Industrial Metal Fabricators, Inc.

In the Matter Of INDUSTRIAL METAL FABRICATORS , INC. and AMALGAM- ATED LOCAL 453, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, U. A. W.-C. I. O. Case No. 13-0-2410.-Decided April 12,1946 DECISION AND ORDER On August 29, 1945, the Trial Examiner issued his Intermediate Report and on September 12, 1945, a Correction of the Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. No request was made for oral argument before the Board at Washington, D. C., and none was held. The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the exceptions, addi- tions, and modifications 1 hereinafter set forth. 1. We do not agree with the Trial Examiner's finding that the dis- charge of Carl R. Davis constituted a violation of the Act. The respondent contends that Davis was discharged because of un- warranted absenteeism and tardiness, which culminated in his late arrival at a meeting of the Labor Management Committee on February 5, 1945. In rejecting this contention, the Trial Examiner relies, ' Certain minor inaccuracies appear in the Intermediate Report, which we hereby cor- rect. In the section entitled "A. Origin of the Union" and in the section entitled "Con- clusions as to the Committee " the date of the discharge of Joseph Vasek and Joseph Swider appears as May 26, 1944. We find that the date should be May 24 , 1944 In footnote 6 of the Intermediate Report it is stated that certain findings are based upon the uncontradicted testimony of Vasek , Stauffer, and Losenicky . We find that the foot- note should state that the findings are based upon the unc6ntradicted testimony of Vasek and Losenicky 67 N L. R B., No. 38. 270 INDUSTRIAL METAL FABRICATORS, INC. 271 among other things, upon his finding that the respondent treated Davis in a manner different from that in which it treated employee Kidd, who was also late to the meeting of the Labor Management Committee. This finding is based, in part, upon the respondent's failure to show that Kidd's general attendance record was better than that of Davis. According to our view, however, the burden was not upon the respond- ent to make such a showing. Since it was shown that Davis, in addi- tion to arriving late at the meeting of the Labor Management Com- mittee, had been absent and tardy on numerous earlier occasions, we do not think that counsel for the Board established a prima facie case of disparate treatment merely by showing that Davis was, and Kidd was not, discharged upon arriving late at the meeting. Omit- ting the finding of disparate treatment from our consideration, we are of the opinion that the remaining facts do not warrant a finding of discrimination with respect to the discharge of Davis. Although the case is not entirely free from doubt, we find that the respondent has not violated Section 8 (3) of the Act by its discharge of Davis. 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, Industrial Metal Fabricators, Inc., Chicago, Illinois, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of the Labor Management Committee as a labor organization, or with the formation or administration of any other labor organization of its employees, and from contributing support to the Labor Management Committee as a labor organization, or to any other labor organization of its em- ployees; (b) Recognizing the Labor Management Committee, or any succes- sor thereto, as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment; (c) Discouraging membership in Amalgamated Local 453, United Automobile, Aircraft & Agricultural Implement Workers of America, C. I. 0., or in any other labor organization of its employees, by dis- charging or refusing to reinstate any of its employees or by otherwise discriminating in regard to the hire and tenure of their employment; (d) 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 Amalgamated Local 453, United Automobile, Aircraft & Agricultural Implement Workers of America, 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. 1. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted ac- tivities, 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) Withdraw all recognition from and completely disestablish the Labor Management Committee as the representative of any of its em- ployees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (b) Offer to Joseph Vasek and Joseph Swider immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; (c) Make whole Joseph Vasek and Joseph Swider for any loss of pay they may have suffered by reason of the respondent's discrimina- tion against them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstate- ment, less his net earnings during said period; (d) Post at its plant at Chicago, Illinois, copies of the notice at- tached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places. including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Thirteenth Region in writ- ing, 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 has discriminated against James Moore and Carl R. Davis, within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: We hereby disestablish the Labor Management Committee as the representative of any of our employees for the purpose of INDUSTRIAL METAL FABRICATORS, INC. 273 dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the above purposes. We will not dominate or interfere with the formation or admin- istration of any labor organization or contribute financial or other support to it. We will offer to the employees named below immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to any seniority or other rights or priv- ileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Joseph Vasek Joseph Swider 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 Amalgamated Local 453, United Automobile, Aircraft & Agricultural Implement Workers of America, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection. All our employees are free to become or remain members of this union, or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. INDUSTRIAL METAL FABRICATORS, INC., 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. Gustaf B . Erickson, for the Board. Douma, Scheib & Powell, by Thomas J. Downs and John D. O'Connor, of Chicago, Ill., for the respondent. Mr Sam Mariani, of Chicago, III , for the Union. 