General Motors Corp.

In the Matter of GENERAL MOTORS CORPORATION, BUICK MOTOR DIVISION, MELROSE PARK PLANT and THE FOREMAN'S ASSOCIATION OF AMERICA Case No. 13-C-2540.Decided June 28, 19416 Mr. Leon A . Roseil, for the Board. Mr. Henry M. Hogan, by Messrs. Harry S. Benjamin and William J. Oldani, of Detroit, Mich., for the respondent. Mr. William Valiance, of Detroit, Mich., for the F. A. A. Miss Kate Wallach, of counsel to the Board. DECISION AND ORDER On June 23, 1945, Trial Examiner Louis Plost issued his Inter- mediate Report in the above-entitled proceeding, finding that the re- spondent 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 out in the copy of the Inter- mediate Report attached hereto. Thereafter, the respondent filed ex- ceptions to the Intermediate Report. On June 24, 1946, the Board heard oral argument at Washington, D. C. The respondent and the Union participated in the argument. The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions of the respondent, the contentions advanced at the oral argument before the Board, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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 Corporation, Buick Motor Division, Melrose Park, Illinois, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in the Foreman's Association of America, by discharging, or transferring to production jobs any of 69 N. L. It. B., No. 17. 191 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its supervisory employees , or by discriminating in any other manner in regard to their hire or tenure of employment or any term or con- dition of their employment; , (b) In any other manner interfering with, restraining , or coercing its supervisory employees in the exercise of the right to self-organiza- tion, to form, join, assist, or bargain collectively through Foreman's Association of America , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to J. Vic Bagdonas and Dale De Bolt immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; (b) Make whole J. Vic Bagdonas and Dale De Bolt, for any loss of pay they may have suffered by reason of the respondent 's discrimi- nation against them, by payment to each of them of a sum of money equal to that which each normally would have earned as wages from the date of his discharge to the date of the respondent's offer of rein- statement , less his net earnings during said period ; (c) Post at its plant at Melrose Park, Illinois, copies of the notice attached hereto, marked "Appendix A." Copies of said notice to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty ( 60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Thirteenth Region in writ- ing within ten (10 ) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. GERARD D. REILLY, dissenting: This case is distinguishable from the Soss case 1 in that the point at issue is not a discharge or blacklisting of a foreman for union mem- bership but rather the question of whether or not a company may tell a foreman that if he elects to engage in concerted activity for the pur- pose of securing collective bargaining representation, he may not re- tain his status as a supervisor but must become a rank and file employee or elect to refrain from such concerted activity in the future. 1 Matter of So88 Manufacturing Company, et al., 56 N. L. R B. 348. GENERAL MOTORS CORPORATION 193 Since it seems to me, for the reasons that I set forth in my dissenting opinions in Packard 2 and Jones & Laughlhi,3 that collective activity among foremen for this purpose is contrary to the policies of the Act, I believe this complaint should be dismissed. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our supervisory employees in the exercise of their right to self-organization, to form, join, assist, or bargain collectively through Foreman's Association of America, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to J. Vic Bagdona and Dale De Bolt im- mediate and full reinstatement to their former and 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. All our supervisory employees are free to become or remain mem- bers of the above-named union. We will not discriminate in regard to hire or tenure of employment or any term or condition of employ- ment against any supervisory employee because of membership in or activity on behalf of said labor organization. GENERAL MOTORS COMPANY, BuICK MOTOR DIVISION, Employer. Dated-------------------- By---------------------------------- (Representative ) (Title) NOTE.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Matter of Packard Motor Car Company, 61 N. L. R. B. 4. • Matter of Jones & Laughlin Steel Corporation, Vesta-Shannopin Coal Division, 66 N. L.R.B 386 701592-47-vol. 69-14 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Leon A. Rosell, Esq., for the Board. Henry M. Hogan, by Harry S. Benjamin, Esq., and William J. Oldani, Esq., of Detroit, Mich., for the respondent Mr. William Valiance, of Detroit, Mich., for the F. A. A. STATEMENT OF THE CASE Upon a charge duly filed by The Foreman's Association of America, herein called the F. A. A., the National Labor Relations Board, herein called the Board, by its Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated May 4, 1945, against General Motors Corporation, Buick Division, Melrose Park Plant, herein called the respondent, alleging that the respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notice of hearing were duly served upon the respond- ent and the F. A. A. