De Mornay-Budd, Inc.

In the Matter of DE MORNAY-BUDD, INC. and INTERNATIONAL ASSOCIATION OF MACHINISTS Cass Yo. 2-C-i-G.P.-Decided April 25, 19416 DECISION AND ORDER On November,-), t943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged m 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 Re- port attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. On April 11, 1946, the Board at Washington, I). C., heard oral argument in which the Union and the respondent participated. The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed, The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the additions and modifications here- inafter set forth. 1. The Trial Examiner found that the respondent was liable for the statements of Foremen Lark and Riccobon. The record, however, shows that these employees are working foremen who exercise no supervisory authority. Upon the entire record, we find that Lark and Riccobon are not supervisory employees for whose statements and con- duct the respondent is liable. The Trial Examiner's contrary finding in this respect is hereby reversed. 2. Upon the entire record we agree with the Trial Examiner that employees Oberst and Garvin were discharged because of their union membership and activities and not for the reasons advanced by the respondent, as more fully revealed in the Intermediate Report. We also find, as did the Trial Examiner, that the respondent violated the Act, by the conduct of Superintendent Meyers in questioning an em- ployee as to his union membership and in threatening economic re- prisals if the Union were to succeed in organizing the employees. 67 NLRB,No,i4 72S 724 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, De Mornay-Budd, Inc., New York City, and its officers, agents, successors and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Association of Machinists, or any other labor organization of its employees, by dis- charging or refusing to reinstate any of its employees, or by discrimi- nating in any other manner in regard to the hire or tenure of their employment or any terns 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 International Association of Machinists, 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 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 to John Oberst and Edward Garvin immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) Make whole John Oberst and Edward Garvin for any loss of pay they may have suffered by reason of the respondent's discrimina- tion against therm, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from September 8, 1944, the date on which they were discharged, to the date of the respondent's offer of reinstatement, less his net earn- ings during said period. (c) Post at its plant in New York City copies of the notice attached to the Intermediate Report herein marked "Appendix A." 1 Copies of said notice to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the respondent's representa- tive, be posted by the respondent immediately upon the recipt thereof, and maintained by it for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; I This notice, however, shall be , and it hereby is, amended by striking from the first para- graph thereof the words The recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision and Order." DE MORNAY-BUDD, INC. 725 (d) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply therewith. INTERMEDIATE REPORT Mr. Jerome I. Macht, for the Board. Messrs. Beldock d Meadow, by Mr. Harry S Clyne, of New York, N. Y., for the respondent. Messrs Robert Reber and Stephen M. Esteii, of New York, N Y.. for the Union. STATEMENT OF THE CASE Upon a second amended charge duly filed by International Association of Machinists, A. F. L., herein called the Union, the National Labor Relations Board, herein called the Board , by the Acting Regional Director for the Second Region ( New York, New York ), issued its amended complaint, dated August 22, 1945,1 against De Mornay -Budd, Inc., New York , New York, 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) and (3 ) and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the. amended complaint and second amended charge, accompanied by notice of hearing thereon, were duly served upon the Respondent and the Union. With respect to the unfair labor practices , the amended complaint alleged in substance : ( 1) that in or about September 1944, the Respondent expressed dis- approval of the Union ; interrogated its employees concerning their union affili- ations; urged and warned them to refrain from assisting the Union or becoming members thereof ; and threatened them with a reduction in wages or other reprisals if they joined or assisted the Union ; ( 2) that on or about September 8, 1944, the Respondent discharged John Oberst and Edward Garvin and since that _ date has continuously failed and refused to reinstate them, or either of them, for the reason that they joined or assisted the Union or engaged in other concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection; and ( 3) that by the above stated acts , the Respondent discriminated with respect to the hire and tenure of