American Gear & Mfg. Co.

In the Matter of M AURICE A. WHITE, DOING BUSINESS AS AMERICAN GEAR & MFG. Co. and UNITED STEELWORKERS OF AMERICA, C. I. O. In the Matter Of MAURICE A. WHITE, D/B/A AMERICAN GEAR & MFG. CO. AND AMERICAN STOCK GEAR COMPANY and UNITED STEEL- WORKERS OF AMERICA, C. I. O. Cases Nos . 13-C-2537 and l3-C-26.6, respectively .Decided July 19,19116 Mr. Gustav B. Erickson, for the Board. Messrs. Harold H. Keele and John H. Boord, of Chicago, Ill., for the respondent. Messrs . Arthur J. Goldberg , Harry N. Harper, and George Herman Staley, of Chicago, Ill., and Eugene Cotton, of Washington, D. C., for the Union. Miss Anne E. Freezing , of counsel to the Board. DECISION AND ORDER On December 19, 1945, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, find- ing that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that he cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the respondent had. not engaged in unfair labor practices in discharging John E. LaFaire, Joseph Johnnie, Clifford E. Nelson, Frank Bash, and James Robertson, and recommended that the complaint be dismissed as to them. Thereafter, the respondent and the Union filed exceptions to the Intermediate Report and sup- porting briefs. On May 7, 1946, the Board heard oral argument at Washington, D. C., in which the respondent participated. The Union notified the Board that it had not received notice of the oral argu- ment in sufficient time to appear, and requested a further opportunity to argue orally before the Board. Accordingly, on June 18, 1946, 69 N. L. R. B„ No. 84. 663 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board heard oral argument in which the respondent and the Union participated., 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 Intermediate Report, the exceptions, briefs, and oral arguments, and the entire record in the case, and finds the exceptions to be without merit. The Trial Examiner's conclusions rest principally upon his findings as to the credibility of witnesses. These findings are sup- ported by the record and appear to be reasonable. Although we are not bound by the Trial Examiner's credibility findings, in view of the foregoing, we will not disturb them. Accordingly we hereby adopt 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, Maurice A. White, doing business as American Gear & Mfg. Co., Bedford Park, Illinois, and as American Stock Gear Company, Chicago, Illinois, his agents, suc- cessors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Steelworkers of America, C. I. 0., or in any other labor organization of his employees, by dis- criminatorily discharging or transferring employees, or by discrimi- nating in any other manner in regard to their hire or tenure of em- ployment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, 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 Julius R. Haluska and George Staley immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make Julius R. Haluska whole for any loss of pay that he may have suffered by reason of the discrimination against him, by payment to % Chairman Herzog was not present at the first oral argument but has read the official transcript thereof. AMERICAN GEAR & MFG. CO. 665 him of a sum of money equal to that which he normally would have earned as wages from the date of his discriminatory discharge to the date of the offer of reinstatement, less his net earnings during that period ; (b) Post at his plant in Bedford Park, Illinois, copies of the notice attached to the Intermediate Report, marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Thir- teenth Region, shall, after being duly signed by the respondent, be posted by him immediately upon receipt thereof, and maintained by him 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; (c) 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. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges (1) that the respondent interfered with, restrained, and coerced his employees by physically preventing the distribution outside the re- spondent's plant building of leaflets and handbills urging the employees to become members of United Steelworkers of America, C. 1. 0., and (2) that the respondent discriminated in regard to the hire and tenure of employment of John E. LaFaire, Joseph Johnnie, Clifford E. Nelson, Frank Bash, and James Robertson, thereby discouraging membership in the United Steelworkers of America, C. I. 0., be, and it hereby is, dismissed. INTERMEDIATE REPORT Mr. Gustaf B. Erickson, for the Board. Messrs. Harold M. Keele and John H. Boord, of Chicago, Ill., for the respondent. Messrs. Arthur J. Goldberg, Harry N. Harper, and George Herman Staley, of Chicago, Ill., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed in Case No. 13-0-2537 by United Steel- workers of America, C . I. 0., herein called the Union, and upon a charge also duly filed by the Union in Case No . 13-G-2626, the National Labor Relations Board, herein called the Board , ordered that the cases be consolidated pursuant to Article II, Section 36 (b) of the Board's Rules and Regulations-Series 3, as amended, and thereafter, by its Acting Regional Director for the Thirteenth Region ( Chicago, Illinois ), issued its consolidated complaint dated July 6, 1945, against Maurice A. White, doing business as American Gear & Mfg. Co ., and as American Stock Gear Company, herein called the respondent , alleging that the respondent had engaged in and was engaging in unfair labor practices affecting 2 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 substituting in lieu thereof the words "A Decision and Order." 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 consolidated complaint, the amended charge in Case No. 13-C-2537, the charge in Case No. 13-C-2626, and notice of hearing were duly served upon the respondent and the Union. With respect to the unfair labor practices, the consolidated complaint, as amended at the hearing, alleged in substance that : (1) the respondent terminated the employment of, and has since refused to reinstate, six named employees' and demoted and transferred another employee, George Staley, from the day shift to the night shift, in each case because of the employee's membership in and activities on behalf of the Union ; (2) the respondent, since December 1, 1944, has threatened, warned, and urged his employees not to become members of the Union, and has inquired into the union affiliation and activities of the employees; and (3) the respondent on or about June 11 and June 20, 1945, physically prevented the Union from distributing outside the respondent's plant building, leaflets and handbills urging the employees to become members of the Union. The respondent filed an answer in which he denied the allegations of the con- solidated complaint concerning the unfair labor practices. The respondent also asserted in his answer that the termination of employment mentioned in the consolidated complaint were for proper cause or voluntary, that the transfer of George Staley "was taken solely in the interests of efficient operation of the plant," and that neither the terminations of employment nor George Staley',-, transfer was discriminatory or motivated by the union membership or acts of the employee involved. Pursuant to notice, a hearing was held in Chicago. Illinois, from July 19 to July 28, 1945, inclusive, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent, by counsel, and the Union by counsel and representative, participated in the hearing and were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. Unopposed motions to amend the complaint and to conform the pleadings to the proof were respectively made by counsel for the Board during the hearing and at the conclusion of the hearing. and were granted. At the end of the hearing, the parties waived oral argument. Thereafter, pursuant to leave granted to all parties by the Trial Examiner at the hearing, the respondent filed a brief with the Trial Examiner. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Maurice A. White, doing business as American Gear & Mfg. Co., and also as American Stock Gear Company, is engaged in the manufacture of gears and ordnances at two plants and foundry in Bedford Park and Chicago, Illinois. At one of these plants known as the American Gear & Mfg. Co., or "Tile Clearing" plant, which is located in Bedford Park, the respondent manufactures special gears to specifications ; at the other plant and the foundry which are at the same location in Chicago and are known as the American Stock Gear Com- pany or Lindahl plant and foundry, the respondent manufactures special gears to specifications, standard or stock commercial gears, and also grey iron castings. 3 John E. LaFaire on or about January 10, 1945; Joseph Johnnie and Julius R. Haluska on or about January 19 , 1945; Clifford E. Nelson on or about April 5, 1945; Frank Bash on or about April 6, 1945 ; and James Robertson on or about June 19, 1945. AMERICAN GEAR & MFG. CO. 667 During the last fiscal year, the respondent purchased a substantial quantity of raw materials, consisting of pig iron, sand and coke, in excess of $100,000 in value, of which approximately 50 percent was purchased outside the State of Illinois and shipped to the respondent's plants in Illinois. During the same period, the respondent produced a substantial quantity of finished products in excess of $100,000 in value, of which approximately 50 percent was shipped to points out- side the State of Illinois. At the hearing the respondent conceded that he is engaged in commerce within the meaning of the Act. The present proceeding involves only employees at the respondent's Clearing plant. II. THE ORGANIZATION INVOLVED United Steelworkers of America, C. I. 0., is a labor organization admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. In general In late November or in early December 1944, employees Joseph Johnnie, John E. La Faire,2 George Staley, Julius Haluska, and Mary Anhalt met several times at Johnnie's and La Faire's homes to discuss the organization of the respondent's employees. At their invitation, Oakley Mills, the Union's representative, at- tended the second of these meetings in the early part of December 1944 and furnished forms of union membership applications. Thereafter, the employee- leaders of the Union's campaign began soliciting union membership from their fellow employees not