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleged in substance : (a) that from on or about January 10, 1945, the respondent advised, urged, threatened, and warned its supervisory employees against becoming or remaining members of, or assisting or being represented by the F. A. A ; (b) that on January 17, 1945, the respondent discharged J Vic Bagdonas and Dale DeBolt, because of their membership in and activities on behalf of the F. A. A.; and (c) that by the foregoing conduct the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent filed no answer. Pursuant to notice, a hearing was held at Chicago, Illinois, on May 16 and 17, 1945, before Louis Plost, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the F. A. A. 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 outset of the hearing respondent moved for a continuance and for a bill of particulars.' The former motion was denied, and the latter granted in part and denied in part. During the hearing the undersigned granted, over objection of the respondent, a motion by counsel for the Board to amend the complaint' At the close of the hearing the undersigned granted, without objection, a motion of counsel for the Board to conform the pleadings to the proof on formal matters as to dates, names, and places. At the close of the hearing, motions of the respondent to dismiss the complaint were denied. The parties were afforded an opportunity to argue orally at the close of the hearing, and to file briefs with the undersigned. No arguments were made. A brief has been received from the respondent. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: I Apparently through Inadvertence, the motion for a bill of particulars was not filed. However, the transcript of the record clearly indicates its terms 2 The amendment was to paragraph 6 of the complaint It added to the allegation that the respondent advised, urged, threatened, and warned its supervisory employees against becoming or remaining members of the Union or any other labor organization, the averment that it also did so to prevent such employees from assisting or being represented by such an organization. GENERAL MOTORS CORPORATION FINDINGS OF FACT 1. THE BUSINESS OF TIIE RESPONDENT 195 General Motors Corporation is a Delaware corporation. It maintains its prin- cipal offices at New York, New York, and Detroit, Aiichigan. The respondent functions through several unincorporated divisions, one of which is the Buick Motor Division. The Buick Motor Division maintains and operates a plant at Alelrose Park, Illinois, at which it manufactures goods and materials for use of the United States Government and for the United Nations. In excess of 50 percent in value of the goods and materials used by the respondent in its manu- facturing processes at its Melrose Park, Illinois, plant, is shipped to points outside the State of Illinois The respondent admits that it is engaged in interstate commerce within the meaning of the Act s It. THE ORGANIZATION INVOLVED The Foreman's Association of America is a labor organization admitting to membership supervisory employees of the respondent. It is unaffiliated with any labor organization of rank and file employees, and it itself admits to mem- bership no rank and file employees. III. THE UNFAIR LABOR PRACTICES A A. The discriminatory discharges 1. J. Vic Bagdonas and Dale DeBolt On January 9, 1945, the F. A. A. held a meeting for the purpose of effecting a labor organization among the respondent's supervisory employees. Local Chapter No. 160 of the F. A. A. was formed at this meeting. Officers were elected. J. Vic Bagdonas, employed by the respondent as a general foremen,' was elected president of the chapter. The next day, January 10, while Bagdonas was in the office of Tom Rothe, his division superintendent, O'Neill, the respondent's plant superintendent, entered the room and told Bagdonas he wished to speak to him. O'Neill said to Bagdonas, "I understand you are one of the foremen who joined the association." Upon receiving an affirmative reply, O'Neill continued, "I want you to understand we are not going to have any supervisors in any association or union," and he added that supervisors who persisted in their membership would be "put back punching clocks." O'Neill asked what dissatisfaction had caused Bagdonas to join the F A. A. Bagdonas listed various grievances of the foremen. At the close of the conversation, as Bagdonas was leaving, O'Neill said to him, "Remember that we won't stand for having any supervisor in any union or association." 3 This finding is based on a stipulation entered into by the parties at the hearing. 4 The findings herein are based on uncontroverted testimony , which the undersigned gen- erally credits The respondent called no witness. 5 The respondent' s line foremen have charge of production operations in connection with certain machines Line foremen do not hire or discharge. All luring is done through the respondent 's personnel department . Line foremen can and do make recommendations af- fecting employee status including discharge. to the general foremen. The respondent's gen- eral foremen exercise authouty generally over two or more line foremen, and they exercise supervisory control over the operations under the line foremen. General foremen act on grievances of employees, to the extent of their authority They make recommendations affecting employee etatus,, including discharge, to the assistant division superintendents ebo are directly above them The latter have the authority to discharge employees, and thei are in turn dieectl3 under division superintendents 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The F A. A. held its second meeting (the first following the organization of Chapter 160) on January 16. The following day, Rowley, the