Wright Hibbard Industrial Electric Truck Co., Inc.

In the Matter Of WRIGHT-IIIBBARD INDUSTRIAL ELECTRIC TRUCK CO., INC. and INTERNATIONAL ASSOCIATION OF MACHINISTS Case No. 3-C-784.-Decided April 29, 1946 DECISION AND ORDER On December 11, 1945, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor -practices and 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, on December 31, 1945, the respondent filed exceptions to the Intermediate Report without a supporting brief. The Board has reviewed the rulings made by the Trial Examiner 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 respon- dent's exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications hereinafter noted. 1. We agree with the Trial Examiner that in discharging the employees listed in Appendices A, B, and C of the Intermediate Report under the circumstances revealed therein, the respondent vio- lated Section 8 (3) of the Act. We shall order the respondent to make whole these employees for losses incurred because of the respond- ent's discrimination. We also agree with the Trial Examiner that it is possible that one, or more of these employees might have been affected in their employment even absent the respondent's unfair labor practices. Under the circumstances, therefore, this possibility will be taken into consideration in determining the amount due to these employees in compliance with our Order herein.' We also expressly reserve the right to modify the back-pay and reinstatement provisions of our Order if made necessary by a change of conditions in the future, and to make such supplements thereto as may hereafter ' See Matter of Bermite Powder Company, 66 N. L. R. B. 678 ; Matter of Brown's Tie d Lumber Company, 66 N. L. R B. 637. 67 N. L. R. B., No. 110. 692148-46-vol. 67-58 897 '898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD become necessary in order to define or clarify their application to a specific set of circumstances not now appearing.2 2. Although the Intermediate Report mentions Supervisor Sebring's testimony that employee Main was not a satisfactory employee, the Trial Examiner also states that the record reveals no evidence that Main was not a satisfactory worker. The record discloses that during the first 4 months of 1945 there were 6 weeks in which Main worked substantially less than 55 hours, the established work week at the respondent's plant, and that he had at some time read books or other literature at his machine. On the other hand, so far as appears, the respondent did not complain to Main about these matters ; and Main received two merit increases during the year of his employment at the respondent's plant. Like the Trial Examiner, we therefore reject the respondent's contention that Main was discharged for inefficiency or absenteeism. 3. The Intermediate Report states that employees Brokaw and Lockemeyer were admittedly superior workers. The record discloses no more than that they were admittedly efficient workers. We hereby correct the misstatement, which does not affect our decision herein. 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, Wright-Hibbard Industrial Electric Truck Co., Inc., Phelps, New York, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Association of Ma- chinists, or any other labor organization of its employees, by discharg- ing or refusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment; (b) Refusing to bargain collectively in respect to rates of pay, wages, hours of employment, and other conditions of employment with International Association of Machinists as the exclusive representa- tive of all its production and maintenance employees, excluding office, clerical, and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommended such action; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to join 2 Matter of Fairmont Creamery Company, 64 N. L. R. B. 824 ; cf. N. L. R. B. v. New York Merchandtiee Company, Inc., 134 F. (2d) 949 (C. C. A. 2). WRIGHT-HIBBARD INDUSTRIAL ELECTRIC TRUCK CO., INC. 899 or assist International Association of Machinists 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, 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 : 8 (a) Offer to Ralph Briggs, Anthony Burnisky, Kenneth Coons, Clarence Guard, Willis Kregloh, Frank Lannon, George Peake, Wal- ter Guiggle, George Walthert, Jacob Lockemeyer, Leslie Brokaw, Carl Main. and John Hicks immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, in the manner set forth in Section V, "The Remedy," of the Intermediate Report attached hereto ; (b) Make whole Ralph Briggs, Anthony Burnisky, Kenneth Coons, Clarence Guard, Willis Kregloh, Frank Lannon, George Peake, Wal- ter Guiggle, George Walthert, Jacob Lockemeyer, Leslie Brokaw, Carl Main, John Hicks, Prosper Bankert, Paul Iddings, Edward O'Coyne, Warren Knauss, Willard Coons, Lloyd Johnson, Frank Overslaugh, Harold Siegwalt, Arthur Hughson, Walter Kennedy, Daniel Robyn, and Calvin Utter for any loss of pay that 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 nor- mally would have earned as wages during the applicable period, in the manner set forth in Section V, "The Remedy," of the Intermediate Report attached hereto, less his net earnings during that period; 4 (c) Upon request, bargain collectively in respect to rates of pay, wages, hours of employment, and other conditions of employment with International Association of Machinists as the exclusive repre- sentative of all its production and maintenance employees, excluding office, clerical, and supervisory employees with authority to hire, pro- mote, discharge, discipline, or otherwise effect changes in the status ,of employees, or effectively recommend such action; (d) Post at its Phelps, New York, plant, copies of the notice at- tached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by the respondent's representative, be posted by The Board expressly reserves the right to modify the back-pay and reinstatement provisions if made necessary by a change of circumstances in the future , and to make such supplements thereto as may hereafter become necessary in order to define or clarify their application to a specific set of circumstances not now appearing. 