employment and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. At the beginning of the heat ing i eferred to below, the Respondent filed an answer to the amended complaint, adnatting the jurisdictional allegations of the amended complaint, but denying that it had engaged in the alleged unfair labor practices, and alleging affirmatively that the charges of unfair labor practices, as set forth in the amended complaint, were waived and withdrawn by the Union as a condition precedent to the Respondent signing an agreement for a consent ele(•tion which was held on October 7, 1944. Pursuant to notice a hearing was held at New York , New York, on September 13 and 14, 1945 , before the undersigned, W. P. Webb, the Trial Examiner duly designated by the Chief Trial Examiner . The Board and the Respondent were represented by counsel and the Union by its representatives . All parties partici- pated in the hearing Full opportunity to be heard, to examine and cross -examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the conclusion of the Board's case, the Trial Examiner granted, without The original complaint was issued on August 1, 1945. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD objection, a motion by the Board to conform the pleadings to the proof wita respect to formal matters. At the same time, the Trial Examiner denied a motion by the Respondent to dismiss the amended complaint in its entirety Also, at that time, the Trial Examiner reserved ruling on the Respondent's motion to dls- miss paragraphs 7, 8 and 9 of the amended complaint This better motion was renewed by the Respondent at the conclusion of the hearing and I sling was ag.un reserved It is herewith denied The Respondent also renewed its motion to dis- miss the entire amended complaint. Ruling was reserved by the Ti ial Examiner It is herewith denied Opportunity to file briefs with the Trial Examiner was waived by the parties At the close of the lieariiig, time Respondent and the Board argued orally, on the record, betoie the 'ii ial fxaininel Upon the entire record in the case and upon Iiiti observation of the wiliie-ses. the undersigned makes the following FINDINGS OF F wr I TILE BUSINESS OF I ' TIE RI:SPONDE\T The Respondent, De Mornay-Budd, Inc, is a New Yolk corporation, having its principal office and place of business in New York, New York, where it is engaged in the manufacture and sale of radar, radio transmitters, radio equipment, and related products. The principal raw materials used at the plant are brass, steel, and fibre. During the fiscal yegr ending in August 1945, the Respondent pur- chased and transported to the plant raw materials valued in excess of $100,000, of which approximately 50 percent was obtained from outside New York State. During the same period, the Respondent manufactured finished products at the plant valued in excess of $500,000, of which approximately 90 percent was trans- ported to States other than the State of New York. The Respondent concedes that it is engaged in commerce, within the meaning of the Act' II 'IHE ORGANIZATION INVOLVED International Association of Machinists, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the Respondent. III THE UNFAIR LABOR PRACTIO'S A. Interference, restraint, and coeicion ; the discriminatory dischai jes of John Oberst and Edward Garzin 1. Introduction In the early summer of 1944, the Union, on one occasion, distributed circulars at the Respondent's plant. The employees accordingly began to discuss the advisa- bility of having the Union represent them. There was no union in the plant at that time. Following up this idea, employees John Oberst, Edward Garvin, and Albert Carter, at the request of the other employees, went to the Union Hall on Wednes- day, September 6, 1944, and met Peter Baron, the union organizer. They signed application cards for membership in the Union and were supplied with blank application cards, which they distributed among the employees at the plant the, next day On Friday, September 8, they collected approximately 42 signed cards which were turned over to Baron. The same day, Oberst and Garvin were dis- charged and Carter's employment was terminated' 2 The foregoing facts were stipulated by the parties. 3 These findings are based upon the credible and undenied testimony of Oberst and Garvin. Carter is not a complainant in this case His name appeared in the original charge, but was omitted in the amended charge at his request, DE MORNAY-BUDD, INC. 2. The discriminatory discharges 727 John Oberst. Prior to his discharge on September 8, 1944, Oberst had been con- tinuously employed by the Respondent for approximately 2 years. He was first it lathe operator and, after about 1 year, became a set-up man on drill presses. He began work at 65 cents an hour which was gradually increased to 90 cents an hour. As related above, Oberst was one of the three employees who was responsible for the union application cards being distributed to the plant. He was also very active in securing signatures to these cards On the morning of September 8. Edward Meyers. Superintendent of the plant, had a conversation with Oberst with