assistant division superintendent over Bagdonas, and Alfred Jewett, his division superintendent, informed Bagdonas that all three were wanted in O'Neill's office at once. The three men proceeded to O'Neill's office, where O'Neill opened the conversation by asking Bagdonas how long he had been in the respondent's employ. Bagdonas replied that it was since February 2, 1942 (on which date he was engaged as a lathe operator). O'Neill turned to Rowley and Jewett and told them he had called them as witnesses He then said to Bagdonas. "You have been here a long time, but due to your recent conduct in the plant I am going to take you off supervision and you can go back to the job you started here with." Bagdonas asked O'Neill what was meant by the former's "recent conduct," and if his mem- bership in the F. A. A. had prompted O'Neill's action. O'Neill made no reply. Bagdonas then asked if his check was ready. He was told he could wait for it or have it mailed to him. Bagdonas returned to his desk, accompanied by Rowley who assured him that he had always been satisfied with his work, that he had nothing to do with the discharge, and that he was "awful sorry to see it happen." That evening, Bagdonas' check and a Statement of Availability were delivered to his home by a messenger. The Statement of Availability, which had been prepared by the respondent, listed the cause of separation as "Quit." Dale DeBolt, employed by the respondent as a general foreman, was elected a vice president of Chapter 160 on January 9, 1945. The following day, O'Neill held a conversation with DeBolt in Rothe's office, Rothe being present. O'Neill said that he did not know "for sure" if DeBolt was interested in a "foremen's union," but if he was he wanted "to know why." DeBolt told O'Neill that one reason for his interest in the F. A. A. was "probably money." He assured O'Neill that if he (DeBolt) should ever come to the conclusion that the F. A. A. interfered with his duties he would have nothing to do with it. O'Neill then told DeBolt that as supervisor he could not belong to an "outside organization," or be rep- resented by "a third party," and that if he did so he would "cease to be a super- visor and probably the personnel department would take over." O'Neill compared DeBolt's status to that of an Army sergeant, in that he "took orders and passed them along." DeBolt attended the second meeting of the F. A A. on January 16 On January 17, Rothe summoned DeBolt to O'Neill's office. Present there were O'Neill, Rothe, Earl Corners, the division superintendent over DeBolt, and Jordan, an assistant division superintendent. O'Neill began the ensuing conversation by stating that he had called in Rothe, Corners, and Jordan to hear what he had to say. He then told DeBolt, "I am going to dispense with your services, effective today, for your conduct inside the plant." DeBolt said that he felt he was entitled to know to what conduct O'Neill referred. There was no reply at this point. O'Neill continued that he would offer DeBolt the same job he held when he first entered the respondent's employe DeBolt responded that O'Neill knew the offer could not be accepted. He again asked the reason for O'Neill's action. O'Neill an- swered, "You have talked too much." DeBolt then said, "In that case I guess there isn't anything left for me to do but check out." He then left the room. A short time thereafter, as DeBolt was preparing to leave the plant, Corners came up to him and told him that he (Corners) had "nothing whatever" to do with the discharge, that there was nothing wrong with DeBolt's conduct, and he assured DeBolt that he was sincerely "sorry to see you go." 8 DeBo1t was first employed by the respondent on October 20, 1941, as a job setter, not it supervisory position. GENERAL MOTORS CORPORATION 197 That evening, DeBolt's check and Statement of Availability were delivered to his home by messenger. The Statement of Availability, prepared by the respond- ent, gave the reason for DeBolt's termination as "Quit." 2. Concluding findings Both Bagdonas and DeBolt were general foremen ; both joined the F. A. A. and were elected officers of Chapter 160 at its first meeting. The next day, they were interviewed by O'Neill, who inquired into their F. A. A. membership, stated to each that membership of foremen in a labor organization was forbidden by the respondent under pain of economic reprisal. The day following the second F. A. A. meeting, Bagdonas and DeBolt were again summoned by O'Neill for separate but similar interviews. Each was relieved of his supervisory standing because of "conduct" in the plant. The "conduct" was clearly the fact that they had joined the F. A. A. Each asked for an explanation. The only answer given was the statement to DeBolt that he had "talked too much." This had reference to DeBolt's membership in the F. A. A. Both Bagdonas and DeBolt were offered the jobs they held when they first entered the respondent's employ. This was obviously an empty gesture. O'Neill must have known that the offer would not, and reasonably could not, be accepted. Not only would the transfer to production jobs have caused a direct reduction in pay to Bagdonas and DeBolt of between approximately $140 and $180 per month, but they would have lost substantial rights, benefits, and advantages which they held as supervisors as to such matters as separation pay, retirement, absences, tardiness, holiday pay, lay-offs, illness, vacations, and insurance. O'Neill clearly indicated to Bagdonas and DeBolt that continued membership in the F. A. A. would result in their dismissal. He carried out his threat. The respondent urges