4 In determining the amounts due under this provision of the Order, consideration shall be given to the possibility that one or more of the named employees might have been dis- charged in the general reduction of the work force, even if the respondent 's selection had been made on a non-discriminatory basis. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Third Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. JOHN M. HOUSTON took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: We will not in any 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 Asso- ciation of Machinists 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 bar- gaining or other mutual aid or protection. 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 and priv- ileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination : Ralph Briggs Frank Lannon Jacob Lockemeyer Anthony Burnisky George Peake Leslie Brokaw Kenneth Coons Walter Guiggle Carl Main Clarence Guard George Walthert John Hicks We will mace whole the employee named below for any loss of pay suffered as a result of the discrimination : Prosper Bankert Willard Coons Arthur Hughson Paul Iddings Lloyd Johnson Walter Kennedy Edward O'Coyne Frank Overslaugh Daniel Robyn Warren Knauss Harold Siegwalt Calvin Utter We will bargain collectively, upon request, with International Association of Machinists as the exclusive representative of all employees in the bargaining unit described herein with respect to WRIGHT-HIBBARD INDUSTRIAL ELECTRIC TRUCK CO., INC. 901 rates of pay, wages, hours of employment, or other conditions of employment, and if an agreement is reached, embody such under- standing in a signed agreement. The bargaining unit is: all production and maintenance employees at our Phelps, New York, Plant, excluding office, clerical, and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not dis- criminate 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. WRIGHT-HIBBARD INDUSTRIAL ELECTRIC TRUCK CO., INC. 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. Francis Y. Heigesen, for the Board. JIr. James 1I. Ryan, of Geneva, N. Y., for the respondent. Mr. H. I. Smith, of Buffalo, N'. Y, for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed by International Association of Machinists, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Third Region (Buffalo, New York), issued its complaint dated July 1fi, 1945, against Wright-Hibbard Industrial Electric Truck Co Inc, Phelps, N. Y, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfa}r labor practices, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notice of hearing thereon were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the respondent : (1) commencing about April 14, 1945, discouraged and coerced its employees against affiliation with or activity on behalf of the Union, questioned them regarding such affiliation and activity, disparaged the Union, induced and compelled them to seek withdrawals from the Union, and advised them that they would receive no benefits from collective bargaining through the Union; (2) on April 21, 1945, discharged and thereafter refused to reinstate Carl Main, Jacob Lockemeyer, and Leslie Brokaw because of their union membership 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and concerted activity ; (3) on April 24, 1945, discharged and until various dates between April 27 and May 11, refused to reinstate 11 named employees because of their union membership, concerted activities, and having on April 23, gone on strike in protest against the discharges of April 21; (4) on April 24, discharged and until April 27, refused to reinstate Lloyd Johnson because he had assisted the Union, engaged in concerted activities, and gone on strike for the same reason ; (5) on April 24, discharged and thereafter refused to reinstate 8 named employees because of their union membership, concerted activities, and having gone on strike for the same reason and Ralph Briggs because he had assisted the Union, engaged in concerted activities, and had for the same reason, gone on strike; (6) on April 25, discharged and thereafter refused to reinstate John Hicks because of his union membership and activity ; and (7) by such acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent thereafter filed an answer dated July 24, 1945, denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Phelps, New York, on August 30 and 31, 1945, before the undersigned Josef L. Hektoen, the Trial Examiner duly designated by the Chief Trial Examiner The Board and the respondent were represented by counsel and the Union by its representative; all participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence Bearing on the issues was afforded to all parties. On August 31, the motion of counsel for the Board to amend the complaint in a minor particular was allowed without objection and the motion of counsel for the respondent to dismiss the complaint was taken under advisement. The latter is hereby denied. At the close of the hearing, counsel for the Board argued orally before the undersigned. No briefs have been received. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Wright-Hibbard Industrial Electric Truck Co. Inc., is a New York corporation maintaining its principal place of business and plant at Phelps, New York, where it is engaged in the manufacture and sale of electric trucks and parts therefor. During 1944, its purchased materials consisting mainly of steel and castings, rubber, and electrical appliances, having a value of about $180,000, approximately 50 percent thereof being shipped to it from points outside the State of New York. During the same period, it sold finished products having a value of about $480,000, approximately 90 percent thereof being shipped by it to points outside the State of New York. The respondent concedes that it is engaged in commerce, within the meaning of the Act. II. THE ORGANIZATION INVOLVED International Association of Machinists is a labor organization admitting to membership employees of the respondent. IH. THE UNFAIR LABOR PRACTICES A. The sequence