respect to the Union, during which Meyers asked Oberst if he had joined the Union and why the employees wanted the Union to come into the plant. Oberst's credited and undenied testimony in this connection reads as follows : I was setting up a job on the kick press when Mr Meyers came over to me and started talking to me, and he asked me if He asked me what I knew about the Union I asked him what union. So he asked me if I didn't get an application to fill out from the Union. I said I did. He asked me if I was going to fill it out ; I said yes Then he started telling me about the disadvantages we would have if the Union came into the plant. I disagreed with him on that I told him of a lot of advantages we would have if the Union came into the plant . Well, for one thing, he said he would not be able to - if the Union came in, he would not be able to do the same as he is doing now, that is, changing men from one machine to another; that he would have to let them go home if they were waiting for their own machine. I told him he didn't have to do that, that he could do the same that lie is doing at that present time . . Well, the words in the conversation there, lie asked me if I wasn't satisfied with my wages. At that time, I told him no, that-I didn't see why I should be responsible for the work that goes in and out on the drill presses, and set up the drill presses, for the same wages that I was getting on the lathes go he says "You are not satisfied?" I says "No." He says that I was to have a raise within a month or two from that time . . Well, I remember him asking me why the people wanted the Union in there : so I told him we wanted to get the right wages for war-time wages . . . Well, he told me that was up to the War Labor Board and they would not let him raise wages unless they seen fit. Superintendent Meyers admitted that he had a conversation with Oberst on the morning of September 8, 1944 with respect to the Union, and he did not deny Oberst's testimony. Meyers' testimony in this connection reads as follows : d had one with him for a few moments in the morning. He was not work- ing in the drill press department at the time ; there was no work in there ; he was working on a kick press or something on the other side of the shop; he called me over to help set the machine and show him what to do on it At that time I talked to him I recall asking him if he had received a union application card . He said he had Meyers further testified that on that occasion, he discussed the advantages and disadvantages of the Union with Oberst and asked him how he felt about the Union. He also discussed wages with Oberst and told the latter that wages were controlled by the War Labor Board. He also testified that during the con- versation Oberst said he wanted his release because he felt that he could get more money elsewhere.' Oberst denied that he asked Myers for a release on On cross-examination, Meyers qualified this testimony by saying that he did not recall precisely what Oberst had said to him or what he had said to Oberst on that occasion. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that occasion or that he told Meyers he could get more money elsewhere. The undersigned found Oberst to be a forthright and credible witness and credits his denial. According to Oberst, about 5 :00 p. m. on that day, September 8, Superintendent Meyers called him into his office and said to him " eing that you axe not satis- fied with the wages that you are getting, we might as well call it quits now while we are still friends." Oberst replied "It is all right with me." Meyers then gave Oberst his check and release, both of which had been prepared before Oberst was called into the office. According to Superintendent Meyers, about 5:00 p. in. on September 8, he called Oberst into his office and gave him his release and pay. Meyers' testimony jr. this regard reads as follows : I called Mr. Oberst in at about 5:30 I believe, or 5:00 o'clock that after- noon to give him his release and pay, and told him I accepted his resignation because we were laying off other people and there was a shortage of work; since he had requested his release for sometime back, I was granting it at that time I also told him that if he ever wished to come back or if I could help him in any way, I would be more than glad to do so. He thanked me very much and left. There was nothing said then about the Union or anything else. Edward Garvin. Prior to his discharge on September 8, 1944, Garvin had been continuously employed by the Respondent for about 41/2 months as a lathe oper- ator. He began work at 75 cents an hour which was gradually increased to 85 cents an hour. He was an experienced lathe operator before he began working for the Respondent. As related above, Garvin joined the Union on September 6, and was very active in distributing application cards among the other employees on September 7. On the morning of September 8, as Garvin started to enter the plant for the purpose of going to work, he was met by Edwin F. Lark, foreman of the automatic screw machines' Lark told him that Richard De Mornay, president of the Respondent, knew