that the men quit and were not discharged. Its argument evades reality. And if, moreover, it be said that the men had quit, then on the facts disclosed in the record the quitting was equivalent to a discharge as a matter of law-the men were constructively discharged.' The respondent's announced policy that it would not recognize labor organiza- tions composed of its supervisory employees is based on the premise, urged by it, that such employees are not "employees" within the meaning of the Act. There is no merit to this contention. Supervisory employees are "employees" within the meaning of the Act, and supervisory status alone does not remove an employee from the protection of Section 8 (1) and (3) thereof.' The facts, moreover, clearly indicate that certain of the respondent's higher officials had gone beyond its position as stated in its brief. At the outset of the brief, counsel says : "Simply stated, respondent's position is this : Foremen and general foremen are a part of management. As such they must exercise individual ability, initiative, and cooperation. Their efforts must be directed to the performance of their managerial jobs. They cannot serve two masters at the same time, nor can they sit on both sides of the bargaining table. If any member of management finds it necessary for an outsider to represent his interests then he can no longer remain a member of manage- ment. The respondent is not opposed to an employee becoming a member of any organization whether it be political, religious, labor, or otherwise ; but respondent does and will oppose by all proper and legal means the representation of foremen and general foremen by a third party in any General Motors plant. [Emphasis in original.] 4 See Chicago Apparatus Company, 12 N. L. R. B 1002, aff'd 116 F. (2d) 753 (C. C. A. 7) ; cf. Waples-Platter Company, 49 N. L. R B 1156, aff'd as mod. 140 F. (2d) 228 (C. C. A. 5). 8 See Ross Manufacturing Company, et al, 56 N. L. R B. 348; Packard Motor Car Com- pany, 60 N. L. R. B. 21. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent argues that Bagdonas and DeBolt were not told that the respondent. ,%N as opposed to supervisors being members of unions, but merely that the respond- ent opposed their representation by unions. But this distinction fails not only in law,' but in the facts as found herein The fact of the matter is that while Bagdonas and DeBolt may well have been told the latter, they were also told the former, and it was in any event the former upon which emphasis was laid in the conversations between Bagdonas and DeBolt and their superiors. The undersigned finds that the respondent has discouraged membership in a labor organization by discharging J. Vic Bagdonas and Dale DeBolt because of their membership in and activities on behalf of the F. A. A., has thereby dis- criminated in regard to their hire and tenure of employment, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Other acts of interference, restraint, and coercion As related above, the F. A A. held an organizational meeting January 9, 1945, at which various supervisory employees of the respondent were admitted to membership and chapter officers elected." On January 10, O'Neill, the respond- ent's plant manager, interviewed Eric Kaczynski and Norman Rosene, line fore- men, and William Perkins, department paint shop foreman, separately but in the presence of their division superintendents. Although in each instance O'Neill used slightly different phraseology, the pattern of each interview was the same. O'Neill indicated that he was aware of the individual's adheience to the F. A. A.; inquired into his reasons for seeking organization; stated that the respondent could not operate with a third party representing management ; that a foreman was part of management, and that "there can't be anything between the hourly worker and the foreman." O'Neill illustrated his remarks by drawing lines, or blocking out sections on a sheet of paper to represent the functions of management and worker, and stated that the two functions must be kept separate and that there was no place for an organization which represented a part of management. To Perkins, O'Neill also said that Perkins might revert to the status of a leader, at a reduction in pay, that he could not belong to the F A. A. and still be a foreman. Perkins did not attend the second meeting of the F A. A. held on January 10. The next day, Rolland Archer, the respondent's assistant general superintendent, entered into a conversation with Perkins. "I notice," he told Perkins, "you weren't at the meeting last night." "That is right," said Perkins, "but how did you know?" "I was there," replied Archer. Archer asked why Perkins had joined the F. A. A., stated that those joining it were following "incompetent leadership," and pointed out that Perkins was young and had a good future. Archer left with the remark that lie would hate to see Perkins "get started out wrong," and he advised Perkins to "think it over." During this conversation, Perkins referred to the quality of the work of other foremen, and Archer said that DeBolt (discharged that day) was "a damn good operator." On January 10, Jack Burleson, the respondent's chief tool inspector, called to his office Merlyn C. Anderson, foreman of tool inspection. "You understand," he told Anderson, "you can't be a foreman and part of management and belong to an outside organization." P See footnote 7, supra. 