of events On Saturday, April 14, 1945, without previous notice, the respondent posted a notice in its plant stating that on and after April 16 all employees would be WRIGHT-HIBBARD INDUSTRIAL ELECTRIC TRUCK CO., INC. 903 required to work a full 55-hour week "in order to obtain the $1.00 per truck which is paid each month for all new trucks shipped the previous month."' On Monday, April 16, the employees 2 engaged in a work stoppage. Employee Jacob Lockemeyer, spokesman for the employees, told Superintendent Myron Sebring that they were disturbed by the notice and that they desired an increase of 10 cents per hour to take the place of the bonus. Sebring telephoned R. F. Hibbard, president of the respondent, and thereafter informed the men that the respondent would penalize by a 5-day lay-off all who did not go to work at once. Substantially all the employees nevertheless thereupon quit the plant but at Sebring's urging agreed to return after lunch for a conference with Hib- bard. They did so, and at Sebring's suggestion, a committee consisting of employees Lockemeyer, Frank Lannon, and Leslie Brokaw conferred with Hibbard, in- formed him of the employees' demands, and obtained from him a compromise of a 5-cent per hour increase with a 2-cent bonus to replace the former bonus payment for all those who worked a full 55-hour week. It was accepted by the employees who returned to work the following day, April 17.' On the same day, April 17, employee Lannon conferred with Union Repre- sentative Clark Goodrich respecting protection for the employees from the re- spondent's possible future unilateral determinations of matters vitally affecting them Goodrich gave Lannon a number of union application cards and advised him to use the committee which had conferred with Hibbard the day before as the nucleus about which to build the Union. On April 18 and 19, Lannon and Brokaw obtained the signed applications of 25 employees' which Lannon thereafter mailed to Goodrich at the neighboring town of Seneca Falls Goodrich received them on Saturday, April 21. On April 21, the respondent summarily, and without explanation, discharged employees Brokaw, Lockemeyer, and Carl Main' On Monday, April 23, Superintendent Sebring arrived early at the plant and locked the door. He explained at the hearing that while he was uncertain why he had done so, he had desired to adjust the matter of a miscalculation in,^ay during the preceding week with the employees before they entered the plant. As they arrived for work, Sebring told the employees that the matter would be adjusted The employees, however, asked him for an explanation of the three Saturday discharges. He refused to vouchsafe one and after again tele- phoning Hibbard, stated that employees who did not promptly go to work could the same day get their pay and releases. All but about 10 employees thereupon left the plant premises and went on strike. Later the same morning, Representative Goodrich conferred with President Hibbard. As is hereinafter found, the respondent at that conference refused to bargain collectively with the Union in violation of the provisions of the Act. On the same day, Hibbard sent to all employees who had not gone to work that morning, by registered mail, a letter dated April 23, enclosing their pay checks and releases, and stating in part, "As our present contract with the 'The $1 per truck bonus had theretofore been paid to each employee regardless of the number of hours he worked 2 At this time the respondent employed 35 production and maintenance employees. 8 The record does not disclose that the respondent penalized by lay-off any employee for failure to work on Monday , April 16. 4 Lannon prepared and executed a 26th application , that of employee Harold Heckman. It is considered, infra, in connection with the respondent's refusal to bargain collectively with the Union. 5 Their discharges , which are hereinafter found to have constituted unfair labor prac- tices by the respondent , are separately dealt with. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD government has practically expired, it is impossible for us to work all of our previous force of men, and therefore it is for this reason we have found it necessary to give you your release." The letters were received on April 24. On April 25, the respondent discharged union employee John Hicks. Between April 27 and May 11, the respondent reemployed 12 of the employees whom it had discharged on April 24. At the time of the hearing, the respondent employed 20 to 25 persons and the plant was working a 55-hour week. B Early interference with self-organization Between April 16 and 21, Supervisor of Production Harry Fridley told em- ploS,ee Clarence Guard in the plant, that President Hibbard had just "bawled out" Fridley and suggested to Guard that if the employees desired a union they organize a "shop union,"' Employee Anthony Burnisky credibly testified, and the undersigned finds, that during this period Fridley made the same suggestion to him and told him that Hibbard had shortly before criticized Fridley for the activities of the Union in the plant. Hibbard's apprehension respecting the Union is also demonstrated by the undenied testimony of Leonard Sabin; which the undersigned accepts, that during the last week Sabin worked in the plant, Fridley told him that Hibbard had been questioning him about the Union. Employee Harold Heckman testified, and the undersigned finds, that at about the time of the strike, Fridley told him that he had himself belonged to a union and "did not think too much of the Union." It is found that by the statements of Fridley to Guard, Burnisky, and Heck- man, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discrimination against Lockemeyer, Brokaw, and Main As related above, on April 21, the respondent without warning summarily discharged Jacob Lockemeyer, Leslie Brokaw, and Cail Main. Superintendent Sebring took the action on orders given him without explanation by President Hibbard. Lockemeyer and Bi okaw had worked steadily for the respondent since Octo- ber 29, 1942, and November 15, 1943, respectively, and were