about the union activities in the plant and had requested him to find out who the ringleaders were. Garvin's testimony in this connection reads as follows: He [Lark] was waiting for me; he told me that Mr. De Mornay had found out about our Union activities and that he was under the impression that we were going to be fired, but at the time he said that Mr. De Mornay didn't know who the ringleaders were and that Mr. De Mornay had told him he had to find out who were the ringleaders During the forenoon of September 8, according to the undisputed testimony of Garvin, Paul J. Riccobon, foreman of the lathe department,' asked him what he 6 Lark testified without contradiction that during September 1944 he was foreman in charge of the automatic screw machines . Garvin testified without contradiction that Superintendent Meyers, in a conversation with him, referred to Lark as "foreman of the automatic screw machines." 9 President De Mornay testified at the hearing, but did not deny that he had the con- versation with Foreman Lark, as testified to by Garvin. Lark testified that he signed a union application card and on the next day told Superintendent Meyers that he had done so. Lark denied that either De Mornay or Meyers had requested him to get any informa- tion about the Union. He also denied that he told Garvin he had been instructed to find out who the union organizers were: Lark did not impress the undersigned as a credible witness His testimony was vague, uncertain, and evasive. On cross-examination, his principal answer to questions was, "I don't remember." It is significant that De Mornay did not deny that he had instructed Lark to find out who the ringleaders were, as testified to by Garvin. Lark's denial is not credited by the undersigned. 4 Riccobon had charge of the operations in the lathe department, which consisted of approximately 17 employees. His duties were to keep the machines in operation and see that the work turned out was satisfactory He had authority, which he exercised on DE MORNAY-BUDD, INC. 729 knew about the Union coming into the shop, and why he wanted to join it. Garvin's testimony in this connection reads as follows : Well, he came over and asked me what did I know about the Union coming in the shop ; so I said to him "Well, I don't know anything about it. What do you know about it?" So he said. "Well, what is it, A. F. of L. or C I. 0 ?" So then I figured I might as well tell him because lie knew anyway ; slo I told him it was the A. F. of L Union. So he said to me, he says, "What do you want to join the union for?"-so I said to him "Well, being a working man, I can't see any other way to get along than join the Union." So he started in telling me the different disadvantages I would have if the Union came in, the hours would he cut and wages would be cut, and such things as that d On September 8, shortly after 6: 00 p in., Superintendent Meyeis called Garvin into his office and told him that due to the cancellation of certain contracts, he' would have to let him go. Meyers then handed Garvin his release and a check for his wages Garvin replied that he could not understand why he was being discharged as his work had previously been complimented by Meyers. Nothing was said by Meyers that Garvin lacked seniority. Meyers told Garvin that "as soon as the new work was ready" he would be called back to work. He was never called back to work by the respondent.` After their discharges, Oberst and Garvin met outside the plant. They were soon joined by Carter, whose services had also been terminated by the Respondent on that day. They discussed the situation and dbcided to meet at the union hall the next morning. On Saturday, September 9, they went to the union hall and informed Peter Baron, the union organizer, what had transpired and requested that the Union assist them in securing reinstatement in the plant. Together with Baron, they then went to the Respondent's plant Arriving there, Baroi went into the office and the others remained outside. Baron introduced himself to the reception clerk and asked for Superintendent Meyers. The clerk made a telephone call and then informed Baron that Meyers would not be at the plant until the following Monday. Baron and the three employees returned to,the plant on Monday, September 11, and the same procedure was followed as on the previous visit. Baron went into the office and again inquired for Meyers. The reception clerk called Stanley Gartman, the Respondent's auditor. Baron told Gartman that he wanted to see Superintendent Meyers in regard to having these three employees reinstated. Gartman informed Baron that he was the Re- spondent's accountant and attorney and that he had full authority to act in the matter. He further told Baron that Oberst, Garvin, and Carter had been numerous occasions, to shift operators from one machine to another, and to take them off a machine entirely, if he did not like their work He had authority to effectively recom- mend promotions or demotions and other changes in the status of employees in the lathe department. Superintendent Meyers testified that Riccobon was working foreman in charge