reflecting on the quality or quantity of Finch's work. Thus, he testified that among the factors which he considered were (1) that Finch wandered from his job and-"several times" had been found talking to a girl timekeeper on the opposite side of the building," '(2) that on one occasion when there was a shortage of parts, Finch had refused to go home early,° (3) that Finch on occasion had improperly applied his wrench and had scarred nuts be- cause "he worked faster than the ordinary man," 10 (4) that Finch had engaged in a number of "fights" with fellow employees," (5) that Finch who had injured his foot in the course of his employment would carry a chair around with him while at work" The undersigned does not credit Spruell's testimony concerning the reasons motivating his selection of Finch for discharge. The testimony adduced by the respondent was vague and unconvincing, and, as noted," upon close scrutiny 8 Spruell's testimony as to these alleged occurrences was vague and indefinite and did not indicate whether Finch had improperly absented himself from his work. Although Spruell originally testified that there were "several" such occasions on cross-examination he could recall only one, about 2 months before Finch's discharge Finch testified that he had no recollection of the alleged incident and did not know any girl timekeeper on the opposite side of the building. The undersigned credits Finch's testimony and finds, con- trary to the contention of the respondent, that Finch was not in the habit of wandering from his work. 0 Spruell supplied no details as to this alleged incident to which he testified when called as witness by the Board when, later in the hearing, he was recalled by the respondent and was asked to explain the factors he considered in selecting Finch, he did not again refer to this incident 10 Here, too, Spruell was vague and indefinite, and when recalled by the respondent did not restate this as a reason which motivated in part his selection of Finch He did not deny Finch's testimony that all employees who worked on the fittings had exactly the same trouble. Nor did he deny Finch's testimony that Finch's work was never rejected by the inspectors. 11 Spruell referred indefinitely in his testimony to "fights," with an employee named Snyder, with an unnamed plant guard, and with an employee named Jameson Finch recalled the first as a brief verbal altercation, about 3 months before his discharge, with an employee who had precipitated the altercation by calling him a vile name. According to Finch's credible testimony, Spruell learned about this occurrence only because Finch had related it to him. The "fight" with the patrolman involved a verbal request made by the patrolman to pin his badge on his shirt rather than on his cap wheie Finch had it pinned as a safety measure so as not to get it caught in the motor on which he was wQrking, and a refusal by Finch to comply for that reason There was no plant rule requiring that badges be worn in any particular place so long as they were visible. This incident had occurred a considerable time prior to Finch's discharge. As to the alleged "fight" involving Jameson, Spruell was unable to supply any details whatsoever, stating "I disremember just what it is " Finch denied knowing anyone named Jameson. It is found that the evidence does not support the respondent's contention that Finch was a quarrelsome employee 12 Stools were available near the place of work, and Finch admitted that at times he would sit at the edge of a stool that was handy to perform low safety wiring Finch denied that he made it a practice to carry a chair about with him, and his testimony in this respect was corroborated by Inspector Bulk The record does not establish that Finch's use of a stool interfered in any way with the performance by him of his work, Finch denied that he was ever reprimanded for using a stool, and his testimony is credited. 11 See footnotes 9 to 12, supra. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the reasons assigned by Spruell assume at best reduced and insubstantial pro- portions. The same reasons, although then present, do not appear to have been considered of sufficient importance to prevent Finch from receiving his last merit increase within 4 weeks prior to his discharge, nor from being designated by Spruell,as a person sufficiently competent, dependable, and otherwise qualified to sign clearance forms. On the basis of the record as a whole, the undersigned is persuaded that the reasons assigned by Spruell were not considered by the respondent at the time of Finch's discharge, and did not induce the discharge, but were resurrected thereafter in retrospect in an effort to supply some justification for the respondent's action. The undersigned finds that the re- spondent's claim that Finch was selected for discharge because of "unsatisfactory work" is not supported by the credible evidence. On the contrary, it is abundantly clear from the facts set forth above and from the entire record, and the undersigned concludes, that Finch was chosen for discharge because of his membership and activity on behalf of the Union. From the statements of Aquino, Bradley, and Spruell, noted above, it is apparent that all supervisory employees above Finch, from the assembly line superintendent down, viewed the respondent's policy as being opposed to unionization of the plant. It is not without significance that 7 of the employees selected for discharge, at a time when the Union's organizational campaign was at its crest, were among the most active supporters of the Union in the section, and that Finch was the foremost of them." Pointing persuasively to the conclusion that Finch's selection was motivated by his union activities are the statement by Spruell to Arbuthnot that Finch was "messing around" with the Union too much for his own good, the obvious falsity of the "unsatisfactory work" explanation stated on Finch's release form, and the absence of any other adequate or con- vincing explanation for the respondent's selection of Finch, one of its oldest and most competent employees. Any doubt as to the discriminatory motive under- lying the respondent's selection of Finch for discharge is dispelled by Spruell's admission made to Finch on the day following his discharge. The undersigned accordingly finds that Finch was discharged on July 30, 1943, and thereafter denied reinstatement because of his membership in and activities on behalf of the Union and to discourage membership in the Union. Walter Hull was employed by the respondent continuously from May 22, 1942 until July 30, 1943, when he was discharged. After serving a training period and working for a time in the Manufacturing Department, he was trans- ferred, upon the completion of the respondent's plant facilities in November 1942, to the machine shop, and shortly thereafter in the same month was again transferred to the engine stand section of the assembly line where he con- tinued until his discharge. While employed at the engine stand section, he received 2 merit increases, one on February 21, 1943, and the other on May 8, 1943. At the time of his discharge, he was earning 90 cents an hour ; there were then only 4 employees in the section receiving a higher rate and only 8 receiving an equal rate. In point of seniority, Hull was the oldest employee in the engine stand section and one of the oldest employees in the entire plant. Concerning his membership in the Union, Hull testified that it was his belief that he signed a Union authorization when he was employed in the machine shop 14 See N. L. R. B. v. Chicago Steel Foundry Co., 142 F. (2d) 306 (C. C. A. 7), where the Court said : To be sure, percentage evidence, standing alone will not support or sustain an order based on Section 8 (3). But the disproportionate treatment of union and non-union workers may be very persuasive evidence of discrimination and may create an inference leaving it to an employer to give an adequate explanation of the discharge or lay-off. REPUBLIC AVIATION CORPORATION 413 in November 1942, but that he could not remember. Finch, while testifying, re- called that when he had asked Hull to sign a union card, Hull had told hint that he had signed one when he was in the machine shop. The Union, although re- quested to do so, was unable to produce any record establishing Hull's union membership. In the light of Hull's uncertainty and in the absence of other supporting evidence, it is found that the record does not support the Board's contention that Hull was a member of the Union at the time of his discharge. However, there is credible evidence establishing that even though Hull did not actually sign a Union card, the respondent had caused to consider him a Union adherent. Hull, while frankly admitting on direct-examination that he was not one of the more active Union adherents in the engine line section, testified credibly that he, nevertheless, openly took part in conversations concerning union organiza- tion with such active employees as Finch, Kirkwood, Arbuthnot, and Taylor, and that he always spoke in favor of the Union. These conversations, according to Hull, were sometimes held in the hearing of Spruell. On one occasion in the Spring of 1943, during the course of one such conversation, Spruell made a re- mark, apparently to the group, to the effect that if they continued to "fool around" with the Union, they would get in trouble.15 Hull's testimony concerning his open and active support of the Union was corroborated by Finch and Arbuthnot. Spruell, while denying knowledge of Hull's union membership, did not expressly deny that he overheard Hull together with other employees espousing the cause of the Union. Spruell's denial, to the extent that it implies an absence of knowl- edge of Hull's pro-union activities, is not credited. It is found that Hull in conversations with fellow employees prior to his discharge actively supported the Union and that the respondent, through