earning 85 cents per hour, exclusive of the 2-cent bonus, when discharged' No criticism of their work was made by the respondent and they were admittedly superior workers. As related above, Lockeieyer acted as spokesman for the employees on the oc- casion of the first work stoppage on April 16, and thereafter, on the same day, in the company of Brokaw and Lannon, conferred with and secured from Hibbard a 5-cent raise and a 2-cent bonus tor the employees. During the following week, both joined the Union and Brokaw, according to his undenied and corroborated testimony, which the undersigned credits, obtained employee signatures to 20 or 21 union applications According to Representative Goodrich's undenied and credible testimony, which the undersigned accepts, President Hibbard at their April 23 meeting told him among other things, that he had discharged Lockemeyer and Brokaw because they were "trouble makers." The undersigned accepts Hibbard's state- 9 The finding is based upon Guard 's undenied and credible testimony. Although he was employed by the respondent at the time of the hearing, Fridley did not appear as a wit- ness ° Sabin was a foreman in the plant until his resignation on April 21. Each had received a number of merit increases during their tenure to reach that figure. WRIGHT-HIBBARD INDUSTRIAL ELECTRIC TRUCK CO., INC. 905 , ment as revealing the real reason for the respondent's discharging them and accordingly finds that it rid itself of them on account of their concerted activi- ties and union membership. Main began work for the respondent on May 15, 1944, and received a 5-cent merit increase in February 1945 Despite Sebring's testimony that he was not a satisfactory worker, the record not only fails to disclose any warning to him by the respondent respecting it, but is free of any evidence that his work was unaccept- able. He took part in the April 16 work stoppage. On that morning, accord- ing to Main's undenied testimony, which the undersigned accepts, Sebring told him, as well as several other employees who were present, that if they joined a union they would be assessed, be compelled to pay dues, and be under the necessity of supporting strikes, and that a union would not help them. Main replied that he had been a union member for 9 years. He joined the Union on April 19 Although the respondent did not reveal its reason for discharging Main either to him, or in its answer, or at the hearing, its apparent contention is that it dispensed with his services on account of fear that Main's wages might become the subject of garnishment proceedings by his creditors. The evidence discloses that on two occasions Hibbard had assisted Main to meet certain demands upon him, and that on April 20, 1945, a sanitarium at neighboring Clifford Springs wrote the respondent that Main was indebted to it in the sum of $90 for obstet- rical services rendered Mrs. Main some time previously. Goodrich testified, and the undersigned finds, that during his April 23 conference with Hibbard, the latter told him that the respondent had discharged Main because he did not pay his bills. Despite the persuasive chronology tending to support the respondent's con- tention, the undersigned is convinced that in this case Hibbard did not reveal his real reason for its action. In the past, he had been sympathetic and helpful respecting Main's problems. On April 21, he did not so much as consult Main respecting the letter or the validity of the indebtedness therein referred to, and refused to divulge any reason for discharging Main. On Saturday of the week during which the Union's successful drive had taken place he retaliated by discharging two of the leading union protagonists, one of whom, Barokaw, had personally been in large measure responsible for its success. In view of all of the circumstances revealed in the record, including the respondent's unde- viating opposition to the Union, both above and hereinafter found, and partic- ularly Main's bold statement to Sebring that he had been a union member for 9 years, the undersigned is convinced that Hibbard ordered Main's simultaneous discharge because of his having revealed himself as a potent menace to the respondent's fixed purpose to break the back of the Union and that it rid itself of him not because he purportedly owed a sanitarium money but because Main was infected with the union virus to such degree as to make his further presence in the plant intolerable to Hibbard. It is so found It is further found that by discriminating in regard to the hire and tenure of employment of Lockemeyer, Brokaw, and Main, and by the statements of Sebring to Alain and others, the respondent has interfered with, restrained; and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The refusals to bargain 1. The appropriate unit The complaint alleged, the answer of the respondent admitted, the evidence- establishes , and the undersigned finds, that all production and maintenance em- 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees of the respondent, excluding office, clerical, and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, at all times material herein constituted and now constitute a unit appropriate for the pur- poses of collective bargaining, within the meaning of Section 9 (b) of the Act. 2. Representation by the Union of the majority of the respondent's employees within the appropriate unit On April 21, 1945, the respondent employed 35 persons in the appropriate unit. The Board introduced into evidence 25 applications for membership in the Union signed by employees in such unit. One was dated April 18 and the remainder April 19 ° The respondent sought to show that a number of those who executed such ap- plications did so under "a misapprehension as to the nature of the document." The evidence discloses merely that several employees understood that they were put under no "obligation" by signing an application. In accordance with the usage of the Union, no dues or initiation fees were collected of the applicants, such payments becoming due only when and if the representation of the Union was established and the employees affiliated with a local lodge or formed one of their own. The applications are in the usual form, the evidence reveals no coer- cion or misrepresentation in obtaining signatures thereto, and none of those exe- cuting applications is shown to have been illiterate or under disability. The respondent's contention is therefore found to be without merit and is rejected. The undersigned finds that the Union was on April 19, 1945, and at all times thereafter has been, the exclusive representative of all of the respondent's em- ployees in the appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, within the meaning of Section 9 (a) of the Act. 3. The refusals to bargain On the morning of April 23, 1945, Representative Goodrich conferred at the plant with President Hibbard.'