of the production of machine tools; that his wages were $1.25 an hour; that the maximum wage of the employees working under Riccobon was 90 cents an hour ; that Riecobon reported to him on the work and efficiency of the employees under him, and made recommendations as to increases in their wages and that such recommendations were acted upon by him The Respondent concedes that Riccobon was a working foreman. The undersigned finds that Riccobon was at all times material herein, a supervisory employee within the meaning of the Board's definition of that term 8 Riccobon made no specific denial of this testimony of Garvin Riccobon was asked if lie had had a conversation with Garvin about the Union on or about September 8, and his answer was "I don't recall". The undersigned was not favorably impressed with Riccobon as a witness , and credits the testimony of Garvin 3 These findings are based upon the credible and undenied testimony of Garvin. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laid off because of lack of work in the plant 3O Baron's testimony, in part, in regard to this incident reads as follows : I again asked him would he put these men back to work, because I did not agree with him. I then stated that we were in the midst of organizing, an organization campaign in the plant, and we didn't believe, since there was a war on, that we should have conflicts, and I told him I did not want to go into an unfair labor charge ; that we should sit down and settle it He said, well, as far as he was concerned, the question was settled I asked him whether that was definite. He said-he hesitated a while and he said "Well you call me tomorrow morning and I will tell you whether it is definite." . . . I called Mr. Gartman the following morning from my office, on the telephone . . . And I asked him whether he was going to take these people back and he said "No, the Company wasn't and the matter rested with him." Gartman's testimony, in substance, corroborated that of Baron with respect to what occurred in the office on September 11, except that he denied that he told Baron he had authority to act for the Respondent Gartman's testimony, in part, regarding his telephone conversation uuith Baron the next day, reads as follows : I told Mr. Baron that I had spoken with Mr. De Mornay and Mr. Meyers and that I had been told that the three employees in question had been laid off because of lack of work and since that situation had not changed since they were laid off, we were not in a position to take them back at the present time, and also that the company did not recognize the union which he represented as tae representative of our employees" Contentions of the Respondent with respect to the discharges of Oberst and Garvin The Respondent's contentions with respect to the discharge of Oberst are indefinite and contradictory, and the undersigned finds no merit in them. Meyers testified that when he discharged Oberst, lie told him that lie was accepting his resignation, since Oberst had requested his release "for some time back." Gartman testified that after talking to Baron on September 11 he spoke to Presi- dent De Mornay and Superintendent Meyers and that they instructed him to inform Baron that Oberst, Garvin, and Carter had been laid off because of lack of work. In a letter dated October 23, 1944, written by the Respondent's attor- neys to the Board's Regional Office in New York, New York, in reply to the Board's letter that charges had been filed against the Respondent, the Respond- ent stated, with reference to the discharge of Oberst, as follows : John Oberst was employed as a machine operator. On several occasions during the months of June and July 1944, Oberst requested to be released. He was urged to continue his employment until a replacement could be hired for his position. In the early part of September 1944, after a replace- ment had been hired," Oberst's resignation was accepted and he was given a release, '0 These finding=s are based upon the undenied testimony of Oberst , Garvin, and Baron. 11 Gartman testified that he had been instructed by De Mornay and Meyers to convey this Information to Baron. "The record shows and the undersigned finds that Oberst was not replaced until several Weeks after his discharge. DE MORNAI -BUDD, INC. 731 With respect to Meyers' testimony that Oberst had requested his release "for some time back", according to Meyers, in June or July 1944, Oberst requested a release, stating that lie could earn more money elsewhere Meyers' testimony in this respect, reads.as follows I urged him to stay on and pointed out that at the particular time there we as a labor shortage and we needed him : 'also I wanted him to stay on. if lie was going to leave, to help/break somebody else in on his work. I also pointed out to huu his moral obligation to the Company, we had quite all investment in him, we had trained hun from the very beginning when he started to work for its,, and I requested lie stay on at that time at least until •-uch time as I could better afford to let him go He consented to stay on. Meyers further t(,,-titled that ilk three weeks or a month