only outside the plant but also in the shop and the washroom of the Clearing plant during working hours, They also held union meetings for the employees whom they invited orally and by mail. The printed form of application for employment regularly used by the respond- ent requires an answer to the question : "Do you belong to any social, fraternal, or trade organizations?" Henry L. Schroeder, the respondent's employment manager, who reviews these employment applications and interviews and hires applicants, testified that this question contemplates, and Schroeder expects, a disclosure by each applicant of his union membership as well as his membership in other organizations ; that, upon an applicant's failure to answer this question or any other question on the application form, Schroeder has asked the applicant for. an answer without inquiring specifically about his union membership; but that Schroeder has hired at least 100 persons who revealed their union member- ship to him either orally or in their applications and, has never refused employ- ment because of that fact. Employee Martin Bertules testified that at the time he started to work for the respondent in February 1945, he submitted his applica- tion for employment to Schroeder without answering the question as to whether he belonged to any fraternities, societies or unions; that Schroeder thereupon asked him this question and whether he belonged to a union ; that Bertules answered that he no longer belonged to a union although lie had at one time; that Bertules asked, "Do you have a Union here?" ; and that Schroeder replied, "No, that is something you won't have to contend with. You won't have any union dues checked off of your pay." In his testimony, Schroeder denied having made any statement to any employee to the effect that he would not have a union man in the plant. The undersigned credits the testimony of Bertules and finds that Schroeder ques- 2 John E. La Faire was generally known among the men, and was frequently referred to in the testimony as "Eddie " La Faire. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tioned Bertules as to his union membership and that his remarks were intended to discourage Bertules as a prospective employee from joining a union. Upon the testimony of Schroeder, the undersigned also finds that the respondent, by the general use of its job-application form, has invited disclosure by prospective employees of whether or not they were members of a union. Members of the respondent's plant supervisory staff also displayed to the employees their curiosity as to the identity of the union members among them and, in one instance, Foreman Vacha of the turret lathe department expressed distinct displeasure because an employee wore a union button in his depart- ment, and an intention to discharge him therefor. Employee Jim Vilimek, testi- fied that Foreman Vacha asked him in January 1945, whether he had heard that the Union was coming into the plant and that Vilimek replied in the negative. According to the testimony of employee Mable, Childress, Foreman Vacha told her that, by subsequently wearing a union button in the plant, Vilimek had stabbed Vacha in the back and that, if the Union got in the plant, Vacha would fire Vilimek. Employee Childress also testified that, thereafter on February 4 or 5, 1945, Vacha asked her whether she had gone to a union dance the pre;; ceding night and that, when she denied it, he insisted that she had. Vacha was not called as a witness and the undersigned credits the testimony of Vilimek and Childress as to Vacha's statements to them. Sometime in January 1945, Foreman Louis Cordova of the milling department also asked Employee Louise Robinson whether she had attended a union meeting the preceding night and, upon her affirmative answer, whether she had signed a union card. According to Cordova's testimony, which the undersigned credits, Robinson started this conversation by calling his attention to the fact that a number of the women employees were wearing their company buttons upside down and informing him that this signified union membership. Again, in February, according to the testimony of both employee Ed Kasper' and Foreman Cordova, the latter said to Kasper, "It looks like the Union wants to get in here," and then added, upon being asked by Kasper what he thought about it, "Well, everybody seems to be satisfied around here, I don't think they got a chance." Kasper and Cordova also testified that later in the same day, Cordova asked Kasper whether he had seen anybody soliciting members for the Union and that Kasper said "no." In his testimony, Cordova explained that the purpose of this question was to enable him to enforce in his department a com- pany rule against solicitation of any sort in the shop, which rule was posted.on each of the respondent's bulletin boards above the two time clocks. It appears, however, from both Kasper's and Cordova's testimony, and the undersigned finds, that Cordova's remarks and his question were on their face directed not merely to union activity in the plant, which might properly be forbidden when it inter- fered with production, but generally to the identity of the employees who were engaged in solicitation, whether inside or outside of the plant.' I Cordova at first testified that Kasper , a set-up man in the mill and drill department, was a supervisory employee "to a certain extent" in that he was in charge of the depart- ment in Cordova 's absence. Later in his testimony , he explained that on such occasions Kasper merely assigned work to employees if they completed their jobs, that he had no right to hire or make recommendations in these respects , that he had no supervisory authority, and was not regarded by the employees either as a foreman or an assistant foreman. The undersigned finds that Kasper was not a supervisory employee. ° A. notice setting forth the following rule has been posted for the last 3 years upon the bulletin boards over each of the respondent 's time clocks and time card racks : Solicitation on the premises of the Company is strictly prohibited and any such viola- tion will be rigidly enforced by immediate discharge. On the bottom of this notice , there is added a quotation from the opinion of the Circuit Court of Appeals for the Seventh Circuit in Midland Steel Products Company V. N. L. AMERICAN GEAR & . MFG. CO. 669 Employee Michael Chomiak testified that, at about the same time, Ike Etchason, chief inspector on the night shift , asked Chomiak why Chomiak was wearing a union steward's button ; that Chomiak replied , "Well, the boys in the union want me to"; and that Etchason then said, "Well, I would not wear the thing. I was in the union once before and I got out of it and was glad of it." Chomiak testified that he then told Etchason, "Well, they won't hurt nothing. I don't care if no- body else is in the union, I believe in it, and I will wear it." In his testimony, Etchason denied telling any employee to take off his union button but did not deny this specific conversation with Chomiak. The undersigned credits the testimony of Chomiak. Employees Daniel Sayovbich and George Staley testified that on one occasion in the washroom during working hours on the night shift in May 1945, Joe Hanzelin, night foreman of the lathe department,` stopped Staley's solicitation of Sayovbich for union membership and took a membership application from Sayovbich. Hanzelin testified that he saw Staley and Sayovbich talking in the washroom but did not know what they were talking about ; that he told them "to break it up"; and that he did not take any card from them nor see any card. According to Hanzelin, it was his regular practice not only to stop conversations and idling in the washroom but also to stop solicitation of any sort in the plant in accordance with a company rule to that effect. The undersigned credits the testimony of Sayovbich and Staley and finds that Foreman Hanzelin stopped Staley 's solicita- tion of Sayovbich for union membership during working hours, and took a union application card from Sayovbich. Inspector Clifford Nelson testified that James Lobes, who he said was a fore- man in the final inspection department, told Nelson in March 1945, "You'd better get out of [the Union] before it's too late. You know I should not even be saying this to you. I am liable to get myself in trouble. I am saying this just as a friend." The undersigned credits robes' denial that he made these statements a Employee Mary Anhalt testified that after she began wearing a union steward's button at work in January 1945, her foreman, Herbert Rhoads became less friendly and told her in a 45-minute conversation started by him in the presence of the seven other women employees working at her bench that it was bad business to get into the C. I. 0., that he had been in the C. I. 0., himself at one time, that he was glad he was out of it, and that Anhalt would be better off if she had nothing to do with it. Rhoads, on the other hand, testified in substance, R. B., 113 F. (2d) 800, 805-806, in which the Court affirms "the right of the employer to make reasonable rules for the safety and efficiency of the work . . . [ including] the right to make such rules for the entire time that the working force is on the employer's premises." Subsequent decisions of the Courts and of the Board have indicated, however, that this right does not in the normal case extend to the prohibition of union solicitation on the employer 's premises during the employee 's own time ( see, e. g., Republic Aviation Co. v. N. L. R. B., 324 U. S. 793, aff'g 142 F. (2d) 193 (C. C. A. 2), enf'g 51 N. L. R. B. 1186 Matter of Peyton Packing Company, 49 N. L. R. B. 828, 50 N. L. R. B. 355). There is no evidence that this apparently objectionable aspect of the instant rule was ever enforced by the respondent. Furthermore, since the complaint, which is otherwise specific, does not allege the respondent 's publication of the no-solicitation rule to be , violative of the Act, and that question was not in fact litigated at the hearing, the undersigned makes no finding to that effect. The respondent is not to assume, however, from the absence of such it finding, that his continued posting or the enforcement of the present rule would not be violative of the Act. ' Hanzelin testified that he was a "superintendent" and ranked higher than a foreman : but lie also testified that he held the position on the night shift corresponding to that of John Challa on the day shift . It was undisputed that Challa was day foreman of the lathe department. 