° Goodrich informed Hibbard that he was a repre- sentative of the Union, and announced that he represented the respondent's pro- duction and maintenance employees. Hibbard replied, "I doubt that very much." 'Goodrich then informed Hibbard that the Union had obtained applications from the majority of the employees and that under the provisions of the Act, it was the bargaining agent of all the employees. He then stated that he desired to discuss the three discharges of the previous Saturday. Hibbard refused to dis- cuss the discharges and stated that he had run the plant for many years and would continue to do so without outside interference Goodrich thereupon in- formed Hibbard that the respondent might "have an election, or go into a cross- check of the payroll." Hibbard stated that he was not interested, that only five .or six employees were working, that the rest could have worked had they desired but because they did not, there was now no work for them After some further conversation, the meeting closed on Goodrich's statement that the Union would A twenty-sixth card , that of Harold Heckman, was revealed to have been executed on his behalf by Frank Lannon . Although Heckman mailed a formal written resignation to the Union on April 23, and thus indicated his pro forma acceptance of the situation, the undersigned, in view of the majority established by the Union without the Heckman application , considers it unnecessary to resolve the question of its validity and therefore excludes it in arriving at the Union 's majority. 10 The findings in this section hereof are based upon the undenied and credible testimony of Goodrich. ' WRIGHT-HIBBARD INDUSTRIAL ELECTRIC TRUCK CO., INC. 907 -probably file unfair labor practice charges against the respondent and that of -Hibbard "that no outsider was going to tell him how to run the business." ii Under all of the circumstances revealed by the record, it is clear, and the under- signed finds, that the respondent's refusal to recognize the Union and discuss matters of mutual interest with its representative was not based upon honest doubts as to its representation of the respondent's employees, but upon the fixed plan and purpose of the respondent to frustrate the efforts to self-organization of its employees and its positive rejection of the principles of collective bargaining. The undersigned finds that the respondent, as a part of its campaign to disrupt the Union, on and after April 23, 1945, failed and refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate -unit, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. E. The strike; the discharges; continuing interference and refusals to bargain 1. The strike and the discharges As related above, on the morning of April 23, the employees went out on strike in protest against the unfair labor practices of the respondent in discharging Lockemeyer, Brokaw, and Main on April 21. Twenty employees struck and a twenty-first, Arthur Huglison, did not work on account of illness. According to .Sebring, whom the undersigned credits, Hibbard on that morning advised him, "Since they [the employees who did not go to work] quit, let them stay off." Sebring advised the employees that if they did not go to work, they could get their final pay and releases at the office. None of them did so and on the same day 12 -Hibbard sent the 21 employees letters of discharge, enclosing their checks and releases, by registered mail. They were received by the addressees on April 24. The respondent contended that cancellation of its contracts made the discharges necessary. The plant had been engaged in filling war contracts since 1942. On April 16, 1945, 17 trucks remained for manufacture under its contract require- ments. Sebring explained at the hearing that 20 employees would have been sufficient for the purpose of completing them but that the entire complement of employees was retained for "making up parts for future business." He further related that beginning in March, Hibbard and he had from time to time discussed the imminent necessity of reducing the force. The evidence discloses, however, that on April 23, they had reached decisions neither as to the time of such reduc- tion, the number of employees to be severed, nor their identities. Both Hibbard .and Sebring admitted on the record that the strike precipitated the discharges. The respondent needed a force of 20 when it discharged 21 of its then- force of 32. It thus reduced its complement to 11, a point well below its needs As is hereinafter related, it immediately thereafter set about restaffing its force with additional employees and at the time of the hearing was working a 55-hour week with between 20 and 25 workers. It is thus admitted and abundantly clear that the strike motivated the dis- charges and that the sole criterion upon which employees were severed from their employment was the fact of their not having worked that morning.13 The right "Goodrich carried the Union 's applications on his person at the Interview. 12 It will be remembered that the respondent, through Hibbard, also refused to bargain collectively with the Union on this day. 13 The fact that Hughson was discharged despite his inability to work on account of illness bears out this conclusion . The respondent is found to have assumed that he had joined in the strike. Its mistaken belief does not, of course , relieve it of tl* responsibility for its action and Hughson is found to be in the same category as those whom it discharged because they actually struck. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to strike is specifically protected by the Act and discrimination against employees because they exercise, or are believed to have exercised, that right, be they union members or not, is illegal.14 The undersigned, upon the entire record, finds that the respondent discharged 21 employees, whose names are listed in Appendices A and B hereof, because they were members of the Union or engaged in concerted activities or both, or were believed by the respondent to have done so.16 It is further found that the respondent has thereby discriminated against said dischargees in regard to their hire and tenure of employment, thereby discourag- ing membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Continuing interference Concurrently with its mass discharge of strikers and in,tial refusal to bargain, the respondent continued its campaign of interference with the Union. Thus on April 23, through Sebring and Fridley, it caused and assisted union employees Heckman, Slocum, gad Harold Symonds, who did not go on strike, to prepare and mail to the Union written withdrawals therefroio. Sebring furnished shop notebook paper to Heckman and Slocum upon which to write their withdrawals, read them, together with that of Symonds, and personally mailed that of Heck- man for him. Parmalee, a non-union employee who did not go on strike and whom Hibbard subsequently rewarded by a 10-cent per hour raise for not having done so, testified without contradiction, and the undersigned finds, that on the same day Sebring asked him to urge union employee John Hicks, who had likewise not gone on strike, to execute a withdrawal. Parmalee did so but Hicks refused to accede to the respondent's wishes Sebring admitted showing the Symonds withdrawal to Hicks but testified that lie was unable to recall his reason for doing so. It is found that he urged Hicks to execute a similar document" It is found that the respondent, by the acts and statements of Sebring and Fridley, has interfered with, restrained, and coerced its employees in the exer- cise of rights guaranteed in Section 7 of the Act. 3. Discrimination against Hicks Hicks continued to work in the plant until April 25. The parties stipulated that if he were called as a witness , he would testify that on April 25, he spoke 14 Shortly after the strike, the respondent gave non-strikers Harry King, William Mur- phy, H. Parmalee, Fred Meeker , Myron Crosier, and Rodney Leroy, who were non-union members, and Clyde Slocum, who, as is hereinafter found, had withdrawn from the Union at the respondent's instance , special 10-cent per hour increases in pay. To some of them Hibbard explained that the increase was to take the place of the $1 per truck bonus. Na explanation for their raises other than the fact that they did not go on strike, is revealed in the record It is found that the respondent thus rewarded them for not having done so The complaint did not allege such action by the respondent to have constituted an unfair labor practice and counsel for the Board stated on the record that no such con- tention was made. Under these circumstances, the undersigned includes the finding merely because It casts further light on the motive of the respondent in discharging its striking employees Ii This is not to be construed as a finding that the respondent might not have been under the imminent, or then present, necessity of reducing its force and that some employees, absent discrimination , would not have been laid off or discharged. By its general dis- crimination, however, it has placed itself in a position where it must bear the consequences of such action , for "it rested upon the tortfeasor to disentangle the consequences for which it was chargeable from those from which it was immune ." See N. L. if. B. V. Remington Ra&d, Inc., 94 F. (2d) 862 (C. C. A 2), cert den. 304 U. S. 576. 1° Hicks was unavailable as a witness at the hearing and did not testify. WRIGHT-HIBBARD INDUSTRIAL ELECTRIC TRUCK CO., INC. 909 to Sebring, complained of the manner in which the respondent was releasing its employees, stated that he could no longer put up with it and was going home; that Sebring asked him to wait, and shortly thereafter handed him his release .and pay in full ; that Hicks told Sebring he was prepared to remain in the plant if the respondent so desired ; that Sebring referred him to Hibbard who was too busy to see Hicks; and that Sebring thereupon told Hicks he was through and to leave the plant. The undersigned accepts Hicks' stipulated testimony as true. It was corroborated by Sebring, who related that he "just got sick of hear- ing [Hicks] whine" and with Hibbard's approval, discharged him. In view of Sebring's futile efforts to cause Hicks to sign a withdrawal from the Union 2 bays before, the respondent's unceasing campaign against the Union as well as its need of manpower at the time of the discharge,, and all of the circumstances i evealed in the record. the undersigned is convinced and finds that the respondent discharged Hicks because he refused to withdraw from the Union and threatened to join in concerted activities with his colleagues who were on strike. It is found that by discriminating against Hicks in regard to the hire and tenure of his employment, thereby discouraging membership in the Union, the respondent has interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. 