692148-46-vol 67--19 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD STATEMENT OF THE CASE Upon a second amended charge filed on April 12, 1945, by Amalgamated Local 453, United Automobile, Aircraft & Agricultural Implement Workers of America, U. A. W.-C. I. 0, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated May 11, 1945, against Industrial Metal Fabricators, Inc., herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act With respect to the unfair labor practices, the complaint as amended' alleged, in substance, that the respondent (1) initiated, interfered with, and dominated the formation and administration of Labor Management Committee, hereinafter called the Committee, and contributed financial and other support thereto ; (2) on or about May 24, 1944, discharged Joseph Vasek, Joseph Swider, and James Moore, and on or about February 5, 1945, discharged Carl Davis, and has since failed and refused to reinstate them, because they joined and assisted the union and engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid or protection; and (3) warned its employees against joining or affiliating themselves with the Union. Copies of the complaint, accompanied by notice of hearing thereon, were duly served upon the respondent, the Union, and the Committee. On May 22, the respondent filed an answer admitting some of the allegations of the complaint but denying that it had engaged in any unfair labor practices. Pursuant to notice, a hearing was convened on May 22, 1945, at Chicago, Illi- nois, before Frederic Parkes, a Trial Examiner duly appointed by the Chief Trial Examiner. No evidence was adduced and on motion of the respondent the hearing was continued to May 31, on which date, and on June 1, 2, 4, and 5, a further hearing was held before Horace A. Ruckel, the undersigned Trial Ex- atniner duly appointed by the Chief Trial Examiner to serve in place and stead of Frederic Parkes. The Board and the respondent were represented by counsel and the Union by its president. No representative of the Committee was present. All parties present participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and ,to intro- duce evidence bearing upon the issues. At the conclusion of the Board's case the respondent moved to dismiss the complaint, and moved that the respondent be given 2 weeks in which to prepare its defense. The undersigned denied both motions. Upon the conclusion of the hearing the undersigned advised the parties that they might argue orally before the Trial Examiner and that they might request the privilege of filing briefs with the Trial Examiner. The Board and the respondent participated in oral argument. No request to file briefs was made. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the foIIowing : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is an Illinois corporation having its principal place of business at Chicago, Illinois, where it operates four plants engaged in the manufacture ' On May 31, during the hearing, the complaint was amended to Include the name of James Moore as an employee alleged to have been discriminatorily discharged. • INDUSTRIAL METAL FABRICATORS, INC. 275 of naval landing craft, pontoons, tank parts, and Diesel engine parts. During the year 1944 the respondent purchased and caused to be transported to its plants in Chicago, Illinois, raw materials, including sheet steel, floor plates, and oxygen welding rods, amounting to more than $1,000,000, about 80 percent of which was shipped to it from outside the State of Illinois. During the same period the respondent sold and transported finished products valued at more than $1,000,000, all of which was shipped to points outside the State of Illinois. This case is concerned only with events occurring at the respondent's plant located at 63rd and Ashland Streets, Chicago. Illinois, known as the Ashland Plant. II. THE ORGANIZATIONS INVOLVED Amalgamated Local 453, United Automobile, Aircraft & Agricultural Imple- ment Workers of America, affiliated with the Congress of Industrial Organiza- tions, is a labor organization admitting employees of the respondent to membership. The Committee is a labor organization of the respondent's employees at the Ashland Plant, III. THE UNFAIR LABOR PRACTICES A. Origin of the Union During the latter part of May , 1944, Joseph Vasek. Joseph Swider, and John Hermann, three welders, complained to Willian, Hensen , then paint superintend- ent, that paint fumes were making them ill , and asked for a half day off from work. Hensen granted their request , and the three men employed a part of their time in calling at the Chicago office of the Division of Factory and Labor Inspection of the State of Illinois , where they registered their complaint as to the painting fumes. Upon their return to the plant , Hensen advised Vasek that he had been informed that the three employees hfd made this complaint. Two or three days later, Vasek and Swider, but not Hermann , called at the Union's office in Chicago , and discussed the organization of the respondent's employees with Sam Marian! , the Union's president Mariani gave Vasek and Swider a number of membership application cards which they distributed to fellow em- ployees in the plant and at the entrance to the plant. A few days later, on May 26, Vasek, Swider, and James Moore, a crane operator , were discharged under cir- cumstances hereinafter related. During the first few days in June, the respond- ent took the first steps in the formation of the Committee. B The Committee Announcement of the formation of the Committee was made by Superintendent Hensen who called meetings on the floor of the plant, attended by from 40 to 50 employees. At these meetings Hensen stated that the purpose of the Committee would be to "iron out some of the grievances and differences" existing between the respondent and the employees. In response to Hensen's suggestion, a num- ber of nominations were made for employee representatives on the Committee, which Hensen posted on a bulletin board. At approximately the same time the respondent put up the following notice : LABOR-MANAGEMENT COMMITTEE In order that there shall be cooperation between the company and the employees in our "ASHLAND PLANT" there is hereby established a Labor- Management Committee whose duty it shall be to coordinate activities for 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the production of materials for the prosecution of the war, to consider and determine complaints and suggestions