later. Oberst told him that he could make moi e money elsewhere, but that he urged hint to stay with the 'Respondent; and that Oberst did notesiiv that he was dissatisfied or he could not live on his pay, but only that lie thought he could do better elsewhere. Oberst denied that lie ever asked Meyers for a release" It appeals from Meyers' teti- mony that prior to Oberst's union ac tai ity, be was regarded as almost an ndns- pensahle employee and the Respondent consideied that he was under a moral obligation to continue working for the Respondent, yet within 48 hours after he joined the Union this obligation apparently ceased and his services were no longe/ required It is evident from the recoil flint the Respondent had no Intention of dis- charging Oberst prior to his union activities About '? weeks prior to his dis- charge, Meyers asked Oberst if he would take the set-up job on the milling machine as lie could not get a roan to cto that work Oberst's testimony in this connechon reads as follows. I went over to Mr. Meyers about Koine work that was not going just right. So lie explained it to me and lie said to me, "I can 't get a man to set up the millers at this tune." So lie asked inc if I would take the setting up job on the milling machine , that he'would help me break in on that, and he would get another man for my job on the drill presses. The contention of the Respondent that Garvin was laid off on September S, 1944, on account of a temporary hell in work in the lathe department is not supported by the facts, and the undersigned finds no merit in it. In the first part of June 1944. according to Superintendent Meyers , the work week in the lathe department was reduced from 60 hours to 50 by not working on Saturdays. Meyers' testimony in this connection reads as follows : That did not pertain to the entire plant ; we had departments working longer ; the tool room usually worked longer ; the engineering department did, and any departments that were behind schedule for one reason or another, we would have them come in on Saturday either for a half or a whole day, de- pending on the requirements at the moment . What we did was to cut down the schedule of work on Saturday during the summer. That was how we shortened the hours to 50 President De Mornay testified that about the middle df -November, the lathe department resumed the 60-hour week. is As stated above, the undersigned found Oberst to be a credible witness and his denial is credited. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Meyers , about eight or nine employees were laid off during the first part of September 1944. It is significant, however, that the respondent did not produce any records or other specific evidence as to who these employees were and on what dates they were laid off, although counsel for the Board re- quested this data. The record shows and the undersigned finds that during the time material herein skilled labor was very scarce indeed Also, the record shows that to tide over the short period between contracts , in the summer of 1914, the Respondent shortened the work week for the 1 cry purpose of distributing the work and that employees not needed in the lathe department were put on other work. For instance, Oberst was a set-up man on the drill presses and at the time of his discharge he was working on i kick press Garvin a\ as an experieia e l lathe operator prior to his employment by the Respondent and was quite capahl of doing other work in the plant , if he had been given the opportunity " The Respondent contends that the lay-off of Garvin was inane according to seniority. However, no record or other evidence was produced to substantiate this claim. According to Meyers, beginning about the middle of November 1944, the Respondent began advertising for workmen and hiring new employees. Ad- vertisements were placed in most of the New York newspapers , and the United States Employment Service and private agencies were requested to recruit laborers for the Respondent . "Help Wanted" signs were put up at the plant. However, neither Oberst , Garvin, nor Carter was offered reinstatement by the Respondent. The record thus shows that the 'September restriction in the Respondent's operations was a temporary one, of lesser duration than the sunnier slump which had been met by a reduction of hours and a shift in work assignments. It is also clear that the respondent's officers knew , on September 8, that the slack period was due primarily to operational changes in the shop and would be of short duration The record further shows that the Respondent had va:ued Garvin's services , and had shifted him to other duties during previous periods of slack work Yet on this occasion , despite his knowledge that the situation was temporary, Meyers chose to dispense with the services of Garvin It has already been noted that Garvin was dismissed on the day after he had partici- pated in the distribution of union application cards among the respondent's em- ployees, and within a few hours after he had advised his supervisor that he intended to join the Union The immediacy of the Respondent 's reaction is a substantial