Spruell, had knowledge of that fact. It is the respondent's contention that Hull, like Finch, was selected for dis- charge because he was one of the least satisfactory employees on the line. The evidence adduced by the respondent in support of its contention concerning Hull was confined to the opinion testimony of Spruell and Bradley that Hull had no natural mechanical ability, Spruell's further testimony, likewise couched in general terms, that Hull required instruction in his work, and Spruell's one spe- cific reference to an occasion about a month before the discharge when Hull had improperly installed an elastic stop nut. Apart from this testimony, mainly conclusionary in character, the respondent offered no evidence which would afford a basis for making a true comparison of the quality and quantity of Hull's work with that of other employees who were retained. On the other hand, Hull's testi- mony that his work had not been criticized for more than a month prior to his discharge was undenied, and Spruell admitted, while testifying, that although Hull was not as fast as some of the other workers "he was a good worker on what he knew how to do." Finch, who had worked alongside Hull a considerable por- tion of his time, testified that Hull was at least an average worker, and that while he was not particularly fast, the quality of his work was good. The respondent does not claim that it selected Hull because of slowness in his work, but rather, as noted, because of his alleged lack of natural mechanical ability. It appears, however, that mechanical training or aptitude was not a prerequisite for the job. At the time of Hull's discharge, there were about 8 employees in the line who had been employed within the past 60 days, and many of them, it was admitted, had no prior mechanical training. Hull, the oldest employee in the section, had worked there for over 8 months. During that period he had received 2 merit 15 Spruell denied making this statement As found above, Spruell was not a credible wit- ness Hull's testimony concerning his open advocacy of the Union cause, Spruell's aware- ness of union activities in his department , and Spruell's expressed attitude thereto, is cor- roborated by and consistent with other events in the record, and is credited. 639678-45-vol. 61-28 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increases, and was one of the highest paid employees in the section. That an employee's rate of pay in the respondent's estimation was correlated to his ability was in effect admitted by Bradley who testified that the respondent con- sidered its higher paid employees to be better mechanics than those receiving a lower rate. Although, as found above, Hull was not actually a Union member, it is clear that he held himself out as such and that by his open advocacy of the Union, he led the respondent to identify him with the Union's organizational drive. The discharge of a non-union member is none the less discriminatory where it is motivated by a suspicion of his union membership, activity, or sympathy.1° That the respondent in making its selections for the lay-off took into account and was guided at least in part by considerations of union allegiance and activity is indicated by the disproportionate number of the more active Union adherents who were selected for discharge, as well as by its selection of Finch, an em- ployee of outstanding and recognized ability. That this is so is established beyond inference by Spruell's admission to Finch as to the reason for the latter's discharge. The respondent's defense that it selected Hull because of the un- satisfactory character of his work, supported only by vague and general testi- mony, is not convincing when considered in light of the length of his employment, his 2 merit increases, his seniority standing in the department, and the reten- tion by the respondent of a number of inexperienced employees with less than 60 days service. Upon the record as a whole the undersigned is persuaded, and finds, that the respondent was motivated at least in part in selecting Hull for discharge on July 30, 1943, because of his union activities and to discourage membership in the Union. 2. Velia Ewers Velia Ewers was employed by the respondent from June 24, 1942, until October 28, 1943, when she was discharged. In November 1942, after serving a training period and working in other parts of the plant, she was transferred to the Spot Welding Department where she remained until her discharge. In October 1943, there were 4 operators in the Spot Welding Department. Ewers was assigned to the only steel spot welding machine in the department, the others to aluminum spot welding machines. Charles Wingfield became department fore- man on October 2, 1943; above Wingfield was Supervisor Charles Card, and above the latter, Parts Plant Superintendent Springford. Ewers was admittedly a competent and, in certain respects, an outstanding employee While employed by the respondent, she received in addition to 3 automatic raises, 3 increases for merit, the last one on August 21, 1943, and at the time of her discharge was earning the highest rate for her occupational classification . Ewers won 3 special awards from the respondent for making suggestions for the improvement of work methods in the plant In July 1943, she was made a member of the Victory Council, composed of 15 employees, in a plant then employing more than 5,000, who were selected by the respondent to meet with management once a month to offer ideas for speeding plant production. She was also chosen by management as one of a group of 12 employees to form a so-called President's Committee, the members of which personally greeted and shook hands with the President of the United States when he made a'tour through the plant. The members of the President's Committee were composed of typical employees each with a record of having speeded up plant production. '6 N. L. R. B v Vincennes Steel Corp , 117 F ( 2d) 169 (C. C, A. 7), enf'g, as modified, 17 N. L. R. B. 825, REPUBLIC AVIATION CORPORATION 415 Considerable publicity was given to Ewers' achievements both in the respondent's bi-weekly publication and in the local press. Ewers signed a Union authorization card in November 1942. On October 6, 1943, following the announcement of the Union 's election victory, Ewers for the first time wore a Union button in the plant On that day, according to her testimony , she was approached by her group foreman, Charles Wingfield, who asked her what kind of a button it was. Upon being told , Wingfield shrugged his shoulders , gave a sneering laugh, and walked away.17 Following the election, the Union embarked on a membership campaign . Ewers participated actively in that campaign , soliciting members before and after work and during the lunch and smoking periods. At times other employees came to Ewers while she was at work and left signed cards with her. According to Wingfield , on one occasion during the second week of October , he observed Ewers passing out cards to employees along the atsle.i8 Wingfield promptly reported that occurrence to his supervisor, Charles Card, and then, acting on the latter 's instructions, advised Ewers that she would not be allowed to solicit or pass out cards on company time. Wingfield also cautioned Ewers not to have cards signed on company time as Springford would have her discharged if she did . However, according to Ewers, Wingfield at that time agreed with her that it would not be considered solicitation if cards were merely left with her.19 Thereafter , and without further reprimand from her supervisors , Ewers, in their presence, continued openly to receive cards from other employees ,20 but did not during working hours pass out cards or otherwise engage in any solicitation . Wingfield did not claim, and there is no evidence , that Ewers at any time after this warning distributed cards among employees while she was absent from her machine.n At a Union meeting on October 25, 1943, Ewers was nominated for the office of financial secretary .22 The following day, while Wingfield was present, a number of employees came past her machine and congratulated her on her nomination. On October 28, 1943, Ewers was called to Card's office and told that she was being released . The reason given by Card was that she did not stay on her machine Ewers denied this charge , and told Card that she felt she was being treated unfairly . Card said , "Well, I don't want you to feel like that is it. I am going to straighten out that department and there will be a lot of changes made, and you are the first one." Card added, "I don 't want you to feel honored at what I am fixing to tell you, we had a meeting this morning of the 17 Irma Schreiber , an employee in the same department, testified that on a subsequent occasion when she first wore a steward button, Wingfield engaged in similar pantomime with tier. Wingfield denied ever speaking to Ewers or Schreiber about the buttons , and further denied that he even saw Eweis wear a button . Wingfield 's denials are not credited. is Wingfield's testimony indicates that the card passing occurred in his department. It is not clear from his testimony whether he claims this occurred during working hours Card testified that he emphasized to Wingfield, when this incident was reported to him, that the smoking period was included in company time. 19 Wingfield denied that he told Ewers it would be permissible for her to receive cards while she was working. According to him he simply told her that she could not "do any soliciting or passing out" of cards Wingfield admitted that although he frequently observed Ewers receiving cards thereafter, he did not again speak to her about it. Under all the circumstances , the undersigned does not credit Wingfield's denial. 