6 Since the undersigned credits Kobes' denial of the statements attributed to him by Nelson, he finds it unnecessary to pass upon the respondent 's contention that Kobes was not in fact a supervisor. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that in answer to specific questions from Anhalt concerning his apparent coolness and the possibility of her getting a raise in spite of her wearing a union button, he reassured her on both points; that he also told her that he once had been a union member and that other persons' opinions should make no more difference to her than they had to him; and that he informed her that, while his own ex- perience as a union member had been disappointing, she should not construe his remarks as being against the Union. The undersigned credits Rhoads' testimony and finds that his remarks to Anhalt did not constitute interference, restraint, or coercion within the meaning of the Act? In conclusion, the undersigned finds that the respondent interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed by Section 7 of the Act and thus violated Section 8 (1) thereof, through (1) his general use of the employment application form, inviting the disclosure by pro- spective employees of whether they were members of a union; (2) through Em- ployment Manager Schroeder's questioning of Bertules concerning his union membership; (3) through Foreman Vacha's questioning of employees Childress and Vilimek concerning their union activities and his statement to Childress that he would fire Vilimek because of his apparent union activities if the Union were successful at the plant; (4) through Foreman Cordova's questioning of employee Louise Robinson concerning her union membership and her attendance of a union meeting; (5) through Foreman Cordova's questioning of employee Kasper as to the identity of the employees who were soliciting for the Union ; (6) through Chief Inspector Etchason's asking employee Chomiak why lie wore a union steward's button, coupled with the suggestion that he take it off : and (7) through Foreman Hanzelin's confiscation of the union application held by Sayovbich in the washroom. 2. The respondent's alleged physical prevention of the distribution of Union leaflets outside his plant building As amended at the hearing, the complaint alleged that the respondent on or about June 11, and June 20, 1945, physically prevented the Union from distribut- ing outside the plant building, leaflets and handbills urging the employees to become members of the Union. The testimony taken on this phase of the case is not in conflict. The respondent's Clearing plant building is located in the Village of Bedford Park, Stickney Township, Illinois. Both the plant building and an adjacent, rectangular parking lot, also owned and used by the respondent, are surrounded by a wire fence. The parking lot is located to the east of the building in a corner formed by the intersection of two public streets, one of which borders the parking lot on the east and the other, the parking lot and the building on the north. There are two gates in the respondent's fence ; one a foot gate in the northwest corner of the parking lot at the northeast corner of the building, and the other, an automobile gate at the southeast corner of the lot. The footgate and the building's entrance, which faces the parking lot in about the center of the east side of the building, are connected by a sidewalk which lies between the building and the lot. On June 10, 1945, shortly before 5 o'clock in the afternoon when his shift was to report for work, employee George Staley began to distribute union leaflets 7There was testimony concerning other alleged statements and acts of the respondent's officials and supervisors, such as ostentatious surveillance of several employees who had been wearing union buttons, which counsel for the Botird contended were unfair labor practices violative of Section 8 (1) of the Act. In the light of credible denials or ex- planations by the officials and supervisors in question, the undersigned rejects these contentions. AMERICAN GEAR & MFG. CO. 671 among the employees standing on this sidewalk between shifts . One of the respondent's guards stopped Staley and took him to Employment Manager Schroeder . Schroeder took the pamphlets from Staley , agreed at Staley's request to consult John H. Boord, the respondent 's chief administrative official and general counsel, who had his office in the plant but was not then available, and promised to send the pamphlets to Staley in the plant , although he did not do so. Later in the evening, Night Superintendent Klipper told Staley that Boord could not be reached . On the following night, June 11, Klipper came to Staley and told him that he could have his pamphlets at the end of the shift . Klipper did in fact return them, but requested that Staley refrain from passing them out. The next day, June 13, Staley went to Boord 's office . Boord told Staley that he had a right to pass out the pamphlets , that Klipper should not have taken them nor kept them so long, and that it would be all right to have the pamphlets distributed by a man at each of the gates at any time . Upon Staley ' s question, he also said that he would not call in the police. On June 20, Staley and three other men again began to pass out union hand- bills. Staley distributed them at the footgate ; Luthnuin, another employee, passed them out among the cars ix the parking lot; and Staley sent a third employee, Feodorovich , down to the automobile gate . The fourth man, whose name Staley did not know and who was not one of the respondent 's employees, began passing them out on the street , outside the footgate . This man was stopped by policemen employed by the Village of Bedford Park , who were patrolling in an automobile and who said they had orders from their police captain to stop the distribution of handbills on the sidewalk and street because people had been struck by cars while reading as they walked . Staley, who had come out to get more handbills , then took the man inside the gate. The re- spondent's guard thereupon ordered the man off company property. According to one of the Village policemen , he went into the plant after this incident and told Boord that there was a man from another company passing out literature ; and that Boord said it was perfectly all right. The policeman testified that he went to see Boord because the Sixth Service Command of the United States Army had prohibited the loitering of strangers about war plants. This was the last time Staley or any of the other union employees ever at- tempted to pass out union handbills . Staley explained, in his testimony, that lie and Oakley Mills, the union 's representative, "decided as a result of the action of the police that we were not permitted to organize in the way that we wanted to organize , and that it would not be possible for us to contact a sufficient amount of people to be worth while to pass out handbills." Upon the above facts, it is clear that, although the respondent did prevent the distribution of union handbills on June 10, it quickly acknowledged its mistake and agreed to a mode of distribution which was also agreeable to the Union. Thereafter, the union employees did, in fact , pass out their handbills on com- pany property without interference from the respondent. Only the man who was not employed by the respondent was forced to discontinue. There is no evi- dence that the action of the police in stopping this man from distributing the handbills was prompted by the respondent . -Moreover , the respondent 's preven- tion of the stranger from handing out the handbills on the respondent 's property in no way precluded the employees from continuing their own distribution. Un- der these circumstances , the undersigned finds that the respondent did not phys- ically prevent the distribution of union leaflets and handbills nor deprive his employees of a reasonable means of access to the Union 's literature, and there- fore did not , in this respect, interfere with, restrain , or coerce his employees in the exercise of the rights guaranteed by the Act. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Discrimination 1. The alleged discriminatory discharge of John E. La Faire John E. La Faire was employed by the respondent from March 15, 1944, until January 10, 1945, as a gear cutter on the day shift under Foreman Thomas T. (Ted) Robinson. At the time he was hired, La Faire told Employment Manager Schroeder that he had worked on the night shift at the Dodge-Chrysler plant in Chicago and had been chief union steward there ; that he could not sleep in the daytime, had lost weight, and had become ill as a result of the night work; that he had three children and expected a fourth child ; and that he therefore had to work days.' As already noted, La Faire was one of the five organizers of the Union at the respondent's plant. He testified that he solicited memberships openly at the plant during working hours from the early part of December, 1944, until his discharge, leaving his machine and walking throughout the plant for the purpose; that, although he was told by Foreman Robinson early in December not to leave his machine, he continued to do so ; and that, by January 10, 1945, he had solicited about 55 members, a majority of them in the plant. During this time, however, it appears from La Faire's testimony that neither he nor any of the other employees wore union buttons and also that none of the respondent's representatives spoke to La Faire about his past or current union activities, even though the former had been made known to Schroeder. When asked on cross- examination whether anyone at the respondent's plant had spoken to him about his union stewardship at the Dodge-Chrysler plant, La Faire said, with reference to Schroeder, "Not him, no." Despite the apparently intended implication of this statement, La Faire made no response to a repetition of the general question and then, in response to specific questions, admitted that neither the Respondent White, Robert Long (who had general charge of production),' Production Man- ager Smith, Superintendent Collins, Foreman