indication that this information was the prime factor in Garvin's discharge. The undersigned finds , therefore , that the decision of the Respondent's superintendent to release Garvin rather than to assign him to other duties was motivated by his knowledge of Garvin s union activity, and that the respondent's action was a violation of the Act There is no merit in the Respondent 's contention that the original charge filed by the Union on September 22, 1944 , was waived and withdrawn by the Union as a condition precedent to the Respondent signing the agreement for a consent election which was held in the plant on October 7, 1944." The record discloses and the undersigned finds that on September 13, 1944, the Union filed a petition for investigation and certification of representatives under Section "Garvin testified without contradiction that whenever his turret lathe broke down or work was slow the Respondent had previously shifted him to other work, and that he had worked at one time or another on drill presses, milling machines, or in the Respondent's soldering department 15 The Union lost the election DE MORNAY-BUDD, INC. 733 9 (c) of the Act. On September 22, 1944, the Union filed the original charge against the Respondent, alleging violations of Section 8 (1) and (3) of the Act. On October 2, 1944, a conference was beld between representatives of the Board, the Respondent, and the Union. At that meeting the parties entered into a consent election agreement and the Union executed the usual waiver, which reads as follows : Ile Case No. 2-R-5014 De Mornay-Rudd Inc the undersigned hereby waives the unfair labor practices heretofore committed and alleged in charge filed in Case No. 2-C-5(143, as the basis for objection to the result of any election that may be held pursuant to the above numbered petition70 Concluding findings The undersigned finds that the whole course of conduct of the Respondent, as hereinabove outlined, proves conclusively that it discharged Oberst and Garvin Tor the sole reason that they engaged in union activity. They joined the Union on September d, 1914. and distributed union cards in the plant on September 7. On the morning of September 8. Superintendent Meyers interrogated Oberst concerning the Union and asked him if he had joined it Oberst was discharged that afternoon an hour of more before his shift ended. Also, on the morning of September S. Foreman Lark told Garvin that President De Mornay had re- quested him to find out who were the ringleaders in the union activity, and that lie was under the impression that Oberst and Garvin were going to be discharged. Also on that morning, Foreman Riccobon questioned Garvin about the Union and told him about the many disadvantages of having a union in the plant. Garvin was discharged that afternoon about an hour before his shift ended. Both Oberst and Garvin were skilled workmen and there had never been any complaint about their work Both had received increases in pay during their service with the Respondent. The i ecord shows Mat until they joined the Union, the Re- spondent was very anxious to retain the services of these two men. From the entire record in the case, the undersigned finds that the Respondent discharged John Oberst and Edward Garvin on September 8, 1944, and has since refused to reinstate either of them, not because of the reasons alleged by the Respondent, but because they joined and assisted the Union and engaged in concerted activities for the purposes of collective bargaining or other mutual aid or protection. Thereby the Respondent discriminated in regard to their hire and tenure of employment, 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. 3, Other acts of interference, restraint, and coercion [hi September 8, 1944, while employee Albert Carter was at work in the plant, he had a conversation with Foreman Riccobon, in the presence of two other employees, in which they discussed the advantages and disadvantages of having a union in the plant. According to Carter, Riccobon said to them that "the Union wasn't very good because they would cut hours and wages and people would have to work on one machine and leave altogether if they didn't have work to do that day" Carter replied that he felt that "the way to have de- mocracy in the plant was to have a union in there so that the workers would have 19 Article II, Section I of the Board's Rules and Regulations, Series 3, as amended, effec- tive July 12, 1944, states "A charge may be withdrawn only with the consent of the Regional Director with ,Nhom such charge was filed or of the Board " 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some say in the way it was run." Carter's employment in the plant was termi- nated by the Respondent that afternoon, In summary, the undersigned concludes and finds from the entire record in the case that by the aforesaid acts and statements of President Richard De Mornay, Superintendent Edward Meyers, Foremen Paul J. Riccobon, and Edwin F Lark, 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 PR ),( TICES UPON ('O\i AfER(E The activities of the Respondent, set forth in Section III, above, occurring