20 The record indicates that this would happen on some days as many as four times, on others not at all. 21 On one occasion , however, about 2 days before her discharge, Ewers , according to her undenied testimony , handed a batch of unsigned cards which she kept in her desk to Williams, a union steward. Wingfield observed this incident and•then promptly went into Card's office 2= Ewers was subsequently elected, and was still serving in that office at the times of the hearing. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD `big shots' and we decided to let you go. After calling Wingfield in he gave me his opinion on what he thought." Ewers then asked if she was being fired for union activities. Card said, "Not exactly." However when Ewers insisted that this was the real reason for her discharge, Card denied it 23 After her talk with Card, Ewers sought but was denied a transfer to another department. She received a release which stated as the cause of her discharge, "lack of application." The respondent, in its answer, alleges that it discharged Ewers for failure after due warning to obey its instructions and for inattention to the work as- signed to her. In its brief the respondent states : The only reason Ewers was discharged is that she was away from her machine too much. This was the reason given to her when she was asked why she was released and it is the reason relied on by the respondent- The respondent, in its brief,24 expressly disclaims that it discharged Ewers because of her union activities on company time. At the hearing it took the same position. In support of its defense, the respondent relies principally on the oral testimony of Wingfield, as well as upon certain records, referred to below. It was Wing- field's testimony that from the time he was made department foreman on October 2, 1943, until October 28, when Ewers was released, Ewers was continually absent from her machine as much as 4 or 5 times a day, often for periods of from 30 to 45 minutes each, sometimes as long as an hour ; that because of her absences production on steel spot welding fell behind and necessitated the transfer of aluminum welders to the steel machine on the average of 2 or 3 times a day ; that 3 times during the month, once during the week of October 4 and twice during the week of October 11, he spoke to Ewers about her absences, and told her she would have to stay on her machine; that at about the same time he also spoke to Card about Ewers' absences ; that Ewers' absences nevertheless persisted ; and that for that reason and because steel spot welding was falling off he was eventually led to recommend to Card that Ewers be dismissed. Card, who corroborated Wing- field's testimony concerning their talks and the reasons leading to the discharge, admitted that he did not himself observe Ewers' alleged absences, and that his information on that subject was derived from Wingfield. Ewers denied that she had ever fallen behind with, her spot welding produc- tion in October and denied also that Wingfield had ever told her she was spend- ing too much time away from her machine. Ewers did not deny that she left her machine several times a day, but testified that she did so only when she had za The facts concerning Ewers' release are based on her testimony Card denied that the Union was mentioned and further denied that he told Ewers he had spoken about her to "big shots." Card's testimony was contradictory. At one point in his direct-examination, he testified that prior to Ewers' discharge he discussed her case with Parts Plant Superin- tendent Springford , when questioned on cross-examination, he denied this The under- signed does not credit Card's denial, and finds that Ewers' testimony , which is inherently probable, substantially reflects her conversation with Card u The brief states, "her [Ewers'] solicitation on company time is material only to the extent that it shows that she was not giving her full attention to her job, and that it was one of the reasons which prompted her to leave her work for extended periods of time." The respondent made no effort to prove that it had a general plant rule prohibiting solicita- tion on company time, nor does it appear that any such rule was ever posted or published. There is undisputed evidence establishing that, even if the company had a general no- solicitation rule, the rule was more honored by its breach than by its observance. The record shows that employees with the knowledge and acquiescence of their supervisors, were permitted freely to engage in solicitation activities of various kinds , unrelated to union matters. Admittedly, the respondent did not have a rule prohibiting employees from talking while at work. REPUBLIC AVIATION CORPORATION 417 occasion to go to the rest room or to the company hospital, and that her rest room absences did not exceed 15 minutes at a time w Ewers' testimony that there was no lag during October in steel spot welding production was corroborated by Irma Schreiber and Alma Schmitt, both of whom worked with Ewers in the Spot Welding Department. Schreiber and Schmitt testified that while there was some difficulty with aluminum spot welding production during October there was none with steel. Wingfield, when asked how the work of the night shift steel spot welding operator compared with that of Ewers, stated that according to his records the night shift steel welding operator did not operate the steel machine full-time during October since "it apparently was necessary for him to come off the steel machine in order to get out some aluminum at night." Wingfield thus in effect supported the testimony of Ewers, Schreiber, and Schmitt, and contradicted his own testimony that pro- duction on steel was falling behind in October as a result of Ewers' alleged absences It is scarcely likely that with steel welding production lagging, the respondent would have assigned its night operator to aluminum work. Under the circumstances, the undersigned does not credit the testimony of Wingfield and Card that Ewers' alleged absences led to a "bottleneck" in steel welding production and that this was one of the reasons motivating the discharge 2e Ewers' testimony concerning the frequency, length, and purposes of her ab- sences from her machine was likewise corroborated by Schreiber and Schmitt, both of whom testified that it was the usual practice in the department for employees to go to the rest room four times a day, twice in the forenoon and twice in the afternoon,' and that Ewers left her machine no more often and stayed away no longer than the others. Harold Bell, a timekeeper who was charged with the duty of reporting loafing and idle time, testified that he never had occasion to report Ewers and that from his observation he considered Ewers above average from the point of view of diligence and application to her assigned duties. The respondent did not deny that it was a regular practice in the department for employees to go to the rest room four times a day, nor did it adduce any evidence to contradict Ewers' testimony that she left her machine only for the purpose of going to the rest room or the hospital. If, during her absences, which allegedly extended continually over a period of a month, Ewers wandered to other departments of the plant or occupied her time with other activities, it is probable that this would have come to the notice of the respondent and that it would have adduced evidence to that effect. Absent such evidence, there is no basis for the respondent's speculation that Ewers must have been engaged in union activities while away from her machine because she was actively interested in the Union's membership drive, on occasion received cards 25 The rest room was located about 200 feet from Ewers' machine. Personnel Director Hodge testified that the respondent had no regulation on how long employees might remain in the rest room 29 The Board introduced Ewers' records for the months of August through October for the purpose of showing that Ewers produced more in October than in either of the preced- ing months. The records show that while she worked on more parts in October than in August, her production in October was substantially less than in September. The under- signed does not attach any importance to these records as an index to Ewers' application to her work, for these records standing alone do not take into account other variable factors ,such as the flow of materials through the department, the type of parts worked on, etc. That this is so is evident from the wide daily range reflected in Ewers' September records showing that she produced as many as 20,000 welds on some days and as few as 1,400 on others. In any event, it is noted that Ewers' spot weld production during the last week of her employment exceeded her September average. "The plant was then operating on a 10-hour shift. The record does not indicate what regular rest periods , if any, were provided. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD while at her machine, and once, according to Wingfield, was seen distributing cards in the aisle of her department. Nor is it reasonable to believe that Ewers loitered in the rest room. Apart from the fact, established by the record, that the rest room was policed by matrons whose duty it was to see that employees did not overstay their time, Ewers' acknowledged record as an employee interested in the promotion of speedy and efficient plant production, a record achieved while she was a Union member, argues strongly against any inference that she would deliberately loiter in the rest room or otherwise fail to apply herself to her assigned duties. Moreover, if, as Wingfield testified, Ewers for a full month and in the face of declining production continually ab- sented herself from her machine 4 times a day for periods of from 30 to 45 minutes each, it is highly improbable that Wingfield would have refrained from recommending disciplinary action for that length of time. Finally, the very records upon which the respondent, in its brief, relies to establish Ewers' alleged excessive absences from her machine not only fail to support its position but serve instead to discredit Wingfield's testimony that he was required to place a substitute on Ewers' machine on the average of 2 or 3 times a day during the period in question 2' Under all the circumstances the undersigned does not credit Wingfield's uncorroborated testimony concerning Ewers' alleged excessive absences from her machine, and finds, substantially in accordance with the 28 The respondent contends in its brief, that Ewers' absences from her machine necessi- tated the transfer of Schreiber or Schmitt to Ewers' steel welding machine 35 times during October 1943, and that Schreiber and Schmitt produced during that month 18 percent of the total work done on Ewers' steel welding machine, or the equivalent of 5 clays' work on Ewers' part. This contention is made on the basis of a purported analysis of certain books kept by Schreiber and Schmitt (who except during Ewers' absences did aluminum spot welding only) in which they recorded each clay the parts on which they worked. These books do not distinguish the steel welded parts from the aluminum welded parts. The respondent's analysis is based in part on Wingfield's testimony identifying certain items as steel, testimony which the undersigned does not credit because it is inherently Improble in certain respects and is, moreover, contradicted by other and more reliable evi- dence adduced by the respondent through James Callahan, an engineer, who submitted a schedule listing all parts requiring steel spot welding. According to the respondent's analysis, Schreiber and Schmitt performed steel spot welding work mainly on a part known as 89 x 27300-4 (sheet fairing), and to a lesser extent on a part identified as 89P62110-2 (rim assembly). Callahan's schedule lists neither of these parts as requiring steel spot welding, and his testimony shows that 89 x 27300-4 (sheet fairing) re- quires aluminum welding. Although Callahan's schedule does refer to a vended part num- bered 89P622110, this is called a pre-heater assembly Apart from the disparity in num her and name, there is inherent evidence in the work books that the rim assembly part is not the same as the pre-heater assembly part. Thus, on one day Schreiber and Schmitt worked apparently simultaneously on the rim assembly part, although there is but one steel machine. Thus, too, although. Schreiber and Schmitt worked on the rim assembly part eight times in October alone, Ewers' records, dating back to June, disclose that she never worked on that part although she was the regular steel operator Analysis of the books in question, excluding the discredited items, refutes the respond- ent's contention. It shows that during October (excluding the following days when Ewers was concededly absent from the plant ; October 20; a Saturday afternoon, presum- ably October 23 ; and October 28, when Ewers was discharged before the close of the work day), Schreiber and Schmitt worked on regular production steel welding work only on October 6 and 11 Schreiber and Schmitt each worked on the steel machine on only four other occasions during the month, but their work on such occasions was confined to vended parts or other parts requiring patch work only Patch jobs are short special jobs required by the assembly line and are usually performed while the assembly employee waits, and it is the practice of the department to assign patch jobs to whomever is available if the regular employee is in the rest room Including the production items on October 6 and 11 (2,747 welds) Schreiber and Schmitt together, during Ewers' absences in October, produced 3,215 welds on the steel machine, as contrasted to a total of 131,272 welds produced by Ewers, or less than 2i/ percent of Ewers' total production, the equivalent of less than 15 minutes a day. REPUBLIC AVIATION CORPORATION 419 credited testimony of Ewers, Schreiber, and Schmitt that Ewers' absences were inordinate neither in frequency nor length. Wingfield's testimony that he spoke to Ewers concerning her absences on three occasions prior to her discharge was vague and unconvincing and for this reason, as well as on the basis of the undersigned's observation of Wingfield and appraisal of his over-all testimony, is likewise not credited. It is significant that Card, the first supervisor above Ewers with authority to effect disciplinary action, admittedly never spoke to Ewers about her alleged improper absences until after her release form had been prepared. Yet, as the record shows, Card considered her case of sufficient importance to consult his superintendent, Springford, as well as Personnel Counsellor Dilger before taking any action. Although Ewers admittedly was an unusually skilled and competent employee and the respondent was experiencing great difficulty at the time in maintaining its required personnel quota, Card, without himself investigating the matter or affording Ewers an opportunity of explanation, invoked the maximum penalty of discharge, instead of the available penalty of suspension. Card's summary action did not reflect the normal attitude of a supervisor toward an employee who, as a member of the Victory Council had been meeting with management and whose outstanding achievements toward improving and expediting plant operations had been recog- nized and given considerable publicity by the respondent. Upon the record as a whole the undersigned is convinced and finds that Ewers was not discharged for the reason asserted by the respondent. It is clear that the respondent viewed with antipathy Ewers' participation in the Union's mem- bership drive, and that Wingfield made it a special point to observe and report promptly to his supervisor Ewers' union activities on company premises. Whether Ewers improperly engaged in union solicitation on company time is not here in issue ; the respondent does not assert that it discharged Ewers for this reason, that issue was not litigated, and the record as it stands does not support a find- ing that Ewers violated any instructions or valid rule of the Company in that respect. Under all the circumstances, Ewers' discharge, 2 days after she was nominated for the position of financial secretary of the Union, is hardly sus- ceptible of explanation on any basis other than that the respondent resented the prominent role in the Union taken by an employee to whom management had theretofore accorded honor, prestige, and publicity as an outstanding employee. It is found that Ewers was in fact, discharged on October 28, 1943, because of her membership in and her advocacy of the Union and to discourage membership in .the Union. C. The alleged discriminatory discharges 1. Ira Hite and Harry Wallace Ira Hite was employed as a plant guard from August 8, 1942, until December 29, 1942, when he resigned ; thereafter on January 27, 1943, he was rehired in the Parts Plant, and on February 20, 1943, he was transferred to the Mainte- nance Department as a painter. Harry Wallace was employed in the Parts Plant on February 11, 1943, and on April 10, 1943, was transferred to the Main- tenance Department where, like Hite, he worked as a painter until discharged. The Maintenance Department employed on its day shift 4 painters: Hite, Wal- lace, Myron Curtis, and one other not here involved. The painters worked di- rectly under the supervision of Group Foreman Jack Moore who had authority to recommend action affecting the status of employees under him but could not himself effect such action. Above Moore on the supervisory ladder was Main- tenance Superintendent William J. Wells, and above Wells, Facilities Manager 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD William A. Reid, who also had general supervision over the plant protection force. Wallace and Hite were both discharged on July 16, 1943. Each received a Report of Unemployment which stated as the cause of his unemployment, "Dis- satisfied." The respondent alleged in its answer that Wallace and Hite were discharged for insubordination and failure, after due warning, to obey the re- spondent's instructions. Wallace, Hite and Curtis were Union members. Wallace, the most active of the three, signed a Union card on February 11, 1943, and thereafter par- ticipated actively in the Union's organizational campaign, obtaining, according to his testimony, 300 signed cards. Hite, less active than Wallace, signed a Union card on February 17, 1943, and, according to his testimony, thereafter engaged in some solicitation and secured a number of signed cards from other employees. Curtis, although he signed a Union authorization card, at no time took part in any Union activities. Hite testified that on about 5 occasions during the months of May, June, and July, 1943, he had conversations with Moore concerning the Union. On June 12, 1943, Moore suggested to Hite the name of another maintenance painter as a likely Union prospect. Hite succeeded in securing the prospect's signature to a Union card, and later reported that fact to Moore. About a week or 10 days before their discharge, Wallace, while chang- ing clothes in the paint shop, dropped a batch of union cards from his pocket. Moore was then about 8 feet away. As Hite and Wallace stooped to pick up the cards, Hite, according to his testimony, observed Moore watching them with some interest 20 Moore denied knowledge of these incidents and also denied generally that he know Wallace or Hite were interested in the Union. The un- dersigned does not credit Moore's denials, and finds that Moore was aware of Hite's and Wallace's interest in the Union 20 On the morning of July 16, 1943,, Hite, Wallace, and Curtis were assigned by Moore to a loading dock to paint crates containing airplane replacement parts intended for immediate overseas shipment. Moore gave them no instructions as to how they were to be painted. On prior occasions when they had been assigned to paint similar crates, they had used brushes. Because of the large number of crates to be painted and the urgency of the job, they decided without consulting Moore that spray painting would be more convenient and expeditious. Curtis then went to the Fuselage Paint Shop for a spray ,gun and Wallace went to the Service Building to get a hose for the gun. Hite remained on the dock. Curtis returned with the gun but Wallace was unsuccessful in his effort to obtain. a hose. The painters borrowed a hose which was being used by other employees on the same dock who were using a spray gun to stencil. identification marks on crates. With it and the gun obtained by Curtis, they spray painted one crate. The stencilers then requested the return of their hose, and the painters resumed brush painting 31 Shortly thereafter, while the painters were still brush painting, Moore came to the dock, very angry, and accused Hite of having gone "over his head" to get spraying equipment. Moore and Hite thereupon entered into a heated argument. 