General Motors Corp.

In the Matter of GENERAL MOTORS CORPORATION and UNITED ELECTRI- CAL, RADIO & MACHINE WORKERS OF AMERICA, CIO Case No. 14-C-1043.-Decided April 30, 1946 DECISION AND ORDER On December 28, 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, the respondent filed exceptions to the Intermediate Report and a supporting brief. On April 18, 1946, the Board heard oral argument at Washington, D. C., in which the re- spondent participated. The Union requested leave to file a brief in lieu of oral argument, but this request was subsequently withdrawn. The Board has considered the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the respondent's exceptions, brief, and oral argu- ment, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions noted below : 1. The Trial Examiner recommended that back pay be awarded to the striking employees from March 17, 1945, presumably on the theory that by removing the strikers from its pay-roll records on that day the respondent rendered futile any unconditional request for reinstate- ment by the strikers. The record, however, shows that the respond- ent's conduct in this respect was not communicated to the strikers. It therefore was not apparent to the strikers that a request for reinstate- ment would be futile at that time. Under the circumstances, we shall order that back pay be awarded to the strikers from March 20, 1945, the day on which the respondent refused discriminatorily the uncon- ditional request of the strikers to be reinstated to their jobs, which were still available. 67 N. L. R. B, No. 119. 965 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Since the respondent's plant ceased operations on August 14, 1945, the Trial Examiner recommended that in lieu of posting compliance notices in the plant, the respondent should mail copies of such notice to all its employees who were on the pay roll from March 17 to August 14, 1945, at their last known addresses, and should also cause to be published in a St. Louis daily newspaper of general circulation, the text of such notice. Under all the circumstances of this case, we are of the opinion that mailing copies of the notice to its former employ- ees will be adequate to effectuate the policies of the Act . The Board emphatically disagrees with the recommendation that any notice be published in the local press. 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 , General Motors Corpora- tion, St. Louis, Missouri, and its officers , agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in any labor organization by dis- criminatorily discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization , to form labor organizations , to join or assist any labor organization , including the United Electrical , Radio & Machine Workers of America, CIO, 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 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 the employees listed in Appendix A, attached to the Intermediate Report, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their senior- ity and other rights and privileges , when and if its operations are resumed at the Chevrolet-Shell plant at St. Louis, Missouri ; (b) Make whole the said employees for any loss of pay they may have suffered by reason of the respondent's discrimination against them by payment to each of them a sum of money equal to the amount which he normally would have earned as wages during the period from March 20, 1945, to August 14, 1945, less his net earnings during said period, and also in the event that the Chevrolet -Shell plant is reopened GENERAL MOTORS CORPORATION 967 and operations are resumed which require the services of employees possessing the same or equivalent qualifications, from the date of such resumption of operations to the date of the respondent's offer of rein- statement, less his net earnings during such period; (c) Mail to all the employees who were on its pay roll from March 17 to August 14, 1945, at their last known addresses, copies of the notice attached to the Intermediate Report marked "Appendix B".1 When and if the operations performed at the Chevrolet-Shell plant are resumed at the same plant or elsewhere in St. Louis, copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by the respondent's representa- tive, be posted by the respondent, immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by, the respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Fourteenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT RI Ryburn L Harkler, for the Board lie Henry li Hogan, of Detroit, 'Mich, by Messrs. William S. 0ldani and Tiairy S Benjamin, Jr, for the respondent Jtr Wayne Stoner, of St Louis, Mo, for the Union STATEMENT OF TIDE C vSE Upon an amended charge filed November 8, 1945, by United Electrical, Radio & Machine Workers of America, CIO, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Four- teenth Region (St. Louis, Missouri), issued its complaint, dated November 8, 1945, against General Motors Corporation, 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 S (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein called the Act Copies of the complaint and notice of hearing thereon were duly served upon the respondent and the Union With respect to the unfair labor practices the complaint alleges, in substance. (1) that on March 17, 1945, the respondent discriminatorily discharged and there- titter refused to reinstate the 29 employees listed on "Appendix A" attached hereto, 1 Said