Robinson, nor Foreman Challa had spoken to him about his union stewardship at Dodge-Chrysler. In answer- ing the question as to Challa, La Faire said, "I don't know the man." Yet he later testified that Challa, as well as Schroeder, knew he was organizing the respondent's employees, because Challa had seen him soliciting. Upon being charged by counsel for the respondent with inconsistency as to his acquaintance- ship with Challa, La Faire merely said, "I know his name." La Faire testified that, as chief steward at Dodge-Chrysler with 45 stewards under him, he had taken all grievances to Assistant General Foreman A. J. Waughop. Waughop left Dodge-Chrysler on December 31, 1944, and began work- ing for the respondent as an assistant foreman in La Faire's department under Robinson shortly before January 10, 1945. La Faire testified that Waughop began working in his department a week or ten days before January 10th, that 8 This finding as to the substance of La Faire's statements to Schroeder is based upon La Faire's testimony. Schroeder said in his testimony that he did not remember whether La Faire had told him at that time of his union stewardship at Dodge-Chrysler. He gave no testimony as to whether La Faire had told him of the necessity for day work. La Faire testified that Schroeder did not "directly" question him as to whether he was a union man but that on examining La Faire's application for employment, Schroeder said, "Oh, Dodge-Chicago," and that La Faire thereupon told him that he had been chief steward and was "instrumental over there in the union," ' Although in his testimony La Faire characterized this as questioning by Schroeder, the undersigned finds, as stated in the text, that La Faire volunteered the information concerning his past union activities. 'Hereinafter sometimes referred to as Production Director Long, for the sake of con- venience. Long testified that his position corresponded to a vice-presidency in charge of production in the usual corporate form of organization. AMERICAN GEAR & MFG. CO. 673 Waughop avoided and ignored La Faire for the first few days although La Faire had said, "Hello, Al," when they met ; but that several days later or 2 or 3 days before La Faire's discharge , Waughop came up to La Faire and said , "Well, I see you're in harness here." When it was suggested to La Faire on cross-examina- tion that Waughop began working at the respondent's plant only on January 9th, La Faire stated merely, "I know that he [Waughop] was there several days before I was discharged, though." [Italics supplied.] According to La Faire, he saw Waughop twice in the plant on the morning of January 10th: the first time, at about 5 minutes to 7, when, as Waughop walked past, La Faire urged his brother , Harold La Faire, a fellow employee , to join the Union and handed Harold a membership application card ;10 and the second time, at about 9 o'clock, when Waughop stood in conversation with Long, Smith, and Robinson about 10 feet from La Faire's machine. La Faire testified that on this second occasion, Long and Robinson continued their conversation for 15 minutes after Smith and Waughop walked away ; that upon Long's leaving Robinson at about 10 o'clock, Robinson , walked over to La Faire and said, "You have to go on nights ;" that La Faire protested that he had been hired for day work and that Robinson knew his circumstances ; that Robinson said, "I have no alternative ; them are my direct orders from Mr. Long ; otherwise I will have to discharge you ;" that Robinson then denied La Faire's suggestion that the latter's union activities were responsible and gave La Faire until 11 o'clock to make up his mind ; that La Faire answered , "You know my mind is made up. I cannot work nights." On cross-examination, however, La Faire stated that Robinson gave him until noon to make up his mind ; he also recalled that Robin- son asked him whether he would try night work for a short time and that he refused because, as he told Robinson, he had lost weight when he had previously worked nights. La Faire testified that 25 minutes later, or at 20 minutes after 11, Robinson returned and asked , "Is your mind made up?" that La Faire said it was; that Robinson said that he would have to discharge La Faire pursuant to Long's orders and that La Faire should go to the office for his time; that Robinson followed him towards that office ; that, when La Faire stopped to talk with another employee, Robinson pushed La Faire, saying, "Come on, you can't hang around here;"" that, at 11: 40 a. in,., Robinson accompanied La Faire into Schroeder's office; and then, leaving La Faire for the first time since 11: 20 a. in., he instructed La Faire to await Schroeder's return from lunch in order to get his pay. La Faire testified that he waited in Schroeder's office until the latter returned from lunch at 10 minutes to one; that upon La Faire's asking for his time, Schroeder pulled La Faire's check out of his desk, saying, "That is all;" that La Faire asked, "Well, Mr. Schroeder, is that because of union activities?" to which Schroeder replied, "Well, no, that has nothing on your past or at Chrysler . . . I don't know what is the matter with that foreman out there" ; and finally upon La Faire's insistence to learn the reason for his discharge, Schroeder said, "Well, you refused to work nights." Later in his testimony, La Faire stated that Schroeder volunteered the information that La Faire's discharge was not due to his union activities. On cross-examination, however, lie again said that he first asked Schroeder, "Could it [my discharge] be on 10 La Faire's testimony as to this incident was corroborated by Employee James Robertson. 11 La Faire's testimony concerning this incident was corroborated by Employee James Robertson. 701592-47-vol. 69 44 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD account of my union activities?" and that Schroeder answered in the negative. Then, in ostensible clarification, La Faire further testified that he first asked Schroeder the reason for his discharge and that Schroeder said, "Well, I don't think it is on account of your union activities over at Dodge or here," adding "You have a good record here." For the most part, the testimony of the respondent's witnesses was diametrically opposed to the testimony of La Faire and to the inferences which might normally be drawn from the latter. Robinson, Smith, and Long denied that they had talked about La Faire with Waughop. Waughop testified that he went to the respondent's employment office to apply fora job on January 2 or 3 , 1945, but did not go into the plant ; that on January 4 or 5, he went through the plant with Long; and that he began working for the respondent on January 9. Waughop further testified that lie never knew, nor had he dealt with, La Faire at Dodge- Chrysler where Waughop had been assistant general foreman and had always been employed on the day shift ; that on either the first or the second day of Waughop's employment by the respondent, La Faire asked him if he had worked at Dodge-Chrysler and then said that he (La Faire) had worked there on the night shift under Foreman Larry Swigart ; that La Faire said nothing more and this was all that Waughop knew about him ; that Waughop had not talked to anyone connected with the respondent, nor had they talked with him about La Faire. Robinson testified that, at the time of the termination of La Faire's employ- ment, lie knew nothing of La Faire's union membership or union activities, or of the Union's organizational movement in the plant. Moreover, according to the testimony of Robinson and Long, Robinson, himself, made the decision to transfer La Faire to the night shift without consulting or advising Long. Robinson testified that the night shift with six operators was short of help, that he had unsuccessfully tried for several months to hire an additional night operator; that he then decided to transfer one of the 8 day operators to night work although he had received no orders to that effect ; that he selected La Faire to make the transfer because the other operators on the day shift were capable of doubling up and operating La Faire's machine if he was transferred whereas his experience with La Faire had shown La Faire to be incapable of independently operating any of the machines satisfactorily except those upon which he was then work- ing .2 Robinson further testified that La Faire had on occasions appeared nervous and troubled ; that La Faire had explained to Robinson that his wife was expect- ing a child and was sick; and that Robinson had at one time permitted La Faire to go home. Robinson said, however, that he had not understood that La Faire himself was sickly ; that before deciding to transfer La Faire to the night shift for the reason already mentioned, he had taken La Faire's home conditions into consideration ; and, in effect, that he had discarded this personal hardship factor in La Faire's case as he did the general run of excuses given by employees for not transferring to night work. In this connection, Robinson also testified that in the last three years lie transferred from 12 to 15 persons to night work and none of them refused the transfer. He was able to name only 7 of these persons, all of whom, however, with but one exception, either were supervisors, were made supervisors, or stayed only a short time on night work. 1z Robinson testified in this connection that two of La Faire's fellow operators on the day shift were classified as "A" operators , the highest bracket , and the remaining six .operators, including La Faire, were classified as "B" operators . Robinson stated , however, that the other five "B" operators were better than average and superior to La Faire who was a "fair" operator. AMERICAN GEAR & MFG. CO. 675 According to Robinson , he informed La Faire at about 11 o'clock in the morning of January 10, that La Faire would have to transfer to night work , explaining that the night shift needed a man of La Faire' s experience in order to get more work out. Robinson testified that when La Faire said it was almost impossible for him to take a night job due to conditions at home, Robinson asked him to try it for awhile, but that La Faire refused, stating that rather than go on night work, he preferred to go somewhere else and work days. According to Robinson, he told La Faire not to make a decision without