21 Wallace testified that when he stooped to pick up the cards he was turned sideways from Moore, and therefore could not testify that Moore saw the cards, but did testify that Moore was in a position to see them. 80 Wallace testified that about a week before his release Paul Hanks, who he said was a leadman in the machine shop, told him that Moore was "gunning" for him because of his union activities. Moore denied this and denied that he knew Hanks. Hanks was not identified as a supervisory employee ; there is evidence that he was active on behalf of the Union. The undersigned does not accept Wallace's hearsay testimony. 81 Moore admitted that he did not learn until after the discharge of Wallace and Hite that the painters had actually engaged in any spray painting that day. REPUBLIC AVIATION CORPORATION 421 Hite denied that he was the one who went after the equipment , and Moore told Hite to cc me with him to see Robert Schenck, another maintenance foreman, who would verify that Hite was the one who had asked for the spraying equip- ment." Moore and Hite then went to the Maintenance Service Building but could not find Schenck. Wallace and Curtis, considering themselves implicated equally with Hite, soon thereafter left their work and joined Moore and Hite at the Service Building. As to what followed there is a sharp conflict in the testi- mony. The testimony of Wallace, Hite and Curtis, in substantial agreement,3" is to the following effect : When Wallace and Curtis joined Moore and Hite, they told Moore that they wanted to see Wells, and all four thereupon went to Wells' office in the Service Building Wells was absent from his office, attending a meet- ing at the Administration Building, and Moore after asking the painters to wait for him, left to see Wells alone. After some time, the painters decided to wait no longer but to find Wells themselves. They left Wells' office and located Wells together with Moore coining out of the Administration Building. Without giv- ing the painters an opportunity to explain, Wells turned to Moore and asked, "Which one do you want fired?" Moore said, "Hite and Wallace." Referring to Curtis, Moore said, "He is all right." Curtis said he would rather quit than work for Moore under the circumstances They then all went down to the Personnel Office where subsequently Curtis was transferred to a plant guard position and Wallace and Hite received their final releases. The testimony of Moore and Wells is materially at variance with that above set forth in the following respects: Moore testified that, before he left Wells' office to go to the Administration Building, he expressly ordered the painters back to work. Moore and Wells both testified that Wells personally repeated this or- der to the painters and that it was only after their refusal to comply that Wells turned to Moore and asked whom he wanted discharged."' It was Wells' testi- mony that he discharged Wallace and Hite for insubordination solely because of their refusal to obey his order. The testimony of Plant Facilities Manager Reid is likewise to the effect that the refusal of the men to obey instructions to re- turn to work alone motivated their discharge. While both Curtis and Moore were disinterested witnesses, Curtis impressed the undersigned as a particularly credible witness 3' Moore, like Wells, did not 88 82 According to Moore , Schenck had advised him that Hite had gone after a spraying hose sa In cases of minor conflicts in their testimony , the undersigned has accepted the testi- mony of Curtis 34 There is also testimony by Ralph Wallace, electrical maintenance supervisor, to the effect that he came into Wells ' office while the painters were there , that he 'phoned Wells to communicate that fact to him, and that at Wells' instructions he thereupon ordered them back to work Wells in his testimony did not refer to any telephone instructions having been given to the painters through Wallace Ralph Wallace was unable to explain how he instead of a regular office employee happened to make the call, he was vague as to other circumstances surrounding the making of the call , and generally by his demeanor impressed the undersigned as unworthy of belief . The undersigned does not credit his testimony. 35 As a plant guard , Curtis is outside the bargaining unit represented by the Union. He was successively called as a witness by the Board and the respondent and gave testimony that was not wholly favorable to either side. His testimony generally was marked by candor, clarity, consistency, and convincing detail. a' Moore was not employed by the respondent at the time of the hearing His testimony was marked by many contradictions, he was often evasive , and in a number of details his testimony was inconsistent with that of Wells. He testified that his direction to the men to return to work, while he was at Wells's office, was coupled with a statement that he was going to see Wells to secure raises for them , in the light of the pieceding events this state- ment, which the painters denied, appears highly improbable. Concerning Wells' alleged order to the men to return to work , he failed to mention this occurrence when first narrating the incidents leading to the discharge , and this was subsequently drawn from him by lead- 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Curtis, while testifying as a witness for the respondent, was positive that the painters at no time prior to the discharge had been ordered to return to work If, as Wells asserts, he discharged Wallace and Hite solely because of their refusal to obey his order, it would appear unreasonable for him not likewise to have discharged Curtis who was equally guilty of the same offense. Moreover, if Wallace's and Hite's insubordination to him prompted Wells to discharge them on the spot, as he claims, it is improbable that he would have first asked Moore for his recommendation as to whom he wanted discharged. Finally, if sub- ordination motivated the discharge, it is likely that the reason would have been noted on the Report of Unemployment form. For these reasons, the undersigned does not credit the testimony of Moore and Wells that Wallace and Hite refused to obey instructions to return to work, and finds, that the explanation for the discharges given by the respondent at the hearing is not sustained by the credible evidence. While the respondent's failure to support its defense on which it relied at the hearing, coupled with its disparate treatment of Wallace and Hite, active union members, and Curtis, a passive one, gives rise to a suspicion that the respondent's motive may have been discriminatory, the undersigned, nevertheless, is not persuaded on the record as a whole that no other equally reasonable infer- ence may be drawn Although, as found above, Moore was aware of Hite's and Wallace's interest in the Union, there is nothing in the record to indicate that he was hostile to them on that account. If anything, Moore's suggestion to Hite that he sign up another employee tends to repel a finding of union animus on his part. There is credible evidence, on the other hand, showing that, whereas Moore's prior rela- tions with Curtis had always been friendly, there had for some time been strong personal friction and hostility, unrelated to union activities, between Moore and the two discharged employees. According to Curtis, whom the undersigned credits, Moore had previously expressed his personal dislike of both Hite and Wallace, particularly the latter. Moore had had several prior arguments with Wallace, and on a number of earlier occasions had indicated displeasure with Hite because of actions of the latter which Moore construed as "going over his head." n The personal resentment that Moore bore to Wallace and Hite was reflected in his testimony and demeanor while on the witness stand. The painters had been seeking a conference with Wells for the purpose of expressing to him their dissatisfaction with Moore. Moore saw Wells first, and as both testified, Moore told Wells that he was having trouble with the painters and that they were away from their work. When Wells met the painters they were away from their assigned place of work, and the entire situation was then permeated with an atmosphere of hostility between the employees and their foreman. In effecting the discharge, Wells acted on Moore's recommendation. From all the circum- stances an inference may reasonably be drawn that the discharge was motivated by Moore's personal antagonism toward the discharged employees, brought to a head by Hite's supposed act of again "going over the head" of Moore, and by Wallace's -support of Hite, and also by Wells' desire to back the authority of his foreman. ing questions . The general course of his testimony indicates that he considered the spray gun incident and a number of prior differences that he had had with Wallace and Hite as the reason for the discharge 37 According to Curtis, when Moore first approached the painters on the dock on the day of the discharge his opening remarks were that "he was tired of Mr. Hite going over his head." Wallace testified that Moore was angry and indicated an intention to discharge Hite. REPUBLIC AVIATION CORPORATION 423 Nor does the transfer of Curtis to plant protection imply an inference that Curtis was favored over Hite and Wallace because of their union activities As noted above, the employees, following their discharge, went to the personnel office. There, Curtis and Hite, both of whom had previously been employed on the plant protection force, applied for transfers to their former positions. They were told by Chief Bridges that he would be willing to transfer them if they could get the approval of Wells and Reid n Thereafter, approval was granted to Curtis' application for a transfer, but not to Hite's However, it appears that Curtis' previous record as a plant guard has been a good one, while Hite had a record of having resigned following a reprimand for refusal to obey orders. Wallace testified that he, too, requested and was denied a transfer, but his testimony on this point is not credited 38 On all of the above, the undersigned finds that Ira Hite and Harry Wallace were not discharged, or refused transfer or reinstatement because of their membership in or activities on behalf of the Union. 