notice, however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words "The Recommendations of a Trial Examiner " and substitut- ing in lieu thereof the words "A Decision and Order " 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the reason that they engaged in concerted activities and went on strike, thereby discouraging its employees from engaging in concerted activities; and (2) that by these acts the respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act The respondent has filed no answer. In effect, through witnesses and by statements of its counsel at the hearing, the respondent denied that it had engaged in any unfair labor practices Pursuant to notice, a hearing was held in St Louis, Missouri, on December 3 and 4, 1945, before the undersigned Trial Exanuner, duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, and the Union by a representative. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. ' At the close of the Board's case, counsel for the respondent moved that the complaint be dismissed upon the grounds that the Board had failed to adduce evidence to sustain the allegations of the complaint The motion was denied. At the close of the hearing, ruling was reserved upoii similar motions by counsel for the respondent. These motions are disposed of by the findings and con- clusions set forth hereinafter. Also at the close of the hearing a motion, made by counsel for the Board without objection, was granted to conform the com- plaint to the proof in minor particulars. After the taking of testimony counsel for the respondent and for the Board participated in oral argument before the Trial Examiner. Since the close of the hearing the Trial Examiner has received a brief from counsel for the Board.' Upon the entire record in this case, including the oral arguments and the brief and from his observation of the witnesses, the Trial Examiner makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT General Motors Corporation is a Delaware corporation, with principal offices in New York, New York, and Detroit, Michigan. It operates through several incorporated divisions, one of which is known as the Chevrolet Motor Division. Chevrolet Motor Division operates plants at various localities in the United States. At the request of the United States Government, it operated a plant at St. Louis, Missouri, known as the Chevrolet-Shell Division. This plant was in operation for about a year until August 14, 1945. On or about that date, all manufacturing activities at this plant terminated. The plant itself was wholly owned by the United States Government. During the operation of this plant, the only one here concerned, the respondent manufactured munitions, more particularly shells for the United States Govern- ment. More than fifty per cent in value of the raw materials used in the production of the shells came to the plant from sources outside the State of Missouri. Completed shells valued at more than one million dollars were delivered by the respondent F. O. B. Chevrolet-Shell Plant, St. Louis, Missouri. For the purpose of this proceeding, the respondent admits that it is engaged in commerce within the meaning of the Act.2 'At the hearing all counsel were given 10 days within which to file briefs. At the expiration of that time, the Trial Examiner granted an extension of time upon request of counsel for the respondent to December 21. On the last mentioned date a request from the same counsel for a further extension was denied. 2 The above findings are based upon a stipulation fo all parties made at the hearing. GENERAL MOTORS CORPORATION IL THE ORGANIZATIONS INVOLVED 969 United Electrical, Radio & Machine Workers of America, CIO, is a labor organi- zation admitting to membership employees of the respondent. III THE UNFAIR LABOR PRACTICES A. Setting in which relevant events occurred As noted above the respondent operated its Chevrolet shell plant at St. Louis for about a year. All production at the plant ceased on or about V-J Day, August 14, 1945. Former employees in only one department of the plant are involved in the issues of this proceeding. This department, called the forge shop, was one in which sl eel billets were forged into shells. Forge shop employees worked in three 8-hour shifts, and as operations expanded, a steadily increasing number of em- ployees were hired in this department until V-J Day. In mid-March, 1945, from 50 to 60 employees worked on each of the forge shop shifts. At that time John Hurley, who for many years had been a General Motors employee, was serving as superintendent of the department, in charge of all three shifts. Early in March the Union began organizing employees at the plant. No evi- dence was introduced at the hearing tending to show that the respondent inter- fered in any way, before March 17, with organizational activities of this or any other labor organization at the plant That management was aware of such efforts is reasonably established, however, by the testimony of Personnel Director T. E Melson, who stated that about ten days before March 17 he attended, at the Beard's Regional Office, a conference relating to representation petitions filed by several unions, including the labor organization involved in this proceeding.' B. Events at issue 1. Summary of the issues It is undisputed that on March 17, 1945, the employment of the 29 workers named in the complaint was terminated following a controversy which arose shortly before that date concerning the hourly rate to be paid to forge shop em- ployees of 90 days' service. It