thinking it over and thatRob B- son would return for his decision at noon; but that La Faire replied, "There isn't much use to think it over. I have got my mind made up." Robinson testified that at about noon he asked La Faire if he had decided what to do ; that La Faire said, "Yes, rather than go on nights, I will quit. You can make out my check;" that Robinson asked La Faire, "Are you sure that you want to do this?' and that La Faire said, "Yes. I am leaving," and asked Robin- son to get his check . According to Robinson, he thereupon went to see Long, explained what had happened, heard Long direct Smith to prepare La Faire's cheek and, in a brief meeting with La Faire in the plant before going to lunch, told La Faire to wait in the employment office for his check. Robinson specifi- cally denied having pushed La Faire or having accompanied him to the personnel office. Schroeder testified that, when lie came back from lunch, he found La Faire waiting for him in Schroeder's outer office; that, preceding La Faire into his office, he was told by the captain of the guards that there was a check and disposition slip in the drawer of his desk; that lie called La Faire in and La Faire said lie had been fired ; that, pulling out the check and slip from his drawer, Schroeder told La Faire that, according to the disposition slip, La Faire had quit after refusing to work nights ; that La Faire said he could not take a night job because of his family; and that La Faire left after turning in his badge and receiving his check. Schroeder further testified that La Faire returned a few days later to secure a release; that La Faire then told Schroeder that, because of his union stewardship and employment in Waughop's department at Dodge- hrysler, he believed that 'Waughop had "caused trouble" for him ; and that Schroeder said lie knew nothing about it except that Robinson had told him La Faire had quit rather than give night work a trial. The summary of La Faire's testimony set forth earlier in this Report discloses that La Faire's testimony was not only inconsistent on several important points bat was also characterized by an evident disposition on his part to cover factual uncertainties and to advance damaging factual conclusions by making positive statements or implications which apparently had no basis in fact and which in several instances he reluctantly withdrew or qualified when he was pressed. Ihe undersigned therefore finds La Faire's testimony to be unreliable and credits the testimony of Robinson. Long, and ^V'aughop concerning the facts relevant to La Faire's termination of employment. Accordingly, the undersigned finds upon the testimony of the latter witnesses that Waughop did not know La Faire prior to January 9 or 10, 1945; that on and before January 10, he knew nothing of La Faire's union activities either at Dodge-Chrysler or at the respondent's plant; that he did not speak to Long, Smith, or Robinson about La faire ; and that he gave no information to Robinson or to any of the respondent's officials or supervisors which affected La Faire's severance. Similarly, the undersigned finds no valid reason for disbelieving, and he therefore credits, (1) Robinson's testimony that it was his independent decision and act to transfer La Faire, and (2) Robinson' s denial of any knowledge from 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any source at that time concerning La Faire's union membership or activities or even of the Union's organizational campaign in the plant. In the opinion of the undersigned, serious doubt is cast upon La Faire's general testimony concerning his open solicitation of union memberships throughout the plant for the month preceding January 10, the date of his discharge, by his own testimony that on the latter date he solicited his brother, the very first person whom he might reasonably have been expected to approach. Furthermore, although La Faire would have it appear from his testimony that the Union's campaign and his participation therein were blatantly open from the beginning, he also testified that neither he nor any of the other employees began wearing their union buttons until after he left the respondent's employ. Finally, the occurence of the various incidents, which have already been discussed in Section IA as proved or alleged instances of the respondent's interference with employee self- organization, certainly affords no basis for finding that by January 10, 1945, the Union's organization of the employees had proceeded so openly and to such an extent that it and the identity of the employee-leaders had come to the knowl- edge of the respondent's officials and supervisors. For, according to the testi- mony, these incidents took place either in February or later, or on various un- specified days in January, which were not fixed with reference to La Faire's severance but in several instances obviously occurred after the employees first began wearing their union buttons. The undersigned is, therefore, not satisfied from the testimony that Robinson or any of the respondent's officials or super- visors knew by January 10 that La Faire was actively engaged in soliciting union memberships. Thus, while it is arguable whether Robinson's insistence that La Faire transfer to night work was harsh and abrupt under La Faire's known circumstances, the record discloses no credible reason for Robinson's action other than the reason given by him in his testimony, i. e., that efficient production required the transfer of an operator from day to night work and La Faire was the logical man to be transferred. The undersigned, therefore, finds that the attempted transfer of La Faire from day to night work was not an act of discrimination against La Faire because of his union membership or activities, and that, as Robinson testified, La Faire voluntarily quit his employment and was not discrimina- torily discharged in violation of Section 8 (3) of the Act. 2. The discriminatory discharge of Julius R. Haluska Julius it. Haluska was employed by the respondent as an engine lathe operator from December 7, 1941 to January 19, 1945. He became one of the five organizers of the Union at the respondent's plant and, according to his testimony, began soliciting members in the plant in January 1945. At the time of the termination of his employment, Haluska ran an engine lathe in the lathe and turning department at the Clearing plant under Assistant Foreman Emil ("Swiss") Traechsler and Foreman John Challa. George Staley, Joseph Johnnie, and Haluska, all three of whom were union organizers, operated engine lathes adjacent to each other and to a lathe operated by Assistant Fore- man Traechsler. From the position of the operators, Traechsler's lathe was in the front right, with Haluska's lathe to his left; Staley's lathe was behind Traechsler's and, in a row to the left of Staley's lathe, were located Johnnie's lathe (behind that of Haluska) and then lathes operated by Frank Loporto and Pete Bladek. Traechsler estimated the distances between the operators to be between 5 and 10 feet.. Between January 10 and January 19, 1945, according to the testimony of Staley and Johnnie, they talked with each other and with Haluska, freely and in normal AMERICAN GEAR & MFG. CO. 677 tones while operating their lathes, about the progress of the Union in the plant and the advisability of petitioning the Board for an election. Johnnie further testified that these conversations occurred while Traechsler was operating his machine and before, as well as after, January 10, the date La Faire had left the plant. On cross-examination , Johnnie first testified that they did not speak to Traechsler about the Union because it was common knowledge that anyone talking about union activities would get fired; he then stated that they talked among themselves so that Traechsler could probably have heard everything they said if he were listening, and that the reason they did not speak to him was that, as a supervisor, he was not wanted in the Union. Staley, Johnnie, and Haluska all testified that they were able to hear each other plainly in spite of the noise of the machines ; yet, with the fan turned on in the hearing room , making less noise than their machines ( according to Johnnie ), Johnnie experienced a "little" diffi- culty in hearing the questions of counsel for the respondent . Haluska testified that the hearing in his right ear, which was turned to counsel for the respondent, was poor but that he had turned his head to hear his fellow workers and that the noise of their particular machines was not too bad because they were near open windows. Staley also explained that the "normal " tone which they em- ployed in their conversations, was "normal" with relation to the noise of the machines, to which they were accustomed. In any event, Traechsler testified that the other men could hear him and he could hear them speaking at their machines but gave no testimony as to whether or not he had heard Staley, Johnnie and Haluska talking about union matters , although he denied knowing that Johnnie was a union man . Upon this testimony and Traechsler's failure to testify directly to the contrary, the undersigned finds that, at least between January 10 and 19, Staley, Johnnie, and Haluska talked at their machines about their union plans and that Assistant Foreman Traechsler not only could hear them, but did hear them. On approximately January 15, the engine lathes operated by Haluska, Traechsler and Loporto were transferred to the Lindahl plant. For the next 4 days, Haluska remained at the Clearing plant and operated another lathe, According to Long, he instructed Challa on January 19 to transfer Haluska to the Lindahl plant to operate his old machine there ; that this was not unusual as was evidenced by the fact that at various times 46 machines and 43 men had been transferred from the Clearing plant to the Lindahl plant, 20 of these men accompanying the machines which they had been operating ; and that the reason for Haluska's transfer , as well as for the previous transfer of these other men, was his familiarity with the machine and his ability to do the work it performed . Challa testified that Long's instructions included the trans- fer of Loporto with his machine , as well as Haluska, but that, without notifying Long, he decided not to transfer Loporto because Loporto had once told him that