16 Among the supervisory employees admitted to membership on January 9, were • J. Vic Bagdonas , Dale DeBolt, August Zikas, Ogden Flanders , Eric Kaczynski , William Perkins, Norman Rosene, Earl A. Jacobi, Merlyn C. Anderson , Steve Thomas, and Arthur Kobocyn- ski. GENERAL MOTORS CORPORATION 199 On January 16, the day Bagdonas and DeBolt were discharged, Steve Thomas, a line foremann under DeBolt, asked Rothe why DeBolt was "let go." Rothe did not answer the question On January 18, however, Rothe addressed a meeting of foremen and general foremen of certain departments. He maintained that Bagdonas and Dollolt had not been discharged but had quit voluntarily, and he added that supervisors could not belong to a union, that they "had to be on one side or the other." Also, on January 18, Earl A. Jacobi, at that time a general foreman, was called into the division office, where he was met by Rothe and Archer. Archer said to Jacobi, "Earl, I hear you are one of the instigators of The Foreman's Union." Jacobi denied being one of the instigators. Archer asked why Jacobi had joined, to which Jacobi replied that he was dissatisfied with the way grievances were handled between the foremen and the production workers Archer told Jacobi that the handling of grievances would be corrected, and that if this were the reason foremen joined the F. A A, the respondent would set up a department to handle grievances and relieve the foremen of this part of their work. During the latter part of January 1045, Jewett entered into a conversation with August Zikas, a vice president of Chapter 160, and then employed as a line foreman. Zikas told Jewett that the impetus of the F. A. A. came from the foremen's grievances. Jewett asked why the men did not "go upstairs" with their complaints, to which Zikas replied that individual foremen felt they would lose their jobs if they went over the heads of their immediate supervisors. Jewett stated that a meeting could be arranged with top management, and, after Jewett named several officials, Zikas suggested a meeting between Ham- mond, assistant plant manager, and himself. Jewett assured Zikas that such a meeting could be arranged. Zikas expressed the desire first to obtain the consent of other supervisors before final arrangements were made. The two men also discussed the feasibility of small gatherings of foremen as a means of promoting good will Later in the day, Zikas spoke to fellow foremen regard- ing his proposed meeting with Hammond, and he informed Jewett that he had their consent. The following morning, Jewett told Zikas that Hammond would see him at once, escorted Zikas to Hammond's office, introduced him, and left him with Hammond. Zikas and Hammond then entered into a discussion lasting about an hour. Hammond told Zikas lie understood Zikas was an officer of "this organization," to which Zikas made affirmative reply and said that he had come to discuss the foremen's problems. The men discussed grievances of foremen, Zikas stating that the F. A. A. had been organized because the foremen were seeking a way to correct these grievances Hammond pointed out that the F. A. A had not been recognized by the respondent (it had, in fact, not asked for recognition), and he deprecated any promises which might have been made by F. A. A. organizers to the foremen, remarking that the promises "may have sounded good at the tune," and that lie did not think "these men could do as much" for the super- visors as "the company could do." The conversation then turned to the small social gatherings discussed the preceding day by Zikas and Jewett. Hammond agreed that the idea was good, and he suggested the formation of small clubs. Zikas asked how the foremen could "save face," to which question Hammond made the suggestion that the foremen should drop out of the F. A. A. "one or two at a time, as time goes along." Hammond added : "I personally can't go down there and talk to you, every one of you men, because there are too many of you We have to rely upon you men to do that." 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The following day, Jewett told Zikas that Hammond was "well satisfied" with the meeting. On or about April 5, Jewett informed Zikas that an opening existed for the position of general foreman. He said that Zikas was being considered for the job, but he admonished Zikas, "You got to understand that if you t'tk' this iob you have to drop your connection with the F. A. A." Zikas asked, "How about Mr. Flanders? What did he have to do?" Jewett replied, "Well, I talked with him and he agreed to go along with ine." 11 To this, Zikas responded, "Well, if he agreed to go along, I will too." Jewett then said : "You know, you understand that I am in a spot here. I can't put you on as a general foreman and expect you to continue in your organization activities." After this latter statement, Zikas asked, "When do I start?" On April 9, Zikas was promoted to general fore- man. He did not, however, resign from the F. A. A. On Saturday, March 24, 1945, Ogden Flanders, a line foreman, was called by Jewett to his office. Jewett told Flanders that he understood Flanders to be secretary of "this outfit" (Flanders was secretary-treasurer of Chapter 160) ; that he (Jewett) desired to promote Flanders to the position of general foreman but could not do so as long as Flanders was "connected" with the F. A. A. "I want to bring you along," he added, "but you have to get out of it. I don't want to promote you now and then be criticized for it later by upper management." Foremen did not need an organization, he continued, and the respondent's policy was "definitely against any outside organization." "You have either got to be on our side," he went on, "or you have to be on their side" Flanders asked "What do you want me to do? Get out?" "Yes," replied