of employees and management and otherwise do whatever is necessary to have a harmonious and friendly em- ployer-employee relationship. There shall be one employee-member of the Committee elected for each fifty (50) employees in the Plant. Employee-members shall serve for six (6) months or until their successors are elected and qualified. Superintend- ents, foremen and guards shall not be eligible to vote. Each department of the Plant shall be represented on the Committee. The election of the original employee-members of the Committee shall be held JUNE 9th, 1944, between 4 P. M. and 6 P. M Elections thereafter shall be held on the first Monday in December and June. Management-members of the Committee shall be R. L. Reineman, G. R. Scheib and H M. Reineman. Meetings of the Committee shall be held at the Executive Offices of the Company in the Field Building, Chicago, Illinois, each Monday morning at 8 o'clock. The employee-members of the Committee shall be paid at their regular rates for time consumed in attending meetings. Joint collaboration of employees and management will result in a more forceful contribution to the war effort and a more forward-looking plan for the post-war era. The employee representatives elected on June 9 shortly thereafter held their first meeting with representatives of the respondent. The record is not clear as to the further activities of the Committee from June, 1944, to January, 1945. Carl Davis, who was defeated as a candidate for representative in the June elec- tion, but who was elected the following January, testified that the Committee, as it was constituted in June, 1944, ceased functoriing in August or September. Davis' testimony in this respect is not contradicted by other evidence, and the undersigned finds it to be in accord with the facts 2 The Committee was revived, however, in January, 1945 Davis' part in this revival and his subsequent discharge are hereinafter discussed. The new em- ployee members of the Committee were elected on January 17, and the first meeting took place on January 22. The minutes of the Committee meetings from January 22, 1945, to the date of the hearing, are in evidence. They reveal that various grievances were taken up in meetings of the Committee and adjusted. Barrish, who was secretary, testified without contradiction that various other complaints and grievances pertaining to working conditions, which were not recorded in the minutes, were nevertheless discussed at Committee meetings. Although the wages of various employees were discussed and adjusted, it was the custom not to make reference to them in the minutes Barrish, on cross-examination, testified as follows on this point and a stipulation was reached : Q. Now, wasn't it the policy of the committee not to put into the minutes matters concerning wages of individuals because of the fact that the minutes were posted and everyone else in the plant would know what someone else was making? 2 Hensen was not called as a witness, the respondent's counsel stating that be was no longer employed by the respondent and that his whereabouts were unknown. No ex- planation was given, however, for the failure to call R. L. Reineman, G. It. Scheib, or H. M. Reineman, the respondent's representatives on the Committee. Davis' testimony, credited above, receives some support from that of Frank Barrish, elected as an employee representative at the January election and who became secretary of the Committee. Barrish testified that no minutes of previous meetings of the Committee were turned over to him, which Implies that the continuity of the Committee was interrupted. INDUSTRIAL METAL FABRICATORS, INC. 277 A. Yes, sir. Q. Was that the reason that wages as such were not put in the minutes? A. Yes, sir. Trial Examiner RucxEL. And were there other instances of suggested wage increases aside from this man's, which were discussed? The WITNESS. Yes, Sir. Trial Examiner RUCKEL. Would you be able to say approximately how many during the five months that you were secretary? Mr DowNS. I think we could agree that probably wages were discussed, of numerous employees from time to time at committee meetings. I think that would be one of the natural things they would discuss. Trial Examiner RUCKEL. Is that stipulated to? Mr. ExlCxsoN. Yes. Trial Examiner RucxEL. And as a rule they were not included in the minutes either? The WITNESS. That is right. Not only did the Committee undertake the adjustment of grievances and negoti- ate wage increases for employees, the typical functions of a labor organization, but an examination of the record, particularly the minutes of Committee meetings from January through May, 1945, fails to reveal that any substantial or system- atic consideration was given to increasing production, the normal function of a labor management committee. That the respondent, in fact, viewed even the weekly meetings of the Committee as constituting an impediment rather than an aid to production, is evidenced by the fact that on April 4, 1945, when called upon by the Navy to increase the production of pontoons, the respondent, acting unilaterally, and, so far as the record reveals, without consulting the "labor" members of the Committee, suspended meetings of the Committee for 2 weeks. The respondent's announcement on that occasion read as follows : Labor Management Committee: Ashland Plant Employees : The Navy department has requested our company to increase pontoon production as much as possible commencing today We all know that the pontoon is one of the most important items in the war program. There will be no Labor Management meetings for the next two weeks, so that we may devote all of our efforts and manpower to the production of pontoons. The war in Europe and the Southwest Pacific has progressed so rapidly, that the demand for pontoons has been doubled. I hope that every employee will make it his personal responsibility to make every minute count and cut our absenteeism to a minimum. R. L. REINEMAN. That the activities of the Committee had little, if anything, to do with matters of production, is further evidenced by the fact that neither the minutes of the next meeting of the Committee, held on April 23,8 nor those of any subsequent meeting, so much as mention the respondent's attempt to increase production as the result of the Navy's request. This failure is difficult to understand if, as the respondent contends, the Committee was a bona fide labor-management committee. The discussion at the meeting of April 23, so far as is revealed by the minutes, 'The two weekly meetings which were done away with by the respondent were those for April 9 and 16. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was confined to such subjects as vacations, cafeteria hours, and the availability of Welder's Eye Lotion. That the Committee itself considered that its principal, if not its only, function consisted of handling employee complaints and grievances, is a fair inference to be drawn from the concluding paragraph of the minutes of the meeting of May 14: The subject of the continuance, value and fairness of the Labor Manage- ment Committee was discussed and it is the opinion that the committee should be continued and that it has been run fairly and that the employees get a fair shake and more righteous treatment through its operations. Conclusions as to the Committee There is no evidence that the respondent had considered the formation of a labor-management committee prior to May, 1944. In that month, Vasek and Swider took the first steps looking toward the organization of the respondent's employees into the Union Their discharge, hereinafter found to be because of their union activity, followed on May 26 Within a week thereafter the respond- ent announced the formation of the Committee. The undersigned finds that the formation was occasioned by the appearance of the Union in the plant, and was intended, together with the discharge of Vasek and Swider, to defeat the attempts of the employees at self-organization. The Committee had little else than its name to characterize it as a labor- management committee, or to distinguish it from any other company formed and dominated labor organization. Hensen, upon convening the first meetings of employees to nominate candidates as employee representatives on the Committee, made no reference to increasing production-the primary object of a labor-man- agement committee-as being the purpose of the proposed Committee. Instead, he announced that its purpose would be to adjust the grievances of employees, and the "differences" existing between them and management-one of the char- acteristic functions of a labor organization Although the respondent's formal announcement of the June election stated that one of the purposes of the Committee would be to "coordinate activities for the production of materials for the prosecution of the war," there is no evidence that the Committee, after its formation, so much as discussed coordinating or increasing production. The minutes from January to May, 1945, are free from any reference to any production problem, aside from general observations that absenteeism, should be reduced. On the contrary, in April, 1945, when faced with a specific program of increasing production, the respondent found it necessary to suspend temporarily the activities of the Committee. The respondent thus, as a preliminary step to increasing production, dispensed with the activities of the very organization which it contends was formed for the purpose of promoting production. Obviously, neither the respondent nor the employee members of the Committee regarded that organization as a genuine labor-management committee. Nor does the undersigned. He believes it clear, and finds, that the Committee is a com- pany dominated labor organization, the purpose of which is to defeat and dis- courage the attempts of the respondent's employees at self-organization. The undersigned finds that in forming and maintaining the Committee, the respond- ent thereby interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. INDUSTRIAL METAL FABRICATORS, INC. C. The discharges 1. Joseph Vasek and Joseph Sivider Vasek was first employed by the respondent in February or March, 1943, and Swider about the following May, as welders. At the time of their discharge on May 24, 1944, the two men were among a group of 10 welders working in five teams, under the foremanship of Vasco Matteucci . Vasek's partner was Tucker, and Swider's, Dale. It has been found above that Vasek and Swider made the first contact with the Union, and obtained membership application cards which they distributed among their fellow employees. Swider, who distributed cards in the locker room before starting to work, also customarily left a supply of them on top of his lunch box at his place of work where employees could pick them up. Previously, in the fall of 1943, Dan Vega, then welding foreman , called Vasek to his office, where Militec, works manager, referring to two other welders, Stauffer and Losenicky, who had been discharged,' asked Vasek who else in the plant other than those two were active in union organization. Vasek refused to answer, saying that he was "not going to be a stool pigeon for anybody."' Vega told Stauffer and Losenicky that they had been "pointed out" by other em- ployees as being active in promoting the Union .' It is a reasonable inference, and the undersigned finds, that the respondent was aware of the activity of both Vasek and Swider in behalf of the Union. On the morning of May 24, Matteucci told Vasek and Swider to report to Hensen, who informed them that they were discharged. Although requested, Hensen refused to give Vasek any reason for his discharge, saying that the re- spondent was not obligated to do so. Swider testified, however, and the under- signed finds, that when he asked Heusen if he was discharged because of the Union , Hensen replied, "Maybe," adding that the respondent was not required to state a reason. At the time of the discharges , the teams of which Vasek and Swider were members were welding corner straps on pontoons . Each pontoon was fitted with eight corner straps , and it was the requirement that each welder on a team weld four straps. Matteucci testified that Vasek and Swider were dis- charged for "stalling and lack of cooperation," and that whereas other teams of welders averaged a production of 7 or 8 pontoons a day, the teams of which Vasek and Swider were members averaged only 5 or 6 per day. According to Matteucci, this had been the situation for some time . Matteucci further testi- fied as follows : Q. (By Trial Examiner Rucican.) You testified over a considerable pe- riod of time these two men were lacking in cooperation? A. They were. Q. On their job, is that correct? ' In October 1943, the respondent, the Board, and United Brotherhood of Welders, Cutters, & Helpers of America, entered into an agreement in settlement of Industrial Metal Fabricators, Inc., Case No 13-C-2242. Pursuant to this agreement, Stauffer and Losenicky were given reinstatement and paid a sum of money equivalent to the net wages they had lost by reason of their discharge, and the respondent posted a notice stating that it would not interfere with, restrain, or coerce its activities in their attempts at self-organization 5 Moore testified without contradiction, and the undersigned finds, that Militec and Vega made a similar request of him at the time Stauffer and Losenicky were discharged, and that he made a similar reply. "These findings are based upon the uncontradicted testimony of Vasek, Stauffer, and Losenicky. Neither Vega nor Militec was called as a witness. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. They were. Q. And that their production averaged only about six pontoons a day? A. That is right. Q. Now, what was it, what particular lack of cooperation or what par- ticular factor led you to discharge them at the time they were discharged in May, 1944? A. I base that on the holding up of essential war work we were doing in the plant. Q. But they had been doing that, according to your testimony, for some time. Was there something specific which occurred the same day they were discharged, or immediately before their discharge, which led you to say, "Well, this is the end. I am discharging them.' "Well, this is the end. I am discharging them." way. I tried playing ball with the boys. Q. Was there any particular request made of them or any particular order given them, failure to comply with which led you to your discharging them? A. Well, time and time again, as I had approached the men and asked for a better show, as far as production was concerned, they would go as far as to promise and say they would try, and naturally I was busy during the day, and I couldn't very well stay over the men and demand that they keep steady all day long. Q. But you still haven't answered my question. Was there some specific request or some specific failure on their part that was the final straw which broke the camel's back , as it were? Mr. DowNs. Your Honor, I think he has answered that. He kept asking and asking them and ran out of patience, the end of his rope. Q. (By Trial Examiner RUCKEL.) What was it? You mean that you simply got tired ultimately of their only getting out six a day? A. That is right, Q. Was there any specific request in any specific manner (sic) or any specific direction which you had given with which they failed and refused to comply on the date of their discharge, or shortly before their discharge, which led you to discharge them? A. No, only the fact that they didn't want to improve. When Vasek and Swider were discharged, Tucker and Dale were retained. Matteucci testified as follows as to his reasons for this selection : Q. With respect to these two pairs, Vasek and Swider, and their partners, is it your testimony that Vasek and Swider were always behind their part- ners in completion of the eight corners of the pontoon? A. No, they were not. The fact is I would say they were the better of the two. Joe Swider was-I mean, Joe Vasek was a very good welder and a fast one, too. Q. How about Vasek? A. Vasek likewise. Q. Would you say that each was better than his partner? A. I wouldn't say better, but they were as good as any of the other welders on the job, if not better. Vasek was one of the oldest men on the job. Q. And as rapid? A. And as rapid. Q. And who was Vasek's partner? A. Tucker. Tucker was also fast and a good welder. Q And Swider's partner was who? A. Dale. INDUSTRIAL METAL FABRICATORS, INC. 281 Q Well, if they were fast and good welders, why was it they only finished an average of six pontoons a day? A. That is the one thing I came to the conclusion I couldn' t understand. Q. What did they do, lay off some time between corners? A. It could be. They made a habit of walking away from the job. Q Who is they now? A Well, those two teams in particular. Q. All four of them? A. All four welders, when the job was completed, or when the welding was completed on this particular pontoon, and there was always a little waiting time in the craning schedule for making the change of taking out the pontoon that was completely welded and to replace with another pontoon that will have to have the same welding done. Q. What is the welder supposed to do during this period of time? A. He is not supposed to do anything. Q. He is supposed to wait right there? A. That is right. Q. What do these four men do? A. I wouldn't say they did it continuously, but they did make a special habit of walking away, walking in the washrooms. Q. How would that delay the number of pontoons they put out? A. By on occasions that I have witnessed they would wait until the crane got there, pulled the completed pontoon out of the positioner, and while the crane was making the lifts to replace a new pontoon in the positioner, they would walk away, whereas they would have had plenty of time to do whatever they wanted to do in the time they were waiting for the crane to come over and make the change. Q. Should they have dune any work during this period the change was being made? A. No. It is more or less a rest period, if you want to call it that. It allows them a good length-well, a good ten minutes time to do whatever they want. On some occasions they might have to wait longer and on some occasions they have hardly any waiting time at all. It all depends on where the crane was. Q. During this rest period are they supposed to stay there? A. There wasn't any specific orders told to the men that they were to stay at their position at all times. There was no one there that bawled them out or harped on them whenever they did walk away from their jobs. Q. They were permitted to walk away then? A They were. Q And they were supposed to be back when? A. When the new pontoon was in the positioner. Q The position for welding? A. The position for welding. Q. It is your testimony that the pontoon would be in position for welding and waiting for them to get back? A. That is right. Q That applies to all four of them? That applies to, let's say, all the teams in the shop? A. But these men never did it. Q They were all sometimes slow about getting back, but these four men were slower than the others? A. That is right. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. More consistently? A. That is right. Matteucci further testified in partial explanation of retaining Dale, that he was a newer employee than Swider, and that he might improve if Swider were let go. There is no explanation in the record, however, of why Tucker was kept. Asked what Hensen said about Tucker, Matteucci stated that Hensen "didn't have anything against Tucker, or didn't say anything against Tucker or about Tucker." Conclusion Crediting the testimony of Mateucci 7 that Vasek's and Swider's teams were below the average in the number of pontoons produced in a day, there still ap- pears no reason connected with their work for their discharge on May 21. So far as the record shows, and particularly so far as the testimony of Matteucci, their foreman, reveals, the situation on that day with respect to the work of Vasek and Swider was no different than it had been for some time previously. The only new element was that Vasek and Swider had, only a few days previ- ously, undertaken to organize the respondent's employees into the Union. That it was this activity on the part of Vasek and Swider which motivated their discharge, rather than the quantity of their production, is evidenced by the fact, among others, that Tucker and Dale were retained in the respondent's employ, although they bore a responsibility for the work of their teams equal to that borne by Vasek and Swider. Hensen's admission that the respondent might have discharged Swider for his union activity, coupled with his failure to assign any other reason when asked by Swider to do so, is further evidence that the discharge of both Swider and Vasek was because of their union activity. The undersigned finds that the respondent on May 24, 1945, discharged Joseph Vasek and Joseph Swider because of their activity on behalf of the Union, and thereby discouraged membership in the Union and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. James Moore Moore came to work for the respondent in 1942, as a toolroom clerk. He subsequently qualified as a crane operator and was transferred to the Ashland Street plant as a crane operator and general utility man. Moore signed a membership application card in the Union about May 20, 1944, but there is no evidence that he became in any way active on behalf of the Union or that his membership was known to the respondent. Matteucci testified that on May 24, shortly after Vasek and Swider had been sent to the office and discharged, Zahery, a time study employee, called his at- tention to two or three lifts that needed to be made and to Moore's absence from his crane. Matteucci, according to his credible testimony, uncontradicted by that of Moore, climbed into Moore's crane and made the lifts himself. Mat- teucci then reported Moore's absence to Hensen and recommended that Moore be discharged. When Moore put in his appearance, Matteucci sent him to Hensen's office, where Hensen discharged him. Although asked, Hensen gave Moore no reason for his discharge, stating that the respondent was not obliged to do so. 7 The undersigned requested that the production records pertaining to Vasek and Swider be produced and counsel for the respondent stated that it was his intention to do so. Later, Zahery was called and testified that the records as to Vasek and Swider had been lost. INDUSTRIAL METAL FABRICATORS, INC. 283 According to Matteucci's further credible testimony, supported by that of Zahery, Moore had for some time previously been careless about remaining in his crane between lifts, and frequently disregarded Zahery's instructions as to the order in which certain lifts should be made.' While Moore's case is not wholly free from doubt, due principally to the fact that he was discharged on the same day as Vasek and Swider, found above to have been discharged for their union activities, the undersigned does not believe that the evidence is sufficient to support a similar finding in Moore's case. Unlike Vasek and Swider, Moore's union activity, so far as the record discloses, was confined to mere membership therein. Moreover, it is not dis- puted that Moore was absent from his crane just prior to his discharge, neces- sitating Matteucci's temporarily performing Moore's work, or that be had been previously negligent on similar occasions. It is hereinafter recommended that the complaint be dismissed as to Moore, 3. Carl Davis Davis came to work for the respondent in October 1943, as a welder. He n as making top welder rates when he was discharged on February 5, 1945. He signed a membership application card in the Union in May 1944, when the Union first became active. As has been related, Davis was a candidate for representative on the Committee, but was defeated in the election of June 9. After the formation of the Committee, Davis presented to the Committee, through Herman Mogill, its first secretary, suggestions for a bonus plan and for a liberalized vacation policy, and managed to stir up some sentiment for a written contract which would govern the relationship between the respondent and its employees. Davis maintained an improvised bulletin board near his place of work on which he frequently posted biblical and literary quotations and other material which he deemed to be of interest to his fellow employees. As has been found, the original Committee ceased to function by August or September 1944. Dur- ing the latter part of November 1944, at about the time when the respondent had promised that another election for representatives would be held, Davis posted the following on his bulletin board : Notice : Election-Labor Management Election Day, December 2nd According to Davis, this notice attracted considerable attention in the plant, and led to a demand that the promised election be held, as well as to a demand that Davis be a candidate for Committee representative Later in December, verbal announcement was made that another election would take place, and Davis announced his own candidacy by posting a notice to that effect on his bulletin board. The election occurred on January 17, and Davis was one of five employee representatives elected. The first meeting of the new Committee was held on January 22, and from this time on, up to the date of the hearing, regular weekly meetings became the rule At the meeting on January 29. Davis suggested to R. L Reineman, the respondent's president, vho represented the respondent on the Committee, that a bonus and incentive plan be introduced and that a contract be executed gov- erning the relations between the respondent and its employees. Reineman told Davis that the War Labor Board had rejected the request for a bonus, that 9 Zahery himself had no supervisory authority . Matteucci had given instructions, how- ever, that crane operators should follow Zahery's directions when it came to the order 1A which certain lifts of materials should be made. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there was no need of a contract, and, in effect, that the Committee should func- tion in the same manner as previously ; that is, that representatives should report grievances to him for adjusting. After this meeting, Barrish, secretary of the Committee, had a conversation with William Martensen, plant superin- tendent, which Barrish testified to as follows: Q. Now, did he say something to you about it? A. Yes, he said-he mentioned-he said, "Who mentioned about drawing up laws governing management and governing labor?" So I said to Mr. Martensen, I said, "Bill, you are putting me on the spot." And Bill says, "You don't have to tell me." He said, "I know." The meetings of the Committee were held at 8 o'clock in the morning in Reine- man's office at the Western Avenue plant. It was the practice for the employee representatives to come directly to the meetings without first reporting for work at the Ashland Avenue plant .9 Davis and Russel Kidd, the latter a representative from the night shift, were late in arriving at the meetings on January 29 and February 5, and the minutes of the latter meeting bear this notation : The other two members of the Committee ; namely, Carl Davis and Randall Kidd were not permitted to attend today's meeting, as this was the second week in a row that they failed to be present when the meeting was called to order at 8:00. Kidd was not called as a witness and there is no evidence to show what time he arrived at the two meetings, or the reason for his being late. Davis did not deny that he was late at the January 29 meeting, and admitted that he was at least 20 minutes late on February 5, which he claimed was due to bad weather and transportation conditions. He arrived at the meeting before Kidd, however.10 Upon his arrival, Reineman inquired the reason for his tardiness, and when Davis told him it was due to transportation difficulties, Reineman remarked : "Well, I ,don't want you in the meetings anyway." 11 Reineman thereupon phoned Marten- sen and informed him that Davis had been late arriving at both this and the previ- ous meeting, as a result of which he was excluding Davis from participation in the meeting. Martensen asked permission to speak to Davis, reminded Davis of previous warnings against being late, and told him that he was discharged. Martensen testified that Davis was frequently absent from and late in reporting to work, and that beginning in October 1944, he had found it necessary every 3 or 4 weeks to caution Davis. The last time he spoke to him on this subject was about January 25. Martensen testified, on the basis of Davis' personnel record card, that Davis first began to absent himself from work in November 1944, when he was absent 4 days during the month, and that he was absent 7 days in December and 4 days during the following January. Martensen impressed the undersigned favorably as a witness, and he finds Martensen's testimony to be in accord with the facts. Conclusion The respondent contends that it discharged Davis because he was late at the February 5 meeting of the Committee, and because of his previous attendance ° The day shift began at 7 o'clock Employee representatives on the Committee were paid their usual rates from this time 10 Davis testified that at 10. 30 a. in., while he was waiting In the hallway for his final pay check, he saw Kidd enter the plant. u This finding is based upon the uncontradicted testimony of Davis. Reineman, though available, was not called as a witness. INDUSTRIAL METAL FABRICATORS, INC. 285 record. No contention is made that he was not an efficient welder, or that his and his partner's production was below average in quantity or quality. Although it is clear from the record that Davis' attendance record had not been a good one (luring the last 3 months of his employment, and that he had frequently been cautioned in this connection, the undersigned does not believe that this was the motivating reason for his discharge. It has been found above that Davis had for some time been active in presenting suggestions to the Committee concerning working conditions, even before he was elected representative. It is clear that he took seriously the respondent's promise to hold another election in December, upon the expiration of a 6 months term of office for the Committee representa- tives elected in June It has also been found that the Committee was a company formed and dominated labor organization whose principal purpose was to prevent the growth of the Union. It had been permitted to fall into disuse, and the 6 months period had been permitted to run without another election having been called as promised. It is a reasonable assumption that the election on January 17 would not have taken place had it not been for the publicity given the matter by Davis, who, although he exaggerated his role, was nevertheless regarded by many of the employees as a leader. After Davis' election, he lost no time in presenting to Reineman, the respondent's president, certain demands in- cluding one for a written contract to govern the relations between the respondent and the employees. These demands Rememan rejected. Martensen's inquiry of Barrish as to who was responsible for the agitation for a contract, and his subsequent statement that he, Martensen, already had this information indi- cates that the respondent was disturbed by tliekuggestion of a contract, and held Davis responsible for it The undersigned believes that Davis' late arrival at the Committee meeting on February 5 was only the pretext for a discharge which the respondent had determined upon for reasons unconnected with his employment record. Kidd, who was later than Davis on February 