he had worked at the Lindahi plant and had been fired as the result of trouble with Bernhagen , the superintendent . On the other hand, Loporto, when previously testifying as a Board witness, had stated that he had not informed Challa of his employment at the Lindahl plant . Recalled as a witness for the respondent, Loporto said he had erred in his statement , and that he had for- gotten having met Bernhagen in the presence of Challa and having then told Challa of his previous trouble with Bernhagen . In any event, Loporto, a non- union man, was not even asked by Challa to transfer with his machine to the Lindahl plant in January 1945 nor was any operator other than Haluska. At the end of the work day on January 19, 1945, Challa told Haluska that he was transferred to the Lindahl plant on Long's orders. According to Challa, Haluska said he would not transfer but would talk to Long, to which Challa 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replied that whatever Long decided was all right. Haluska testified that he then went to Long who confirmed the transfer ; that Haluska told Long of the transportation difficulties involved in his getting to the Lindahl plant;" that Long said that was Haluska's business ; that, in answer to Haluska 's question,. Long said he would not get a raise ; and that Haluska said, "By golly, there is no bargain there at all," that he would have to decide what to do, and would come in on Monday morning, the next working day." According to Haluska, it wag noisy and Long was busy and did not answer him. Long gave no testimony as to whether or not he had such a conversation with Haluska and, if so, whether Haluska's version was accurate. The undersigned finds, therefore, that on the afternoon of January 19, Haluska told Long that he would have to consider ac- ceptance of the transfer and would come in on Monday morning, and that Long did not demur. Haluska testified that he came into the plant on Monday morning, wearing his union steward's button for the first time, and asked Employment Manager Schroeder to see Long about his transfer ; that, after going into the shop three times, Schroeder returned with Haluska's pay check and release ; that Haluska told Schroeder that he had not asked for a release but wanted to tell Long he accepted the transfer; and that Schroeder said that Long did not want to speak to Haluska. Schroeder, when called as a witness did not testify as to whether or not he had any such conversation, and Long, without any reference to the possibility of any such conversation between Schroeder and Haluska, testified merely that, to his knowledge, Haluska did not apply for reemployment. The undersigned, therefore, credits the testimony of Haluska concerning his conver- sation with Schroeder on Monday, January 22. From the foregoing testimony, it appears that the respondent, treating Haluska's protests to Challa concerning the transfer as a final refusal, ter- minated Haluska's employment, thereby deliberately ignoring the facts (1) that, during their conversation, Challa had referred Haluska to Long for settlement of the matter, (2) that Long made no objection to Haluska's deferring his decision as to his acceptance of the transfer and notifying Long thereof the following Monday morning, and (3) that Haluska, in fact notified the respond- ent on Monday of his acceptance of the transfer. The respondent not only thereby discharged Haluska but did so under circumstances which indicate that the only credible reason for the transfer and the resulting discharge was the fact that, despite Challa's general denial, Haluska was known by the respondent through Assistant Foreman Traechsler and Foreman Challa to be active in the Union's organizational campaign. For, as the testimony of the respondent's witnesses shows, the respondent sought to justify Haluska's trans- fer on the ground that Long had ordered it in order to avail the respondent of his particular skill on the transferred machine. Yet, while Challa pretended to be bound by that order with reference to Haluska in spite of Haluska's objec- tion, be failed to abide by a similar order of Long concerning Loporto, without even consulting Long and without asking or discussing the matter with Loporto.1s 13 Haluska testified that traveling from his home to the Lindahl plant would take about 2 hours as compared with 45 minutes by street car or 15 minutes by automobile from his home to the Clearing plant. 14 This conversation took place on Friday . The employees did not work on Saturday or Sunday. 15 While the inconsistent testimony of Loporto concerning his notification of Challa about his previous employment and discharge at the Lindahl plant casts doubt upon the testimony of Challa on this point , the undersigned finds it unnecessary to make a finding as to whether Challa had such knowledge . For, Loporto 's and Challa's testimony leave no doubt that they did not discuss the matter immediately before, or in connection with Long's order that Loporto be transferred. AMERICAN GEAR & MFG. CO. 679 Moreover, as the undersigned hereinafter finds, Staley and Johnnie, two of the union leaders, were removed from the day shift in Challa's department by their respective transfer to the night shift and discharged earlier on the same day that Haluska, the other of the trio of union leaders, was notified of his transfer and then discharged. Thus, the result was to break up the union trio even though, by the time Haluska was discharged at the end of the day, it appeared that Challa's day shift would thereby be reduced by three men and the respond- ent would completely lose the services of two men, including Haluska whose services Long was so insistent upon having at the Lindahl plant. These cir- cumstances and the respondent's disparate treatment of Haluska and Loporto impel the undersigned to conclude that, in fact, Haluska was transferred to the Lindahl plant and then discharged because of his union activities. Under the circumstances, the undersigned finds that the respondent discharged Julius Haluska on January 19, 1945,18 because of his union membership and activities, thereby discriminating against him in regard to his hire and tenure of employment, and discouraging membership in a labor organization. 3. The discriminatory transfer of George Staley George Staley has been employed by the respondent as an engine lathe operator since February 8, 1943. At the time he was hired, he told Long in substance that he lived with his wife and mother-in-law; that his wife was employed during the day; and that he wanted day work because his mother-in-law's antagonism for his wife (a complex which dated from the birth of the wife) made it necessary that he be home with them at night for his wife's protection. Staley, however, began work on the respondent's night shift upon Long's promise to arrange his transfer to the day shift when a replacement was available. Four or five months later, Staley was put on the day shift under Foreman Challa and Assistant Foreman Traechsler where he remained until January 19, 1945. ; In May 1944, however, after Staley's machine was transferred to the Lindahl plant and Staley had continued operating a new machine at the Clearing plant for about a month, Traechsler told Staley he was to be transferred to the night shift, but on Staley's explanation of the necessity for his staying on the day shift, Traechsler assigned llim to another machine on the day shift. As already noted, Staley was one of the five organizers of the Union at the respondent's plant.' He testified that he openly solicited memberships for the Union, keeping membership applications in his overalls so that they were par- tially visible and also in a drawer of his tool box which was accessible to Traechsler and Challa and that up to January 19, 1945, he had signed between 15 and 20 members. As the undersigned has found, Staley, Johnnie and Ha- luska also discussed their union business within the hearing of Traeschler be- tween January 10 and 19, 1945. Shortly after Staley reported for work on January 19, 1945, Challa told him he was transferred to the night shift because of a shortage of help on that shift and the fact that Staley had originally been hired for night work. Staley de- murred on the ground that he had been hired for day work and did not want night. It appears from Challa's testimony that while Staley did not then re- mind Challa of his difficult home situation, Challa knew of that from previous conversations with Staley. According to Staley's testimony, which Challa did not specifically deny and which the undersigned credits, Challa, in referring to the shortage of help, also mentioned the names of Johnnic, Haluska, and an- "Although Haluska was handed his release and final pay check only on January 22, it is apparent that his employment by the respondent was in fact terminated on January 19. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other union member and their ages relative to the draft, then asked Staley how old he was, and, upon Staley's answer, said, "Well, you are all right then." "' The end result of this conversation was an understanding that Staley was to see Long about his transfer. Leaving Challa, Staley then went to Long and objected to the transfer, re- minding Long of the circumstances which made it necessary for him to work days. Long told Staley that he would not go over Challa's head. Staley there- upon decided to accept the transfer rather than risk discharge and reported for work that night, wearing his union steward's button for the first time. He has since worked for the respondent on the night shift. The respondent contends that Staley was thus transferred to the night shift because a man was needed there and Staley had been originally hired for night work. In the opinion of the undersigned, however, Challa decided to transfer Staley to the night shift because, as evidenced by his remarks to Staley about the draft vulnerability of Haluska, Johnnie, and another union employee, he had learned through Traechsler that he had three active union members in his department and wanted to separate them. Although Staley did not remind Challa of the conditions which required him to work on the day shift, Challa admitted he knew about them and Staley had once before convinced Traechsler, who was apparently concerned in these matters, of the urgency of his reason for staying on the day shift. Finally, in view of Long's previous recognition of Staley's problem, his insistence in this instance that the matter be left to Challa is likewise suspect, particularly in view of Long's treatment of Haluska the same day. The brusque dismissal of Staley's reasonable objection to his transfer in con- trast with the fair consideration he had hitherto received under the same cir- cumstances impels the conclusion that Staley was transferred to the night shift because of his union membership and activities. The undersigned therefore finds that the respondent discriminated against George Staley in regard to hire and tenure of employment, thereby discouraging membership in a labor organi- zation. 