4 Further interference and refusals to bargain Beginning about April 25, the respondent began soliciting the return to work of certain striking employees Union employee Kenneth Coons, a striker, testi- fied without contradiction, and the undersigned finds, that on April 25, both Sebring and Fridley visited his home and asked that he return to work. Coons was non-committal. On April 27, Sebring again called on Coons, reiterated his request that he return to work, asked that he "hang on" to the last of the week because there were certain "agitators" in the plant whom the respondent desired "to sort out" from its employees before bringing others back. Coons did not return. Sebring testified, and the undersigned finds. that at about the same time he also requested striking employees George Peake, Burnisky. and Calvin Utter to return to work at the plant. Only Utter complied and returned on April 27. During the period from April 27 to May 11, 1945, the respondent employed 12 of the employees whom it discharged on April 24. In addition to Utter, they included Hughson, who was ill on the day of the strike, and Lloyd Johnson, who though not a union member, had joined the strike because he "wanted to be a man." On April 26, when Johnson visited the plant to get his tools, Hibbard gave him a 5-cent per hour raise in pay and asked that he return to work. John- son did so on April 27. Under the circumstances revealed by the record, it is found that by seeking to and causing the return to work of individual striking employees'` at a time when the Union was their collective bargaining agent, and by causing Heckman, Slocum, and Symonds to withdraw from the Union, the respondent has refused to bargain collectively with the Union and thereby, and by the statement Qif Sebring to Coons, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act 18 IT Their discharges having been found to have been discriminatory , they retained their status as employees of the respondent. 18 See Matter of Montgomery Word 4 Company, 37 N. L. R. B. 100, enf'd N. L. R. B. v. Montgomery Ward ,t Co., 133 F. (2d) 676 (C. C. A. 9), and Matter of Ellis-Klatscher cE Co., 40 N L. R. B. 1037, ent'd N. L. R. B. v. Ells-Klatscher d Co., 142 F. ( 2d) 356 (C. C. A. 9). 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in, connection with the operations of the respondent set forth 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 and is engaging in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent has discriminated in regard to the hire and tenure of employment of those whose names are listed in Appendices A and B hereof. It is possible that the employees discriminated against who have not been reinstated and whose names are listed in Appendix A hereof, might have been affected in their employment, absent the respondent's unfair labor practices, but the record furnishes no basis for determining the order in which they might have been laid off or discharged. The burden was upon the re- spondent to show what the situation would have been had it not discriminated against its employees. Under these circumstances it will be recommended that the respondent offer to such employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and in the event that there is insuffi- cient work for all such employees entitled thereto, dismiss, if necessary to pro- ride employment for those to whom reinstatement is to be offered, all persons newly hired after April 24, 1945. If there is not then sufficient work available for all employees, namely, the presently working employees and those to be offered reinstatement, all available positions shall be distributed among them without discrimination against any employee because of his union membership or activity or because he went on strike or did not work during the strike, fol- lowing the system of seniority or other non-discriminatory practice heretofore applied in the conduct of the respondent's business. Those employees, if any, remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list and thereafter offered employ- ment in their former or substantially equivalent positions as such employment becomes available and before other persons are hired for such work, in the order determined among them by said system of seniority or other non-dis- criminatory practice.18 Of those discriminated against, the following, whose names are listed in Ap- pendix B hereof, have been reinstated by the respondent as of the dates set opposite their names. It will therefore not be recommended that the respondent offer them reinstatement : Prosper Bankert___ April 27, 1945 Warren Knauss-----. April27, 1945 Willard Coons______ May 11, 1945 Edward O'Coyne____. April 27, 1945 Arthur Hughson____ April 30,1945 Frank Overslaugh___ April 39, 1945 Paul Iddings_______ April 27, 1945 Daniel Robyn_______ April 27, 1945 Lloyd Johnson-____ April 27, 1945 Harold Siegwalt_-___ May 4, 1945 Walter Kennedy___. April 28, 1945 Calvin Utter________ April27, 1945 39 See Mattter of E. H. Moore, Inc., 40 N. L. R. B. 1058, and Matter of Ford Motor Com- pany, 31 N. L. R. B. 994. WRIGHT-HIBBARD INDUSTRIAL ELECTRIC TRUCK CO., INC. 911 It has been found that the respondent has discriminated in regard to the hire and tenure of employment of Jacob Lockemeyer, Leslie Brokaw, Carl Main, and John Hicks, whose names are listed in Appendix C hereof. It will therefore be recommended that the respondent offer them immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges. It will be further recommended that the respondent make whole those whose names are listed in Appendices A, B, and C hereof 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 he would normally have earned as wages from the date of such discrimination to the date of the offer of reinstatement, less his net earnings 20 during said period.21 Back pay for those whose names are listed in Appendix B hereof shall terminate on the respectii e dates set forth above. It has been found that the respondent has refused to bargain collectively with the Union. It will therefore be recommended that the respondent, upon request, bargain collectively with the Union as the exclusive representative of its employees within the appropriate unit Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAw I International Association of Machinists is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of the employees whose names are listed in Appendices A, B, and C hereof, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. All production and maintenance employees of the respondent, excluding office, clerical, and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 4. International Association of Machinists was on April 19, 1945, and at all times thereafter has been the exclusive representative of all employees of the respondent in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. By refusing on April 23, 1945, and at all times thereafter, to bargain col- lectively with International Association of Machinists as the exclusive repre- sentative of its employees in the appropriate unit, the respondent has engaged 1113v "net earnings" is meant the definition of the term in Matter of Crossett Lumber Company, 8 N L. It. B. 440, and Republic Steel Corporation v N. L R. B , 311 U. S. 7. 