Jewett. Flanders asked for time "to think it over." Jewett told him to answer by the following Monday, March 26. On Monday, Jewett asked Flanders for his answer. Flanders again asked if Jewett wanted him to get out of the F. A. A., and was told this was expected. The following morning, Flanders went to Jewett's office and said to him, "Al, I am on your side." Jewett answered, "That is flue. I am glad of it." That afternoon, Jewett informed Flanders he had been promoted to general foreman, effective immediately. Flanders did not, however, resign from the F. A. A. Arthur Kobseynski, employed as a line foreman, testified without contradiction that sometime in mid-March 1945, at a meeting of line foremen and general fore- men, called by the respondent, Rothe announced that a "questionnaire" was being sent by the respondent to all supervisory employees, and he requested that it be filled out and returned. The questionnaire also contained other material, excerpts from which Rothe read to the gathering." On or about March 15, Kobczynski received a copy of the questionnaire by mail, as did the other supervisors; it was dated February 26, 1945. It As found below, Ogden Flanders had been promoted from line foreman to general fore- man a short time before this. 12 These excerpts were as follows : If foremen were held to be employees under the Act with the right to organize for the purpose of collective bargaining and other union activities, and would so organize, the foremen could not continue to exercise their present authority and responsibilities and the General Motors management would have to be reorganized in this respect. The effect of such a reorganization of managerial duties would be far-reaching. It would require the transfer of many if not all of the first-line responsibilities of man- agement from foremen to a higher level of supervision, or to a new, inexperienced group who would have to be trained to take over these responsibilities. This would remove management from close contact with the every-day problems of the workmen. The entire General Motors organization would be affected. Problems and trouble in- cident to such reorganization of duties cannot be readily comprehended or appraised. The status of foremen would thus be reduced since important managerial functions which affect employees would have to be transferred to others. GENERAL MOTORS CORPORATION 201 The questionnaire opens with a recital of the history of foremen's attempts to form labor organizations among themselves ; refers to a strike in Detroit assert- edly called by the F. A. A., says that no General Motors plants were involved ; refers to the Panel appointed by the War Labor Board in May 1944, to investigate and report on the basic issues involved in the foremen's movement for organiza- tion ; and quotes from the Panel report. Then follows a detailed series of questions based on the Panel findings, and a recitation of the respondent's asserted practices and policies on such matters. As an appendix, the question- naire, which is a 25-page pamphlet, contains a copy of a letter addressed to the chairman of the National Labor Relations Board, signed by the president of General Motors, in which is set forth the respondent's asserted policy regarding labor organizations of foremen, and presenting arguments in support of this policy. On or about April 4, Rothe addressed another group of foremen. He displayed a pamphlet, dated April 2, entitled "A Message to Management Employees, from C E Wilson, President, General Motors", which had been sent the same day to all the respondent's foremen. Rothe then read excerpts from the pamphlet. The pamphlet contains a statement of the respondent's claimed policy regarding labor organizations of foremen, copies of communications sent to, and extracts of testi- mony before, govei nment bodies, and a copy of a statement made by a vice presi- dent of the respondent before this Board. The undersigned does not deem it necessary to quote at length from this pamphlet. It is enough to say that the respondent asserts therein that it considers the qualities required of supervisors to consist of individual ability, initiative, and cooperation, and it argues, "There- fore any member of management who requires an outsider to represent his inter- ests does not have these required qualities." After stating that union represen- tation of foremen will definitely limit the opportunities of individuals in that group, the pamphlet continues, "Therefore, we will continue to oppose by all legal means union representation for foremen in any General Motors plant." Concluding findings Upon the attempt of its supervisors to form a labor organization among them- selves, the respondent embarked upon a course clearly designed to thwart their efforts and destroy their organization. The day after its first meeting, various of the respondent's foremen who had joined the F. A. A. the preceding day, some of whom had been elected officers of its Chapter 160, were called for interviews by the respondent's higher management and told that the respondent's policy prohibited their membership in a labor organization, and they were warned that they could not expect to retain their supervisory positions with the respondent if they persisted in their membership in any labor organization. This warning was repeated the day following the second meeting of Chapter 160, and thereafter as well. Two employees, the president and the vice president, respectively, of Chapter 160, were discharged because of their membership and activities in its behalf. The respondent, acting through the head of its plant organization, dis- cussed with an officer of the F. A. A. a scheme for the destruction of the Union, and requested the assistance of the officer toward that end. The respondent offered and gave advancement to employees on their promise to desert the F. A. A.'