4. The alleged discriminatory discharge of Joseph Johnnie Joseph Johnnie, the third of the trio of union organizers who operated engine lathes an the day shift under Foreman Challa and Assistant Foreman Traechsler, was employed by the respondent from February 1944 until January 19, 1945, on which date he was discharged. At the beginning of work on that day, the set-up on Johnnie's lathe was changed. According to Challa, the new set-up had not been tried before and he instructed Johnnie to stay by the machine during the day to see how well it operated. Johnnie denied having received any such instructions and testified that he left the machine four times during the morning: to get tools sharpened, to have a cut finger bandaged by the nurse, to get sandpaper, and finally to get coffee for his lunch as was the general practice among the employees."' According to Johnnie, when he returned to his machine on the second of these occasions, Challa "hollered" at him that he would have to get his work out and could not be run- ning around, and that, on the other three occasions, Traechsler, employing obscene language,1B also told Johnnie to get the work out, adding the last time, 11 Challa merely explained that he periodically checked the draft status of the men In order to enable him to plan his operations. Thus, according to his testimony , he has asked at least 50 men such questions at various times during the last 3 years. 18 It was undisputed that the respondent makes no objection to the employees ' leaving their machines for these purposes. 19 From the testimony of the witnesses , it appears clear that the use of profanity and obscenities was not uncommon either for the employees or for Traechsler . The under- AMERICAN GEAR & MFG. CO. 681 "I know what you are in here for. Furthermore, nobody will get any union in here." Johnnie further testified that he lost his temper ; that he pointed out to Traechsler that no one else was working; that he asked why Traechsler was "hollering" at him ; that Traechsler continued to "holler" and said, "You are fired" ; and that Johnnie then followed Traechsler into Challa's office to get his papers. According to Challa's version of what happened that morning, he noticed that Johnnie was leaving his machine and he, therefore, asked Traechsler to see that Johnnie stayed on the job so that the efficiency of the new set-up could be checked. Traechsler testified that he also noticed that Johnnie was away from his machine about four times that morning; that once Johnnie went to the nurse; that Johnnie may have gone for sandpaper and for coffee; that the fourth time Johnnie re- turned to his machine, he had no coffee in his hand and came from a direction which indicated that he had not been to the nurse or to the washroom ; that Johnnie's machine was not then in operation ; and that Traechsler then said to Johnnie, ". . . you better see you get going on your machine so we can find out if the job runs as good as the [new] method or the old method." According to Traechsler, Johnnie replied, "You foreign son of a bitch, you always got some- thing to kick. I am going to knock you underneath the machine," whereupon Traechsler told him, "Pack up your tool box and get out of here." According to the testimony of Traechsler, Challa, and John McHugh, one of the respondent's expediters, Traechsler came into Challa's office and excitedly told Challa that he had trouble with Johnnie, that he had fired Johnnie, and that "Either I goes or he go." 20 Challa and Traechsler testified that Challa went out into the plant and immediately returned with Johnnie who then said he would get even with Traechsler some day. McHugh testified that Johnnie came in immediately after Traechsler and said, "Swiss, you foreign-born bastard, I ought to kick the 21 out of you." A day or two later Johnnie returned to the employment office for his tools and again met Traechsler. According to Traechsler, when he asked to inspect the tool box to ascertain whether it contained company tools, Johnnic said he had no key and then raised his hands saying he was going "to knock the ° out of" him and get even. Plant Guard Frank Rynne testified that he saw Johnnie raise his hand ; that he stepped in between the two men ; and that the affair ended when Traechsler said he did not want any trouble with Johnnie. In his testimony, Johnnie at first denied that he had ever threatened to whip or strike Traechsler or that he ever had trouble with anybody in the plant. Later, he admitted that, on his return to the employment office for his tools, he told Traechsler that "one of these days he [Traechsler] would be ... carried out of that shop," meaning thereby that Traechsler would be beaten up and in no shape to walk. At another point in his testimony, he also admitted that on one occasion he had offered to whip another employee by the name of Keown. Each of two other employees testified as to an incident in which Johnnie threatened, in the case of one of them, to punch his nose, and in the case of the other, to knock his head off. Still another employee testified that he had seen Johnnie raise his liand on the second of these occasions. Johnnie denied making any threats in these cases but admitted that he had arguments with the men in question. signed , therefore, sees no significance in the mere utterance of such language , whether by the employees or the supervisors , and construes statements including such language as if they were cast in equivalently firm, decorous language. 20 According to Challa , Traechsler also told him that Johnnie had threatened to beat up Traechsler. 21 Blanks inserted in quotation from testimony indicate profane or obscene language. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the facts already discussed in connection with Haluska's discharge and Staley's transfer, and in spite of Traechsler's and Challa's denials, the undersigned finds that the respondent, through Traechsler and Challa, knew of Johnnie's union membership and activities. However, upon comparison of Johnnie's testimony with that of Challa, Traechsler, and the 'other witnesses produced by the respond- ent so far as such testimony is relevant to the circumstances of Johnnie's dis charge, the undersigned credits the respondent's witnesses. It thus appears that Johnnie, upon being cautioned on but one occasion by Traechsler to continue the operation of his machine, threatened Traechsler, and was therefore discharged. The testimony of the respondent's witnesses as to Johnnie's pugnacious disposition and his threats against Traechsler in Challa's office on the day of his discharge and in the employment office several days later, all of which the undersigned credits, is, of course, material only so far as it supports Traechsler's testimony concerning the threat of Johnnie which led to the latter's discharge. But in that connection it is highly persuasive. The undersigned, therefore, finds that the respondent discharged Joseph Johnnie because of his insubordination and his threat against Traechsler and that the respondent did not thereby discriminate against Johnnie in regard to his hire or tenure of employment. 5. The alleged discriminatory discharge of Clifford Nelson Clifford Nelson was employed by the respondent as a tool and gauge maker in July or August 1943. He became a final inspector approximately in July 1944, and then about 4 months before his discharge on April 5, 1945, he became, and remained, a line inspector on the night shift in the straight bevel department under Chief Night Inspector Jesse Etchason.2 Nelson testified that he joined the Union in January 1945; that, although he never wore a steward's button, he solicited union memberships at the machines and in the washroom ; that, after he joined the Union, Etchason was no longer friendly ; that a month and a half before Nelson's discharge, Etchason told him he was to check the gears in his department 100 percent instead of merely spot- checking; anc3 that Nelson's inquiries disclosed that no other inspector had been given such an order. According to Nelson, he received two wage increases in 'the time he was an inspector, and never received any criticism of his work or warning that he was passing too much scrap,' except that once, when Nelson had passed five defective bevel gears, Etchason told him he would have to watch a little more closely. Nelson further testified that, when he reported for work at 5 o'clock in the afternoon of April 5, 1945, Etchason showed him 25 defective gears which lie said Nelson had passed the previous night, and told Nelson he was discharged; that Nelson knew of another inspector who had passed more scrap than this in September 1944 and had not been discharged but he could not remember that inspector's name; and finally that Nelson knew of no inspector who had been discharged because of the amount of scrap lie had passed. Robert Brown, a night operator, testified that he ran 2 or 3 machines, includ- ing the machine which produced the scrap, oversight of which led to Nelson's discharge; that the machine had been set up during the preceding day shift; that on the night in question, Night Foreman Jacobs checked the machine at the beginning of the shift but not thereafter ; that the machine turned out about 50 or 55 gears that night; and that Brown saw Nelson during the night but did not 22 As each operation in the manufacture of a gear is completed, the product is inspected in that department by a so -called line or floor inspector . "Final inspectors," as the term Indicates, inspect the completed gear just before shipment. 