21 As related above, about April 25 or 27, the respondent offered employees Kenneth Coons, Peake, and Bernisky the opportunity to work but they did not accept In the context of the unfair labor practices by the respondent found above, it is clear that such offers, particularly in the light of Sebring's statement to Coons that the respondent was taking occasion to "sort out" certain "agitators" from the plant as a result of the strike, were not such offers of reinstatement as are within the purview of the Act. See Matter of The Good Coal Company , 12 N. L. It. B. 136, 149 , and Matter of Draper Corporation. 52 N L R B. 1477, set aside on other grounds, N. L. R B. v. Draper Corporation, 145 F. (2d) 199 (C. C. A. 4), It follows that their rights are unaffected by such offers and that they are entitled to back pay from the date of the discrimination against them to the offer of reinstatement herein recommended 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 6. By interfering with, restraining, and coercing tts 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. 7. 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 foregoing findings of fact and conclusions of law, the undersigned recommends that the respondent, Wright-Hibbard Industrial Elec- tric Truck Co., Inc., Phelps' New York, 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 discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment, or any term or condition thereof ; (b) Refusing to bargain collectively with International Association of Ma- chinists as the exclusive representative of all production and maintenance em- ployees of the respondent, excluding office, clerical, and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, with respect to rates of pay, wages, hours of employment, and other conditions of employment ; (c) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of their right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activ- ities 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 effec- tuate the policies of the Act: (a) Offer to those whose names are listed in Appendices A and C hereof, im- mediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges, in the manner set forth in the Section entitled "The remedy" above, and place those employees, if any, for whom employment is not immediately available upon a preferential list in the manner hereinabove set forth, and thereafter, in said man- ner, offer them employment as it becomes available; (b) Make whole those whose names are listed in Appendices A, B, and C hereof, 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 he would normally have earned as wages during the appli- cable period, in the manner set forth in the Section entitled "Tile remedy" above, less his net earnings " during said period ; (e) Upon request, bargain collectively with International Association of Ma- chinists as the exclusive representative of all production and maintenance em- ployees of the respondent, excluding office, clerical, and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, with respect to 22 See footnote 20, above. WRIGHT-HIBBARD INDUSTRIAL ELECTRIC TRUCK CO., INC. 913 rates of pay, wages, hours of employment, and other conditions of employment ; (d) Post at its Phelps, New York, plant, copies of the notice attached hereto, marked "Appendix D." Copies of said notice to be furnished by the Regional Director for the Third Region, shall, after being duly signed by the respondent's representatives, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicu- ous 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 Third Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply therewith. 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 recommenda- tions, 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 November 27, 1945, 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 writing, setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of excep- tions 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 Re- gional Director. As further provided in said Section 33, should any party de- sire 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 transfer- ring the case to the Board. JosE ' L. HEKTOEN, Trial Examiner. Dated December 11, 1945. APPENDIX A Ralph Briggs Clarence Guard George Peake Anthony Burnisky Willis Kregloh Walter Quiggle Kenneth Coons Frank Lannon George Walthert APPENDIX B Prosper Bankert Lloyd Johnson Frank Overslaugh Willard Coons Walter Kennedy Daniel Robyn Arthur Hughson Warren Knauss Harold Siegwalt Paul Iddings Edward O'Coyne Calvin Utter APPENDIX C Jacob Lockemeyer Carl Main Leslie Brokaw John Hicks 692148--46-vol. 67-59 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX D 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 International Association of Machinists 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. Ralph Briggs Frank Lannon Jacob Lockemeyer Anthony Burnisky George Peake Leslie Brokaw Kenneth Coons Walter Quiggle Carl Main Clarence Guard George Walthert John Hicks Willis Kregloh We will make the employees named below whole for any loss of pay suffered as a result of the discrimination : Prosper Bankert Willard Coons Arthur Hughson Paul Iddings Lloyd Johnson Walter Kennedy Edward O'Coyne Frank Qverslaugh Daniel Robyn Warren Knauss Harold Siegwalt Calvin Utter 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. WRIGIIT-HIBBARD INDUSTRIAL ELECTRIC TRUCK Co., 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 80 days from the date hereof, and must not be altered, defaced, or covered by any other material.