is also undisputed that at about 9 o'clock on the morning of March 17 these 29 employees and others of the first shift concertedly stopped work and thereafter, during the same morning, were interviewed by Superintendent Hurley. It is further undisputed that the 29 named employees were removed from the respondent's pay-roll immediately after their interview with Hurley and were later refused reemployment, although for many weeks new employees were being hired continuously. The Board contends that the 29 employees engaged in a strike and (1) were discharged or (2) were refused reinstatement when they made an unconditional offer to return to work, and that they were thus deprived of employment dis- criminatorily because they had engaged in concerted activities, thereby discour- aging membership in a labor organization. The respondent contends: (1) that these employees voluntarily quit: or (2) that they were properly discharged and denied reemployment for a number of reasons, including the allegations that (a) the 29 employees, as a "minority" group, tried to "force recognition as collective bargaining agents" ; (b) their s At the meeting the respondent offered to stipulate to a consent election. Sometime after March 17 an election was held. ( Cases Nos 14-R-1149, 1150 , 1163 and 1184 ) 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD actions constituted a "breach of contract"; and (c) the strike was "illegal" in that the employees left their work but not the premises. 2. The dispute concerning wages When being hired for work in the forge shop new employees were informed by members of the personnel staff as to wages they would receive. Whatever such new employees were told by interviewers , a point of dispute, they actually started as trainees at an hourly rate of 75 cents and gradually received in- creases up to $1 09. By March 17 a few utility or relief men, who had become experienced and were serving in the capacity generally known as that of lead men, were being paid $1.14 per hour. According to the pay -roll data in evidence, none of the forge shop employees involved in this case was receiving more than the last mentioned hourly rate. Shortly before March 17 a dispute arose between some of the forge shop em- ployees and management as to the top wage which they were to receive when they had worked 90 days. By that date at least three employees had completed 90 days' service; Fred Gore` having been employed on December 16, L. P. Jordan on December 12, and E. C. Morris on December 13, 1944. Credible evidence establishes and the Trial Examiner finds that by the morn- ing of March 17 a number of the employees were of the reasonably founded belief that management had withdrawn its promise to pay them an hourly rate of $1.24 after completing 90 days of service. ' About a week before March 17, according to the testimony of both the following individuals , Hurley told Per- sonnel Director Melson that forge shop employees were complaining that they had been promised this amount. Although , according to Melson 's testimony, he promptly checked with interviewers and was told, in effect, that no promise of this amount had been made , there is no evidence that any immediate effort was made by him or any other management representative to disclaim respon- sibility for a condition which he knew existed or to inform the employees con- cerned that a top rate of $124 had not been promised and would not be paid. On March 15 Fred Gore, a utility man employed on December 16, 1944, completed his 90 days' service . He went to Hurley and asked if he was going to receive the $1.24 rate. After talking with Hurley, Gore told employee Archie Blaine, another utility roan, that the superintendent had declared that so far as he knew there was no such rate . This information was passed on to other men in the department.' - 4 An unchallenged statement by counsel for the respondent at the hearing that Gore's 90 days did not expire until March 17 was apparently based upon an inaccurate calcula- tion or upon information not offered in evidence. According to pay -roll data introduced by the respondent Gore began work on December 16. Thus his service record would actually total 16 days in December, 31 days in January , 28 days in February, and on March 15 he served his ninetieth day. Even if figured on the basis of 30 days for each month, the result would be the same 5 The testimony of employee Archie Blaine is not directly denied that he was told by a personnel interviewer when being hired that he would receive this amount at the end of the ninety-day period. No personnel interviewer was called as a witness . Nor did Superintendent Hurley, a witness , deny having told Blaine and three other relief men, about February 24, that wage rate "tops " in the department was $1 .24, and that he hoped to get more for the employees as soon as the department was in full production. 