2 Margaret Mattingly Margaret Mattingly was employed by the respondent from September 28, 1942, until October 14, 1943, when she was released On November 4, 1942, following a training period, she entered the Assembly Plant ; on November 26, 1942, she was transferred to the Parts Plant, and on August 7, 1943, to the Material Preparations Department where she remained until discharged. Her initial rate was 60 cents an hour ; thereafter she received two automatic increases of 5 cents each. She never received a merit increase. The reasons for her dis- charge given on her original Report of Unemployment were "Work too heavy, loafing, carelessness." 9p The respondent in its answer alleges that she was dis- charged for unsatisfactory work and because she was not suited for the type of work. Mattingly did not appear as a witness. The Union's records show that she signed a Union authorization card on December 24, 1942. Goldie Hawkins, who was employed with Mattingly in the Material Preparations Department, testi- fied that Mattingly frequently spoke to other employees in favor of the Union, often in the presence of leadlady Marie Barrett. However, according to Haw- kins, many employees in the department discussed the Union in Barrett's pres- ence, Mattingly no more than the others, and except for her pro-Union discussions, Mattingly did not otherwise engage in union activities." 38 As noted above, Reid, as Facilities Manager, had the plant protection force under his general charge. 19 Wallace's testimony was vague as to details , and is inconsistent with the testimony of Curtis whom the undersigned credits. Wallace testified that he went with Curtis to see Wells and Reid for a transfer, and that Curtis spoke for him Curtis testified that he did not ask for a transfer for Wallace but that on the contrary Wallace stated to Curtis and Hite that if he could not remain as a maintenance painter he did not care to remain in the respondent 's employ. 40 Shortly after Mattingly 's release , J. B Mansfield , International representative of the Union, called Charles Hodge , the respondent 's Director of Industrial Relations , and asked him if the respondent would reinstate Mattingly. After investigating the circumstances of her release, Hodge advised Mansfield that the respondent was unwilling to release her, but agreed, at Mansfield's request to change the Report of Unemployment to read : "Work too heavy , not suited to physical condition." 41 Hawkins further testified that Borah , an inspector, had reported to her a conversation with Barrett in which the latter had stated that anyone who was caught wearing a Union button in her department would be fired . Borah, a Union member, did not testify The undersigned does not accept Hawkin's uncorroborated hearsay testimony. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Mattingly first entered the Material Preparations Department, she was assigned to work as a drill press operator under Group Foreman Gerald Jack. According to Jack, Mattingly's work was unsatisfactory both as to quality and qualitity. On occasions she would fall asleep on, the job. She complained about her eyes and said she could not see well enough to do the work she was assigned. Jack had frequent occasion to criticize her work and conduct, and criticism of any kind would evoke angry remarks from Mattingly. When, about a month after she came under Jack's supervision, Mattingly spoiled about 300 parts of material by drilling the hole off the mark, Jack recommended to and secured from Clifton Sublett, his foreman, a transfer of Mattingly to the Relining Sec- tion of the Material Preparations Department According to the testimony of Sublett, Mattingly's work and conduct in the Refining Section, where she worked under the supervision of Barrett, was likewise unsatisfactory. In the Refining Section, she was assigned to burring and refining parts, an operation considered to be the simplest in the department She nevertheless, complained continuously that her work was too heavy. Mattingly's employment record shows that she is very small, 4 ft. 7 in. tall and weighing only 69-'% lbs. Mattingly also com- plained that she could not reach her work. At Sublett's suggestion, a box was built upon which she could stand to reach the vises, but she refused to use it, stating that it would place her on exhibition, and asked for another job assign- ment. She was thereafter assigned to a job burring small angles, but her pro- duction was far below average. On the day of Mattingly's discharge, a burring machine was installed which did much of the work that Mattingly had been doing. Mattingly was asked to operate the machine but she refused, stating that she did not want to break her fingernails and did not want to wear a shield over her eyes Since the machine was designed to do all the angle work, Mattingly was reassigned to her former job of burring small parts. Mattingly, while not flatly refusing, -made no real effort to perform her work, and by wrapping a towel about her gloved hand and letting the file rest lightly across the top of the burr, pointedly displayed her displeasure and reluctance to perform her job. An attempt was made to transfer her back to the Drill Press Section, but Jack, her former group foreman, refused to take her. Sub- lett then recommended to her superintendent, John L. Hopkins, that some action be taken concerning Mattingly, and upon Sublett's report, Hopkins released her Subsequently, after Mansfield requested Mattingly's reinstatement, Dr. Robert Hearn, the respondent's medical director, at Hodge's request, examined Mat- tingly's medical record, and, according to his testimony, concluded that, by reason of her physique, she was unsuited for plant work The testimony of the respondent's witnesses, narrated above, was not sub- stantially contradicted. In certain material respects it was corroborated by Hawkins, a Board witness. Hawkins testified that Mattingly had some trouble doing her work since she could not lift heavy objects, that she was slow in performing her work, and that she was usually given the easier work.42 The Board supports its discrimination claim principally upon an admission alleged to have been made by Sublett to a Union shop committee composed of Loren Lucas, Lester Sanders, John Horner, and Harold Bricker Lucas testified that on October 24, 1943, the committee called on Sublett concerning complaints that forelady Barrett had refused to permit the employees under her to wear Union buttons or join the Union; that Sublett disclaimed knowledge of the matter and called in Barrett who denied the charge ; and that after some further 42 Hawkins testified, however, that she had never observed Mattingly asleep on her job and that, Mattingly was not, as contended by the respondent , contentious in her dealings with others. d REPUBLIC AVIATION CORPORATION 425 discussions Sublett stated that the matter was "over his head" and called for Hopkins. While they were waiting for Hopkins to arrive, Sublett, according to Lucas, "in a roundabout way then made the statement that there had been a lot of confusion about the Union in his department, and that is why he discharged Mattingly. And he said she was talking pretty much for the Union all of the time and he could not tolerate that condition in his department." Bricker testified substantially to the same effect, except that it was his testimony that Sublett made this statement before Barrett appeared. Horner and Sanders did not testify. Sublett testified that he did not recall Mattingly's name having been mentioned at all, and specifically denied making the statement attributed to him by Lucas and Bricker. Sublett's denial was corroborated by Neva Whiteman, an office clerk who was present throughout the conference with the Union committee Both Lucas and Bricker were vague in their testimony and were unable to explain the circumstances which prompted Sublett to mention the alleged Mat- tingly incident at this conference. They agreed that they did not themselves initiate the discussion. They did not, according to their testimony, report the statement to Hopkins when he entered the conference or make any special point of it at the time although they were then serving as a committee investigating anti-union conduct. Lucas and Bricker were indefinite as to other details of the conference concerning which their testimony in several respects was mutually inconsistent. Lucas testified that it was his practice to note grievance matters in a note book. He produced a note book which referred to the grievance which was the primary subject of the conference, but which made no reference to the Mattingly incident. Lucas and Bricker admitted that both Sublett and Hopkins made clear to the committeemen that it was a matter of indifference to them whether employees wore