$ And the respondent climaxed its efforts to destroy the Union by issuing and distributing to its supervisors the questionnaire and the pamphlet entitled "A Message to Management Employees ." The language of these documents, in the opinion of the undersigned, in itself constitutes acts of interference, restraint, ' While the matter last referred to was not alleged in the complaint , the evidence bear- ing upon it was received without objection , and the matter was fully litigated. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and coercion, contrary to the Act ; the documents were, in any event, issued after the respondent had engaged for a substantial period in other acts of inter- ference, restraint, and coercion, and the documents must, therefore, have been read by the employees in the light of its conduct as a whole. In that light, the respondent's statement of policy becomes, and clearly was, a threat of economic reprisal toward employees for engaging in The rights guaranteed by the Act The statement of the respondent that it would "continue to oppose by all proper and legal means union representation for foremen in any General Motors plant," could hardly be reassurance to men who had been threatened, bribed with offers of preferment, and discharged, because they sought to exercise the rights guar- anteed to them by law The undersigned finds that the respondent, by the acts and statements of Ham- mond, O'Neill, Jewett, Rothe, Archer, and Burleson, as found hereinabove, and by the distribution of the questionnaire dated February 26, 1945, and the pamphlet dated April 2, 1945, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of-the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES, UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the 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 it has been found that the respondent has engaged 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 discriminated in regard to the hire and tenure of J. Vic Bagdonas and Dale DeBolt on January 17, 1945 It will therefore be recommended that the respondent reinstate them to their former or substantially equivalent positions without prejudice to their former rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to the amount he would have earned as wages during the period from the date of discrimination to the date of the offer of reinstatement, less his net earnings during said period." Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. The Foreman's Association of America, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminaing in regard to the hire and tenure of employment of J Vic Bagdonas and Dale DeBolt, thereby discouraging membership in The Foreman's Association of America, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 14 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company, 8 N. L. R. B 440 Monies received for work performed upon Federal , State, county , municipal or other woik -relief projects shall be considered as earn- ings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. GENERAL MOTORS CORPORATION 203 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within ttie meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that the respondent, =General Motors Corporation, Buick Motor Division, Melrose Park Plant, its officers, agents, successors, and assigns shall: 1. Cease and desist from (a) Discouraging membership in The Foreman's Association of America, 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 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 The Foreman's Association of America, 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 as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to J. Vic Bagdonas and Dale DeBolt immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges ; (b) Make whole J. Vic Bagdonas and Dale DeBolt, 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 each nor- mally would have carried as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings" during said period ; (c) Post at its plant at Melrose Park, Illinois, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily 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 Thirteenth 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 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 respond- ent to take the action aforesaid. 15 See footnote 14, sut)ta. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective July 12, 1944, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in 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 objec- tions) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order trans- fering the case to the Board. Louis PLOST, Trial Examiner. Dated June 23, 1945. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to 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 em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist The Foreman's Association of America or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will offer to the employees named below immediate and full. reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Joseph Vic Bagdonas. Dale DeBolt. 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, BuIo DIVISION, MELROSE PLANT, Employer. Dated------------------------ By ---------------------- ------------------- (Representative) (Title) NoTE.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any otber material.