'The Trial Examiner makes no finding as to what Hurley actually told Gore on this occasion, but only as to Gore's report to Blaine, which was passed on to others. Gore was not a witness As to this interview Hurley 's testimony, when questioned by counsel tor the Board during the first day of the hearing, is inconsistent with that given by him the following day, when called as a witness for the respondent . On the first occasion he testified to the effect that he told Gore on March 15 that he knew of no such arrange- ment , but promised to find out for him and sent him back to work. He also testified that GENERAL MOTORS CORPORATION 971 3. The strike of March 17 and events immediately following At the beginning of the first shift on the morning of Saturday, MMarch 17, all forge shop employees gathered near the time clock. They agreed and declared chat they would not go to work until they found out whether $1 24 was to be paid When Hurley came into the department a short time after the shift began, he sent for Gore After talking with the superintendent, Gore reported to the men that they were to go to work and that Hurley would let them know about the rate at 9 o'clock. All employ ees went to work, as Gore instructed, rnd they continued until 9 o'clock At that hour Huiley did not reappear, and all employees in the department stopped work. After a time Hurley returned, and summoned to his office the lead men, including Gore and Blaine. He told them to order the men back to work The lead men followed Hurley's instruc- tions. but the men refused to go to work until they found out about the wage sate Thereupon Foreman Mills sent the entire shift to Hurley's office, and in ironr of it they congregated.' One by one, the employees were then called into Hurley's office. In substance Hurley asked each of the 40 or 45 employees,' interviewed separately, why he was in there When they stated that they wanted a definite understanding >ibout the $124 rate, Hurley refused to make any commitment, but insisted that they go back to work. From those who declined to work until receiving such definite information, the superintendent demanded their employee identification badge and sent them from the plant with "pass out" slips. Upon the first five or six of these passes he wrote "Hone-Strike", and upon the remainder of the 29 passes issued by him that morning he wrote "Quit."' be had no other contact with any employee thereafter, on the wage question, until March 17 However, called the next day as a witness for the respondent, Hurley testified that on March 16 Gore had come to him, had stated that he would finish his 90 days' service the next day , and bad asked if he was going to get $1 24 . Upon Gore 's informing him that the rate had been promised him by someone in the employment office the superin- tendeni , according to his testimony , took the employee to the personnel office where the identified interviewer denied having made any such promise Doubt as to the accuracy of the superintendent 's second version is cast by the recorded fact that Gore's 90 dais' service expired on March 15, not March 17 Furthermore, Hurley's testimony, (1) that Gore was "satisfied " upon leaving the personnel office, and (2) that he agreed that lie must have confused $1 04 with $1 24, lacks inherent probability , since as to (1) the nett morning Gore led a strike of employees in protest against management 's failure to provide an understanding as to the $1 24 rate, and as to (2) at the time of the alleged interview with the personnel interviewer Gore was already receiving :61.14. 4 The findings as to these incidents are based upon the straight-forward and credible testimony of Blaine , which does not differ in major details from that of Hurley The Trial Examiner can place no reliance upon Hurley 's testimony as to these events where it is inconsistent with that of Blaine Hurley testified that he was "confused" on the morning of March 17, and it is reasonable to believe that his recollection as a witness was likewise uncertain Mills was not a witness 8 Apparently some of the 50 or more employees on that shift did not wait to be called lain the office, but went back to work during the period when the 29 employees were being sent out of the plant, as described hereinafter. The findings as to these interviews rest upon the credible and consistent testimony of 4 of the 29 employees named in the complaint . These four were the only employee wit- ne,snes called by the Board to testify as to the interviews of March 17. It is reasonable to rifer that all such interviews were similar in substance. G. L. Williams, one of the i inploi ees receiving a "Home-Strike " slip, testified as follows : . I went in and he said "Well, what are you in here for?" I said "Well, I am in here with the rest of the boys. They are in here to see about this $1 24 " I said "Soiree of them say they have been here a period of 90 days and they ain ' t got the $1 24, and they say they wasn't going to get any more than $1 .09 top wages. When I coupe here they told me in the employment office that I would get $1 24 top price" . . . He say, "Well, I want you to go back there and go to work." I say, "Well, I want 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to the testimony of Personnel Director Melson, the respondent removed all 29 employees , named in the complaint, from the company pay-roll on the same day, March 17, and "clearance slips" for them were processed that morning. 