in connection with the operations of the Respondent as' described in Sect ion I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce 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 and is engaging in unfair labor practices affecting commerce, it will be recommended that it cease and desist therefrom and take certain affirmative action which the undersigned finds will effectuate the policies of the Act. It has been found that the Respondent discriminatorily discharged John Oberst and Edward Garvin. It will therefore be recommended that the Respondent offer Oberst and Garvin immediate and full reinstatement to their former or substan- tially equivalent positions without prejudice to their seniority or other rights and privileges It will be further recommended that the Respondent make whole Oberst and Garvin for any loss of pay each may have suffered by reason of the Respondent's discrimination against him by payment to each of them of a sum of money equal to the amount he would normally have earned as wages during the period from September 8, 1944, the date on which they were discharged, to the date of the Respondent's offer of reinstatement, less his net earnings' during said period. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following. CONCLUSIONS or LAW 1 International Association of Machinists, affiliated with the American Federa- tion of Labor, is a labor organization, within the meaning of Section 2 (5) of the Act. 2 By discrifnuiating in regard to the hire and tenure of employment of John Oberst and Edward Garvin, thereby discouraging membership in the International Association of Machinists. affiliated with the American Federation of Labor, 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 eniplovees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in '7 Br "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining woik 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 CroQsett Lumber Company, 8 N L R. B. 440 Monies received for pork performed upon Federal. State, county, municipal, or other work-relief projects shall be considered as c,irnings See Republic Steel Corporation v N L R R. 311 U S 7 DE MORNAY-BUDD, INC. 735 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. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the Respondent, De Mornay-Budd, Inc, New York, New York, its officers, agents, successors and assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Association of Machinists, affiliated with the American Federation of Labor, or any other labor organization of its employees by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to the hire or tenure of their 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 International Association of Machinists, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activi- ties for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2 Take the following affirmative action which the undersigned finds will effectuate the policies of the Act ; (a) Offer to John Oberst and Edward Garvin immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges ; (b) Make whole John Oberst and Edward Garvin 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 be normally would have earned as wages during-the period from September 8, 1944, the date on which they were discharged, to the date of the Respondent's offer of rein- statement, less his net earnings" during said period. (c) Post at its plant in New York, New York, copies of the notice attached hereto, marked "Appendix A". Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon the receipt thereof, and maintained by it for sixty (60) consecutive days there- after 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 Second Region on or before ten (10) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply with the foregoing recommendations It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. 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. 18 See footnote 17, supra. 786 DECISIONS OF {tATIc NAL LABOR RELATIONS BOARD any party may withbi 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 8.hit s and Eeg'uldtion , file with the Board, Roch4mbeau Building , Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or pro- ceedings (including rulings upon all motions or objections ) as he relies upon, together with the original and four copies of a brief in support thereof. Immedi- ately 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 pro- vided 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. Dated November 5,1945. W. P. WEBB, Trial Examiner. APPENDIX A NOTicE To A LL EMl'T OYEES 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 International Association of Machinists, A. F. L., 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 su'ered as a result of the discrimination. John Oberst Edward Garvin 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 - DE MORNAY-Bt DD INC. By --------------------- (Representative ) (Title) Dated ------------------------- NoTE.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accord- ance with the Selective Service Act after discharge 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.