Union buttons or joined the Union. ' Sublett's over-all testimony was clear and convincing and possessed that degree of candor which invites credence. About a month before the incident in question, Sublett had attended supervisory meetings at which he and other foremen were instructed by the Industrial Relations Department that they should make no comment whatsoever about the Union. That Sublett was impressed by these instructions is shown by his anxiety to have his superior, Hopkins, present at his conference with the committee. Sublett impressed the undersigned as a person of above average intelligence, and it is highly improbable that he, after receiving these instructions, would gratuitously volunteer to the Union commit- teemen that Mattingly, a person whose name had not been previously mentioned in the conversation, was released for Union activities. And it is even more im- probable that he would make such a statement in a conversation in which admit- tedly he emphasized that he was not interested in the union activities of any of the employees. Under all the circumstances, the undersigned credits Sublett's denial and finds that Sublett did not make the statement attributed to him by Lucas and Bricker. Since the reasons given by the respondent for Mattingly's discharge are reasonable and are supported by credible evidence, the undersigned finds that Margaret Mat- tingly was not discharged or refused reinstatement because of her membership in or activity on behalf of the Union or because she was engaged in concerted activities with other employees. D. Other acts of interference, restraint, and coercion; conclusions As noted above, the Board on September 29, 1943, conducted an election among employees of the respondent. On September 23, 1943, the respondent, over the signature of Mundy T. Peale, its vice-president and divisional manager, forwarded a letter to each of the eligible voters. In it the respondent advised the employees 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the forthcoming election, urged them all to vote, instructed them how voting was to be handled, and, while stating that its policy was one of "hands off," purported to answer certain questions concerning the issues and details of the election. On September 27, 1943, 2 days before the election, Peale forwarded to each of the eligible voters a second letter, a copy of which is set forth below as Appendix A. Peale testified that his primary purpose in writing these letters was to answer questions which had been asked of him by employees concerning the forthcoming election. It is apparent, however, that the purpose of the letter of September 27 was to urge the employees to vote against the unions and to influence the result of the election. The import of the September. 27 letter is clear. The letter advises the employees that war-time regulations and require- ments have limited the field of collective bargaining, and that bargaining through a union would not gain for employees economic advantages in hours, wages, and working conditions. The letter warns the employees that representation would prove costly to them ; disparages the unions by indicating, through thinly veiled suggestive questions, that unions are selfish and not interested in the welfare of employees but only in dues; and, by contrasting "unknown benefits" with certain "concrete benefits" already available to employees, suggests that the employees might be deprived of available benefits if one of the unions won the election. The letter throughout in effect poses the election issue as a contest between the re- spondent and the union for the allegiance of the employees Whether employees select a bargain representative or what representative they select is 'a matter of exclusive concern to employees, since it is their agent and not the agent of the employer who is being chosen. "While management may have a right under some circumstances to express its opinion as to a Union . . such right certainly does not extend to the point where it becomes a participant in a contest to which it is not a party." 93 It is unnecessary to decide whether the letter, standing alone, is coercive. Unlike the American Tube Bending case' in which there was a letter in many respects similar to the letter in the instant case, the respondent's conduct here was not confined to "the letter and speech together with the occasion . . . a coming election . . . on which they were uttered," conduct which, standing alone, the court held not to be violative of the Act. Here the respondent engaged in other conduct violative of Section 8 (1) and (3) of the Act; the letter was part of the respondent's whole course of conduct, and, as such, was violative of Section 8 (1) of the Act" The undersigned concludes and finds that by its discharge and refusal to rein- state Oscar Finch, Walter R. Hull, and Velia C. Ewers because of their member- ship and activities on behalf of the Union, the respondent discriminated in regard to their hire and tenure of employment thereby discouraging membership in the Union, and that by said conduct as well as by the anti-union statements of Spruell to Finch, Arbuthnot and Hull, by the respondent's letter of September 27, 1943, and by the totality of its conduct, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 43 Reliance Mfg. Co. v. N. L R B , 125 F (2d) 311 (C. C A 7) , see also N. L R B. v Sunbeam Electric Mfg. Co, 133 F. (2d) 856 ( C. C. A. 7) *4 N. L. R B v. American Tube Bending Co., 134 F. (2d) 993 (C C A 2), cert denied 320 U. S 768 45 N. L. R B v M. E Blatt Company, 143 F ( 2d) 268 (C C. A 3), decided June 9, 1944, enf'g 38 N. L. R B. 1210, and 47 N. L. R B. 1055 N. L. R B. v. Trojan Powder Co., 135 F. (2d) 337 (C. C. A. 3), enf'g 41 N L. R. B. 1308, cert den 320 U. S. 813 ; Matter of Van Raalte Company, Inc., 55 N. L R B 146; Matter of American Laundry Machinery Co , 57 N. L R B 25. REPUBLIC AVIATION CORPORATION 427 The complaint alleges that the respondent engaged in unfair labor practices by questioning its employees concerning their union activities and affiliations. The undersigned finds that there is no substantial evidence to support that allegation of the complaint, and will recommend that said allegations be dismissed. 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 ob- structing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in certain unfair labor practices, the undersigned will recommend that it cease and desist there- from and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the respondent discriminated in regard to the hire and tenure of employment of Oscar Finch and Walter R. Hull on July 30, 1943, and Velia C. Ewers on October 28, 1943. It will be recommended that the respondent reinstate them to their former or substantially equivalent positions without prejudice to their former rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to the amount be would have earned as wages during the period from the date of discrimination to the date of the offer of reinstatement, less his net earnings during said period 46 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Automobile, Aircraft, & Agricultural Implement Workers 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 Oscar Finch, Walter R. Hull, and Velia C. Ewers, thereby discouraging membership in United Automobile, Aircraft, & Agricultural Implement Workers of America (UAW-C. I. 0.), the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 46 By "net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L R . B 440. Monies received for work performed upon Federal , State, county , municipal , or other work-relief projects shall be considered as earnings See Republic Steel Corporation v N. L. R. B , 311 U. S. 7. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The respondent by discharging Harry H. Wallace, Ira G. Hite, and Margaret L. Mattingly has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (1) of the Act insofar as the complaint alleges it engaged in unfair labor practices by questioning its employees concerning their union activities and affiliations. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that the respondent, Republic Aviation Corporation, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in United Automobile, Aircraft, & Agricultural Implement Workers of America (UAW-CIO), or any other labor organization of its employees, by discharging, laying off, or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment, or any term or condition of their employment; (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 United Automobile, Aircraft, & Agricultural Implement Workers of America (UAW-CIO), or any other labor organization, to bargain col- lectively, through respresentatives of their own choosing and to engage in con- certed activities for the purpose of collective bargaining, or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effect- uate the policies of the Act : (a) Offer to Oscar Finch, Walter R. Hull, and Velia C. Ewers, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges ; (b) Make whole Oscar Finch, Walter R. Hull, and Velia C. Ewers, and each of them, for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to that which they normally would have earned as wages from the date of their discharge to the date of the respondent's offer of reinstatement, less their net earnings °7 during said period ; (c) Post immediately in conspicuous places in its Indiana Division in Evans- ville, Indiana. and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating : (1) that the respon- dent will not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 (a) and (b) of these recommendations; (2) that the re- spondent will take the affirmative action set forth in paragraph 2 (a) and (b) of these recommendations; and '(3) that the respondent's employees are free to be- come or remain members of United Automobile, Aircraft, & Agricultural Imple- ment Workers of America (UAW-CIO) and that the respondent will not discrim- inate against any employees because of membership or activity in that or any other labor organization ; (d) Notify the Regional Director for the Fourteenth Region in writing within ten (10) days from the receipt 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 receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National 41 See footnote 46, supra. REPUBLIC AVIATION CORPORATION 429 Labor Relations Board issue an order requiring the respondent to take the action aforesaid. It is further recommended that the complaint, insofar as it alleges that the respondent discriminated in regard to the hire and tenure of employment of Ira G. Hite,'Harry H. Wallace and Margaret L Mattingly within the meaning of Sec- tion 8 (3) of the Act and engaged in unfair labor practices by questioning its employees concerning their union activities and affiliations, be dismissed. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 26, 1943, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Roch- ambeau Building, Washington, 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 tincluding rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the fling of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy there- of upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing within ten (10) days from the date of the order transferring the case to the Board. Dated September 28, 1944. ARTHUR LEFF Trial Examiner. APPENDIX A REPUBLIC AVIATION CORPORATION Indiana Division Evansville, Indiana September 27, 1943. Fellow Raider : On Wednesday, September 29th, you can, if you want to, take advantage of one of those liberties you enjoy as a free American. You can go to a voting place right in the plant and, by secret ballot, you can say how you want our employee relations to be handled in the future. You can say whether you want to have a union represent you in your relations with the management, or whether you think the present setup is satisfactory from your point of view. If you want a union to represent you, you have a choice between two unions on the ballot. Each of those unions has its own ideas apparently on how those relations should be handled If you do not want a union, you can vote for neither by putting an X in the center square under Neither. I have made it clear to you, and all members of the supervisory staff have been so instructed, that no mentber of management is to try to tell you how to vote. I have also made it clear to you that any Raider has the right either to join or not join a union, as he or she sees fit and that the company will respect that right. No representative of management may tell you what to do on these points. Your decision should be your own free choice. I do not know what either of these unions propose to try to do for you since no "campaign promises" seem to have been made up until the time this is written. Any union has three things to offer to its members-hours, wages and working conditions. To avoid any misunderstanding, let me say on the matter of hours 639678-45-vol. 61-29 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that two things must determine the length of our work week. Those two things are the requirements of our customer, the Army, and the available supply of man power. So long as Thunderbolts are so badly needed abroad, we must maintain our present work week. WAGES On the subject of wages, I told you it was the policy of the company to see that its rates of pay compare favorably with the rest of the aircraft industry. As a matter of fact, our rates are higher than those established last April for the whole Southern California aircraft industry by the National War Labor Board The War Labor Board is a government agency in Washington which regulates and controls all wages Under the President's "hold-the-line" order the War Labor Board can approve general wage increases only in certain cases, as follows : 1. To meet the rise in the cost of living. 2. To correct inequities in wages between plants. 3. To correct inequities in wages within a plant. 4. To correct very low rates-under $.40 per hour. The first situation is known as the 15% "Little Steel" formula. If a company did not make general wage increases between January 1941 and September 1942 equal to 15%, it may, with War Labor Board approval, make a general increase to bring the total amount of such increases up to 15%. The 15% represents the increase in the cost of living between January, 1941 and June, 1942. This plant was not in operation at that time so this cannot apply to us. The Company took this increase in living costs into consideration when it set its wage scale. On the second point, inequities between plants mean differences in rates between plants in the same area. The way the War Labor Board deals with cases of differences between plants in a city where inequities are claimed, is not to take the highest wages as a yardstick to bring all the others up to that. That would be contrary to the intent of the anti-inflation act The Board makes'wage surveys and fixes minimum rates for jobs which are neither the highest nor the lowest it finds in an area. Nothing like that has yet been done for Evansville. If it should be done and the rates so fixed were higher than ours, we would at once apply for approval to adopt them. We doubt if any rates the Board might set up would be higher than our present rates however. So far as inequities within the plant, all differences in rates between jobs within our plant have been fixed after careful study of every job in terms of skill, effort, responsibility and working conditions The last situation-to correct very low rates-involves rates below $ 40 per hour and that does not apply to us. I have given you these facts ht some length, so that there may be no mis- understanding or disappointment on your part. The simple fact is that war-time regulations and requirements have limited the field of collective bargaining on hours and wages You are entitled to understand these things. Working conditions cover a wide field. I have already told you that it is our policy to maintain the best possible working conditions. We always welcome suggestions which can improve such conditions. I might remind you of your rest periods, recently lengthened at the suggestion of the Victory Council, of the new cafeteria to be built as instances of our intention to make this a good place to work. OTHER POINTS There are some other points to which you should give some thought in making up your mind how to vote. After a union has been chosen as the bargaining REPUBLIC AVIATION CORPORATION 431 agent, almost always it asks the company for a "check-off," for "maintenance of membership" or for a "closed shop," or other similar provisions Do you know what these things mean? Do you know how they would affect you? Do you think you would be in favor of them? These are things you have a right to know about and understand. Has anyone explained them to you? You might ask yourself to- what kind of leadership you wish to entrust your future relations with the company Is it selfish or isn't it? Why. do strangers become interested in your welfare? Who are they? Are they really interested in your personal welfare or are they more interested in dues? In short, what more can they do for you than you can do for yourself'? These are the same kind of questions you would ask yourself before you made any personal decision like buying a house or a car. What benefits will I get out of it? Weigh those unknown benefits alongside the concrete benefits your being a Raider has automatically brought you-your paid vacation-your 5 days' annual sick leave-your 10-minute rest periods-your annual bonus-your holidays with pay when production schedules permit-your merit increases-your group in- surance-leaves of absence without break in service. These are all concrete evidences of our good faith when I say we want this to be a good place to work Let me repeat again, the company hopes this will be an orderly election with just as little loss of time as possible Whatever the decision, we should like to see it represent the wishes of such a large majority of you all that there can't be the slightest question but that the decision was really the will of the majority. We do not want any hard feelings as a result of this election. COMPANY POLICIES Finally let me repeat the policies I told you the company stands for and which I shall follow as a guide in all our employee relations : 1 Fair and courteous treatment of every employee 2. Promotion from within the organization on the basis of merit. 3. Maintenance of the best possible working conditions 4 Prompt and fair handling of all grievances. 5 Rates of pay which compare favorably with other aircraft plants. 6. Equal pay for equal work on the basis of duties and responsibilities We have a job, an important job to do together. Those of us who are fortunate to be making Thunderbolts, are making just as direct a contribution to winning the war as any soldier on our far-flung battle lines Let's not let anything inter- fere with that. Whatever the outcome of the election, let's all look forward to continuing and increasing the same friendly relations which we have been building up Then, and only then, can we be proud of our part when the boys come home and ask us what did we do to help win the war So VOTE Wednesday, Fellow Raider. VOTE for what you think is best for yourself, for all of us, for the boys in far-off places who need our Thunderbolts, who are counting on us to make these schedules Vote just the way you feel about this matter, so you can have it just the way yon want it. Let me repeat, we have an important job to do together which will take all the cooperation, mutual understanding, patience and persistence that we can give it. Whatever the decision of the majority may be Wednesday, I am looking forward to working with you all on a basis of mutual confidence and friendship. Sincerely yours, (S) MUNDY I. PEALE, Vice-President and Divisional Manager