4. Ma7iagemen,t's refusal to reinstate the 29 employees Upon being ushered from the plant the 29 employees and other employees of the forge shop , on the second and third shifts, gathered in front of one of the gates. One of the Union's field organizers , Wayne Stoner , approached them and when told that the forge shop employees were on strike urged them to come to a union local hall nearby. William Sentner , a union general vice-president , was sum- moned to the meeting. Sentner urged them to go back to work. All of the employees there gathered signed applications for union membership , and selected a committee of six, some from each of the three shifts, to negotiate their return to work. Being late in the day , the employees adjourned until Monday morning. An undetermined number of employees did not report for work on the second and third shifts, either on Saturday or on the following Monday work, but I am with the other boys . If they can't get their $1 .24, can 't get an understanding about that $1.24, and I can't get an understanding about my $1.24, about whether I get it or not, I am with the other boys. Whatever they do is what 1 am doing " . . He said "I am trying to do the best for you and I want you to go out and go to work". I said, "Well , I am still waiting to find out about the $124 with the rest of the boys. If they go back to work under $1.24 without an under- standing, I will, too,' So he writ me out a pass . I started away from his desk and he said "Here, give me our badge," so I handed him niy badge . . . . It [the pass] showed "Home Strike." Lester Joi don testified When I walked into the office, Mr. Hurley asked me why I was in there I told him there nos a dispute on wages, and I wanted a definite understanding about whether or not we was supposed to receive $1.24 Mr. Hurley asked me would I want to work. I told him I would He said "Will you go on out and go to work ?" I told him I would if I found out whether we would get the $1 24, but not until then . He then asked we for my badge and wrote out a slip saying "Quit." A. L. Willis testified : I was the fourth man that went into Mr. Hurley's office. Upon entering the office, getting to his desk, he asked what did I come in for . I told him I came in, that I wanted some understanding about the $ 1 24 which was promised when I accepted the job from Mr. McDonald of the Personnel Office. He told me "I am not talking about the $1 24 What I want to know is if you want to work" . . . So he said. " Well, do you want to go back to work ? That is what I am asking you, or do you want the pass out?" I said "I do not want to quit ; if I get an understanding about the $1.24 I was promised when I was hired , I will go back to work." He said "Well, if you are not going back" . . . he wrote me a pass and asked me for the badge Willis' pass out read "Home-Strike" Blaine's testimony was to the same effect. He received a pass with "Quit" written upon it. When receiving this slip, according to his testimony , he asked Hurley if he was fired He further testified : He said "No , you are not fired , you are laid off temporarily until we see about the wage rate and you will he called back " Blaine was kept in the office until Hurley had finished interviewing five or six more employees in the same vein and then a plant protection guard ushered them from the plant. Hurley did not specifically deny the testimony of Williams , Jordan or Willis He denied having told Blaine that he was temporarily laid of, but as noted heretofore he also admitted as a witness that he was "confused" on the morning of March 17 . Hurley's version of his interviews contain many inconsistencies At one point he claimed that most of the employees interviewed "did not know what it was all about ;" at another point he testified that he was aware, at the time, that they knew a wage controversy was in- volved . Hurley also claimed that at no time that morning did he think there was a "strike", and yet he admitted that he wrote "strike" upon several of the pass-out slips issued by him GENERAL MOTORS CORPORATION 973 The plant was closed on Sunday At about 6:30 Monday morning, March 19, 40 or 50 of the employees again met at the union hall. The committee went to a plant gate Gore, one of the committee members, sent in word by a plant guard that they wanted to see Melson about returning to work. After a long delay, the guard reported to them that Melson had nothing to talk to them about, and the committee returned to the union hall. Sentner thereupon telephoned to Melson . The personnel director told him, in effect, that the 29 employees on the first shift had quit their employment the previous Saturday and would not be reinstated, but that those of the second and third shifts could return. In a let- ter of the same date, received by Melson the next day, Sentner confirmed his understanding of the telephone conversation, and offered the Union's services, on behalf of its members in the forge shop, in an effort to settle the matters giving rise to the dispute and to get the men back to work. Both in his tele- phone conversation and in the letter Sentner informed Melson that the 29 men (lid not consider that they had quit, but that they had been sent home, and he cited the notation appearing on some of the "pass out" slips in support of the reasonableness of their contention However, Melson did not reply to the letter, and according to his own testimony told Sentner in the telephone conversation that the 29 men had been removed from the company pay-roll. Also according to Melson's testimony, he informed Sentner We considered them as undesirable employees, persons not stable on the job, and it wasn't our policy for a man to be allowed to leave employment one day and hire him back the next day. At 8 o'clock Tuesday morning, Sentner informed Melson by telephone that all union members , which included the 29 employees herein involved, were being instructed to return to work without any reservation as to negotiating the question of the wage dispute. And by letter, received by Melson on Wednesday, Sentner confirmed his message. Melson did not reply to this letter Also on Tuesday organizer