5, and who had been late on January 29 along with Davis, was retained in the respondent's employ. No explanation of this tact was offered at the bearing. Although Davis' past record of attendance was, according to the respondent, taken into consideration in discharging him, the respondent did not proffer any evidence to show that Kidd's record was better. The undersigned finds that the respondent on February 5, 1945, discharged Carl Davis because of his activity in the self-organization of the respondent's em- ployees, and that in doing so the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the respondent's operations described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in certain unfair labor practices, the undersigned will recommend that it cease and desist there- from and take certain affirmative action which he finds will effectuate the policies of the Act. It has been found that the respondent dominated and interfered with the formation and administration of the Committee and contributed support to it. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In order to effectuate the policies of the Act and free the employees of the respondent from such domination and interference and the effects thereof, which constitute a continuing obstacle to the exercise by the employees of the rights guaranteed them by the Act, it will be recommended that the respondent with- draw all recognition from the Committee as representative of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work and disestablish the Committee as such representative. It has been found that the respondent discharged and discriminated in regard to the hire and tenure of employment of Joseph Vasek, Joseph Swider, and Carl Davis. He will, therefore , recommend that the respondent offer Joseph Vasek, Joseph Swider, and Carl Davis immediate and full reinstatement to their former or substantially equivalent employment, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during said period.' The undersigned has found that the respondent has not discriminated against James Moore. He will therefore recommend that the complaint as to Moore be dismissed. CONCLUSIONS OF LAW 1. Amalgamated Local 453, United Automobile, Aircraft & Agricultural Imple- ment Workers of America, C. I 0., and Labor Management Committee, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and administration of Labor Management Committee and contributing support to it, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Joseph Vasek, Joseph Swider, and Carl Davis, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4 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. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent did not engage in any unfair labor practice by discharging James Moore. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that Industrial Metal Fabricators, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall: 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, 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. INDUSTRIAL METAL FABRICATORS, INC. 287 1. Cease and desist from : (a) Dominating or interfering with the administration of Labor Management Committee as a labor organization, or with the formation and administration of any other labor organization of its employees, and from contributing support to Labor Management Committee as a labor organization or to any other labor organization of its employees ; (b) Recognizing Labor Management Committee as the representative of any of its employees for the purpose of dealing with the respondent concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment ; (c) Discouraging membership in Amalgamated Local 453, United Automobile, Aircraft & Agricultural Implement Workers of America, C. I. 0, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or by otherwise discriminating in regard to the hire and tenure of their employment ; (d) 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 Amalgamated Local 453, United Automobile, Aircraft & Agi icultural Implement Workers of America, C. I O , or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Withdraw all recognition from and completely disestablish Labor Man- agement Committee as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (b) Make whole Joseph Vasek, Joseph Swider, and Carl Davis 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 which he 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 such period ; (c) Post immediately in its Ashland Street plant at Chicago, Illinois, copies of the notice attached hereto and narked "Appendix A." Copies of said notice to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; (d) File with the Regional Director for the Thirteenth Region on or before ten (10) days from the receipt of this Intermediate Report, a report in writing setting forth in detail the manner and form in which the respondent has complied with the foregoing recommendations. It is further recommended that unless or before ten (10) days from the receipt of this Intermediate Report the respondent notifies the Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. It is further recommended that the allegations of the complaint as to James Moore be dismissed. 11 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective July 12, 1944, 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, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writ- ing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. 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 to the Board within ten (10) days from the date of the order transferring the case to the Board. HORACE A. RucrEL, Dated August 29, 1945. Trial Examiner. APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We will not 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 Amalgamated Local 453, United Automobile, Aircraft & Agricultural Workers of America, C. I. 0. or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will offer to the employees named below immediate and full reinstate- ment 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. Joseph Vasek Joseph Swider Carl Davis All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of,membership in or activity on behalf of any such labor organization. INDUSTRIAL METAL FABRICATORS, INC., 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 ac- cordance 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.