Wayne Stoner made three attempts by telephone to gain permission from Melson for the unconditional return of the employees to work. On the first occasion Melson declined to discuss the request, on the grounds that no bargaining relationship existed between the respondent and the Union On the second occasion Melson evaded a direct commitment as to the request but said that if the 29 men were allowed to work they, must come back as new employees, and -suggested a third call In the final conversation with Stoner that day Melson definitely refused to permit the 29 employees to resume work Fur- thermore, on the same day an undetermined number of the 29 employees appeared at the plant gates, seeking to resume work, but were denied entry by the guard. Although on Tuesday and Wednesday, March 20 and 21, employees of the second and third shifts were allowed to resume their employment, all 29 employees named in the complaint were refused reinstatement on those 2 days and there- a f ter.'0 C Conclusions as to the issues The Trial Examiner (oucludes and finds that the 29 employees named in the complaint did not quit their employment on March 17, but that they engaged in an economic strike Credible evidence as to the conduct of both the employees and of Hurley that day permits no other reasonable conclusion as to the nature of the employees' intent and action The employees left their work and demanded an understanding about a wage dispute which both Hurley and Melson were ") The testimony of several witnesses , both for the Board and for the respondent, is in general agreement as to the events following Hurley's interviews with forge shop em- ployeee on Saturday. 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aware had existed for several days. Hurley refused to provide that understand- ing, but in his interviews gave all the employees the choice either of going back to work at once or of leaving the plant. Twenty-nine of the number interviewed chose to pursue their efforts to obtain a wage understanding by not returning to work and by going outside the gate, where they were joined by fellow-workers of the second and third shifts The subsequent conduct of the men in forming a committee to negotiate terms under which they might return to work, and their later concerted effort, through the Union which they had designated as their representative, to return to work unconditionally and without negotiation of the dispute, were plainly actions of employees engaging in an economic strike. Hurley's own testimony establishes that he knew all of the 29 men whom he interviewed on Saturday morning were there because of the wage dispute, and that he knew they had previously stopped woi k the same morning for the same reason That he, himself, considered the employees who would not immediately abandon the work stoppage to be striking, and not quitting, is made clear by the fact that he wrote "Strike" upon the first five or six "pass out" slips issued to them " It is further concluded and found that the respondent effectively discharged the 29 employees on March 17, and that it thereafter at all times refused to rein- state them. The testimony of Melson, quoted above, establishes beyond question that the respondent removed these employees from the pay-roll on that date and decided that it would not, under any circumstances, reinstate or reemploy them. In the light of the respondent's acts of formally terminating the 29 employees' employment and of thereafter refusing to permit them to return to work, when they attempted to do so without reservation, it may not reasonably be claimed that the respondent was engaging in a "tactical maneuver," designed to induce strikers to abandon the strike and to resume work.32 The respondent decided on March 17 not to reemploy the 29 workers under any circumstances It refused their unconditional request for reemployment on March 20, and at all times thereafter. In the oral argument and in his brief, counsel for the respondent contends: (1) that the 29 employees quit voluntarily on the morning of March 17; and (2) that "if the Board rules this was an economic strike," the respondent should not be required to reemploy the 29 workers because (a) they violated an "implied" contract of employment; (b) because they endeavored to force the respondent to bargain with a minority group when no bargaining agent had been certified; and (c) the strikers did not leave the premises when they stopped work at nine o'clock on March 17. Contention (1) has been disposed of above. As to conten- tion 2 (a), no evidence of the existence of actual, individual contracts betwebn the employer and the employee was offered Counsel apparently relies upon his statement at the hearing : Any time an employee is hired by the company a contract results. He asks us for a job, and we offer the job at certain rates. Let us say it is an implied contract. The contention is without merit. To hold otherwise would be to stamp all strikes as illegal. Contention 2 (b) is likewise without merit. In their con- certed activities the employees sought only: (1) to obtain an understanding concerning a wage dispute, and (2) to return to work. The Union served simply 13 Although repeatedly questioned, Hurley testified that he could not explain, other than to state that he was "confused", why he made notations of "strike" on the first few slips and thereafter wrote "quit". 12 See Majestic Manufacturing Company, 64 N. L . It. B 950. GENERAL MOTORS CORPORATION 975 as an intermediary for the employees in the latter attempt Both through the Union and directly the respondent refused to reemploy the workers. Finally, contention 2 (c) is without merit There is no evidence that any employee refused to leave the premises when instructed to do so They conducted themselves reasonably when they stopped work at 9 o'clock Saturday morning, by waiting on the premises for information which they were informed that Hurley was to obtain for them In summary, it is concluded and found that the respondent discriminatorily discharged the 29 employees named in the complaint on March 17, 1945, and thereafter refused to reinstate them, because they went on strike and engaged in concerted activities. An employer may not thus punish his employees merely because they have gone on strike.13 It is expressly concluded and found that by discriminatorily discharging and refusing to reinstate the 29 employees named in the complaint the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, including the right to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection. It is also expressly concluded and found that by discriminatorily discharging and refusing to reinstate the 29 employees named in the complaint the respondent discouraged membership in labor organizations." IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth lit Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since the undersigned has found that the respondent has engaged in 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 discriminated as to the hire and tenure of employment of the 29 employees named in Appendix A, attached hereto, on March 17, 1945. It has also been found that the respondent ceased its operation of its ^St Louis shell plant on August 14, 1945 Whether the discharge of the 29 em- ployees be deemed a violation of Section 8 (1) or 8 (3) of the Act, it is necessary in order to effectuate the policies of the Act, and it will be recommended that, 13 N L. R. B. v Mackay Radio A Telegraph Co., 304 U. S 333 , 344-347 ; Wilson ii Co V N. L. R B., 124 F. ( 2d) 845, 847-848 (C C. A. 7) 14 In N. L. R B . V. Tovrea Packing Company, 111 F ( 2d) 626 , 629 (C C . A 9), enforc- ing as mod 12 N. L. R . B. 1063 , cert denied 311 U S 685 , the Court sustained the Board's position that action of a group of unorganized employees in submitting a concerted wage demand to their employer in itself constituted them a "labor organization" within the meaning of the Act, and that the discharge of an employee for voicing that demand was in violation of Section 8 (3) and Section 8 (1) of the Act . It follows that by punishing employees who engaged in concerted action , management discouraged its employees from continuing to act in concert through any labor organization , as defined by Section 2 (5) of the Act. The term "labor organization" is there defined as "any organization of any kind . in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances , labor disputes , wages, rates of pay, hours of employment, or conditions of work." 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when and if the respondent shall resume such operations at St. Louis, it offer immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, to the em- ployees named in Appendix A. It will also be recommended that the respondent make each of said employees whole for any loss of pay he has suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned as wages from March 17, 1945, to August 14, 1945, and, in the event the plant is reopened and operations are resumed which require the services of employees possessing the same or equivalent qualifications, from the date of such resumption of operations to the date of offer of reinstatement, less his net earnings during these periods 1° The recommendation that the respondent cease and desist from certain unfair labor practices is also predicated upon the finding that the respondent's course of conduct in discharging the 29 employees discloses a purpose to defeat self- organization and its objects among the employees. As the Circuit Couit of Appeals for the Fourth Circuit has stated, the "discriminatory discharge of an employee . . . goes to the very heart of the Act " 16 Because of the respondent's unlawful conduct and its underlying purpose, the undersigned is convinced that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed, and that danger of their commission in the future is to be anticipated from the respondent's conduct in the past." The preventive purpose of the Act will be thwarted unless the recommended order is coextensive with the threat. In order, therefore, to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby to minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the re- spondent cease and desist from in any manner infringing upon the rights guar- anteed in Section 7 of the Act. For the reason that the respondent's shell plant at St. Louis is now not in operation, the usual recommendation that certain compliance notices be posted in conspicuous places throughout the plant will not suffice to effectuate the policies of the Act It will therefore be recommended ; (1) that the respondent shall cause to be published, in a St. Louis daily newspaper of general circulation, the text of the notice attached hereto, marked "Appendix B"; the size and format of such publication to be in accordance with the requirement for legal notices under the laws of the State of Missouri; and (2) that the respondent shall cause copies of said notice to be mailed to all employees, at their last known addresses, who were on the respondent's pay-roll from March 17, 1945. to August 14, 1945. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: is By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge , and the subsequent necessity of seeking employment' elsewhere . See Matter of Crossett Lumber Company, 8 N. L R, B 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings See Republic Steel Corporation v N L. R B. , 311 U S. 7. 'O N, L. R. B v Entwhistle Manufacturing Company, 120 F ( 2d) 532 , 536 (C C A 4) ; see also N. L. R. B. v. Automotive Maintenance Machinery Company , 116 F ( 2d) 350, 353 (C. C. A. 7), where the Circuit Court of Appeals for the Seventh Circuit observed "No more effective form of intimidation nor one more violative of the N L R Act can be con- ceived than discharge of an employee because he joined a union . . . irN. L. R B v Express Publishing Company, 312 U S 426. GENERAL MOTORS CORPORATION CONCLUSIONS OF LAW 977 1. United Electrical, Radio & Machine Workers of America, C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act. 2. The forge shop employees who acted concertedly on March 17, in the manner and for the purposes described herein, were a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of the employees listed in Appendix A, attached hereto, thereby discouraging member- ship in labor organizations, including the United Electrical, Radio & Machine Workers of America, C. I. 0., the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. By discriminating in regard to the hire and tenure of employment of the said employees, thereby discouraging membership in a labor organization, and by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the Trial Examiner recommends that the respondent, General Motors Corporation, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in any labor organization by discriminatorily discharging or refusing to reinstate any of its employees, or in any other man- ner discriminating in regard to their hire or tenure of employment or any term or condition of their employment ; (b) In any other manner interfering with,- restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist any labor organizations, including the United Electrical, Radio & Machine Workers of America, C I. 0, 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 Trial Examiner finds will effectuate the policies of the Act : (a) Offer to the employees listed in Appendix A, attached hereto, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, when and if its operations are resumed, as herein described, at St Louis, Missouri ; (b) Make whole the said employees for any loss of pay they may have suffered by reason of the respondent's discrimination against-them by payment to each of them Of a sum of money equal to that which he normally would have earned as wages but for the respondent's discrimination against him, in the manner set forth in the Section entitled "The remedy" ; (c) Cause to be published and to be mailed, in the manner set forth in the Section entitled "The remedy," copies of the notice attached hereto, marked "Appendix B". When and if operations are resumed at the same plant or else- where in St. Louis, copies of said notice, to be furnished by the Regional Director of the Fourteenth Region, shall, after being duly signed by the respondent's rep- 692145--46-vol. 67-63 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resentative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Fourteenth 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 herewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies said Regional Di- rector, 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 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 state- ment of. exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director As further provided in said Sec- tion 33, should any party desire permission to argue orally before the Board, request therefor must me made in writing within ten (10) days from the date of the order transferring the case to the Board C. W. WHITTEMORE, Trial Examiner. Dated December 28, 1945. APPENDIX A William Bailey Will Hodges Lige Peeler Archie Blaine Lee Houston James Perkins Lawrence Carroll Harrison Humphrey Roscoe Jefferson, Jr. Frank Chapman Richard Jones Harold Smith Robert Dotson Jurmon Jordan Oliver Smith Sylvester Ester Lester Jordan Earnest Sykes Gennis Graham Dale Kennel Earl Williams Paul Grimes Willie Minnis Arthur Willis Fred Gore Eugene R. Moore Garlin Williams James Hairston E. C. Morris APPENDIX B 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 United Electrical Radio & Machine Workers of America, GENERAL MOTORS CORPORATION 979 CIO, or any other labor organization , to bargain collectively through repre- sentatives 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, when and if the Chevrolet-Shell Plant is reopened . We will make them whole for any loss of pay suffered as a result of the discrimination. William Bailey Will Hodges Lige Peeler Archie Blaine Lee Houston James Perkins Lawrence Carroll Harrison Humphrey Roscoe Jefferson, Jr.- Frank Chapman Richard Jones Harold Smith Robert Dotson Jurmon Jordan Oliver Smith Sylvester Ester Lester Jordan Earnest Sykes Gennis Graham Dale Kennel Earl Williams Paul Grimes Willie Minnis Arthur Willis Fred Gore Eugene R. Moore Garlin Williams James Hairston E. C. Morris 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. GENERAL MOTORS CORPORATION 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.