23 Scrap is the term applied to defective gears which cannot be salvaged. AMERICAN GEAR & MFG. CO. 683 speak to him. Marie Worofka, the day inspector corresponding to Nelson, testi- fied that when she came to work on the (lay of Nelson's discharge, she checked Brown's machine, and discovering that it was not running properly, found that 25 of the gears turned out by that machine the preceding night were scrap' According to Worofka, she reported the scrap to Foreman Robinson on the day shift, in accordance with general instructions which she had received before Nelson ever came into the department. Robinson testified that he complained to Chief Inspector Evers about Nelson's passage of so much scrap on this occasion. Chief Night Inspector Etchason, who was Evers' subordinate, testified that, at the beginning of the following night shift, Evers told him about the 25 pieces of scrap which Nelson had passed the preceding night and asked what was the matter with Nelson ; ° that Etchason showed Nelson the scrap and asked what lie knew about it; that Nelson replied, "I didn't even check, the machine last night," adding that he did not have time to do so ; that Etchason then said, "You checked the other jobs. Why didn't you check this one?" to which Nelson re- peated that he did not have the time; and that Etchason thereupon discharged Nelson. Set-up man Horazy testified that Nelson later told him of his discharge and his admission to Etchason that he had not checked the gears from the machine which produced the scrap the preceding night. Etchason testified that Nelson's admission that he had not inspected any of the gears from the machine which produced the scrap on April 4, climaxed a series of complaints about Nelson's work from Robinson, Jacobs, and Evers throughout the entire 4 months of Nelson's service as a line inspector ; that, as a result of these complaints, Etchason had spoken to Nelson on five or six occa- sions, two of them during the last week of Nelson's employment ; that Etchason at these times asked Nelson why he was not watching his work ; and that Nelson did not have much to say and would shake his head and walk off. Robinson testified that lie had received complaints about Nelson's work from Night Fore- n:an Jacobs seven or eight times over a period of 2 or 3 months, from set-up min Horazy two or three times in the 5 weeks preceding Nelson's discharge, and from Day Inspector Marie Worofka at different times; that Robinson had in turn complained to Chief Inspector Evers and Chief Night Inspector Etchason ; and that on the occasion of his final complaint to Evers, Robinson told Evers that Nelson had had enough time to become accustomed to the work and that Robinson wanted him transferred out of his department. Horazy and Worofka testified that Nelson had frequently passed scrap although not as much as he (lid on April 4; that they had repeatedly spoken to Nelson about it and sought to help him ; that Nelson had been indifferent ; and finally they had made complaints to Robinson. The undersigned credits the testimony of the respondent's witnesses, Etchason, Robinson, Brown, Horazy, and Worofka, concerning the circumstances of Nelson's discharge and the events preceding and leading up to it. Upon the basis of that testimony, the undersigned concludes that Nelson was discharged for passing an excessive amount of scrap and failing to perform the duties for which he was employed in spite of a series of warnings from Etchason. The undersigned is also of the opinion that the testimony does not establish the fact that Nelson was sufficiently prominent or open in his union activities as to warrant the con- clusion that the respondent had any knowledge either of his union membership or his union activities. The undersigned, therefore, finds that the respondent, by discharging Clifford Nelson, did not discriminate against him in regard to his hire or tenure of employment. 11 This was Worofka's usual practice at the beginning of her shift. 21 Evers did not testify. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The alleged discriminatory discharge of Frank Bash Frank Bash was hired by the respondent as a mill hand at 75 cents per hour in September 1941 and worked for the respondent from that time until he was discharged on April 5, 1945, at which time he was working in the mill and drill department under Foreman Louis Cordova at $1.45 per hour. In the early part of 1944, Bash became a member of an affiliate of the C. I. 0. other than the Union, solicited members whenever he had the chance, and wore a steward's button. According to his testimony, in April 1944, Superintendent Collins told him to take the button off but, although he did not do so, Collins never spoke to him thereafter about it. Bash further testified that on one day in March 1944, when he had left his machine to get a micrometer and to go to the washroom Collins told him, "If you leave your machine again, you are through," and would not permit Bash to explain his absence Re Collins, in his testimony, denied telling Bash or any other employee to take off a union button and also stated that, while he did not remember, he might have warned Bash, as he has warned 500 different employees, that he would be through if he did not stay at his machine. The undersigned credits Collins' denial of the charge that he told Bash to take off his union button in 1944 and also finds that, if Collins warned Bash at about that time to stay at his machine under penalty of discharge, that fact would not be persuasive of knowledge by Collins of Bash's union member- ship and activities. Bash further testified that Foreman Cordova rejected Bash's request for a release to take a job elsewhere in September or October 1944 and that, in Novem- ber, when the other job was no longer open and after Bash had asked for a raise, Cordova told him, "I am letting you go." Bash testified that he went to Long who said he understood Bash wanted more money and had another job and then referred him to Cordova again; that Cordova permitted him to keep his job but told him that, although his work was satisfactory, the company was holding his union activities against him. Cordova testified, however, that Bash asked for a raise, stating that he had another job out of town and would quit the re- spondent's employ unless he got the raise; that, when Cordova later told Bash his request for the raise had been refused by Long, Bash said that this would be his last week ; that, at the end of the week, Cordova informed Bash his termina- tion papers were ready; that Bash said, "Well, are you going to let me go?" to which Cordova replied that there was no alternative since the raise was impos- sible; that Bash returned later with advice from Long that Bash's retention was a matter for Cordova to decide; and that Cordova then agreed to let Bash remain upon the latter's assurance that he was satisfied with his wages and his work. The undersigned credits the testimony of Cordova and finds that the respondent did not attempt to terminate Bash's employment in 1944 because of his union activities or for any reason and that Cordova did not so inform Bash. Bash joined the Union in January 1945, and from that time until April 5, 1945, he signed up members for the Union, although it does not appear that he did so in the plant. According to his uncontradicted testimony, his work was not criticized until the day of his discharge. About a week before that, Cordova and Bash had discussed the feed and cut of Bash's machine on a new set-up, with the objective of increasing production. According to Bash, Cordova insisted twice upon increasing the feed, the first time after operations had begun with Bash's original set-up, and the second time, after Bash had cut down the feed because the cutters had burned and the tools had to be sharpened. On April 5, at about 28 Testimony concerning these alleged incidents in the early part of 1944 was offered expressly as background for Bash's discharge , and not as evidence of independent viola- tions of the Act. AMERICAN GEAR & MFG. CO. 685 4:30 o'clock in the afternoon, after a week on this operation , the fixture came loosq in the machine, damaging the cutter and scrapping the gear. Bash testi- fied that Cordova told him he should not have taken such a big cut so fast; that Bash replied, "You put the speeds on this thing ; I haven't. You changed what I had on there"; that nothing more was said that day; and that Bash then cleaned up the machine, took the cutter away for sharpening, washed up, and left the plant at 5 o'clock , his regular quitting time. Although Bash thus testified on direct examination that he charged Cordova with responsibility for the speed and feed which caused the accident, he testified on cross-examina- tion that the only conversation between him and Cordova at the time consisted of Cordova's charging him with having taken too big a cut and his reply, "I have been taking it right along. The cutter will take it." This last testimony of Bash indicates that instead of ascribing the accident at the time to Cordova's insistence upon a high speed and a deep cut, Bash defended the cut he was taking on the ground that he had been taking it right along without any trouble. So far as it goes, this is consistent with Cordova's testimony. According to Cordova, when Bash and he discussed the speed of the machine, Cordova wanted a higher speed than Bash did, and they fixed it somewhat slower than Cordova had in mind. Cordova testified that he then showed Bash how heavy a cut he should take ; that the operation proceeded satisfactorily for 4 or 5 days until the accident on April 5; that Cordova then found that Bash had been taking a heavier cut than they had agreed upon; that he asked Bash to explain why he had raised the feed and increased the cut; and that Bash said, "You['re] getting too damn smart," and, with a threat of violence vulgarly phrased, put his tools in the tool box and walked away. The undersigned credits the testimony of Cordova. According to Cordova, hei made up his mind not to put up with Bash any longer and told Long he was going to discharge Bash. Long and Cordova both testified that they discussed the matter and that Long agreed with Cordova that if Bash were not discharged, the other men would hear the story and Cordova would not be able to enforce his orders thereafter. Cordova told Bash the following morning that he was discharged. According to Bash, hel said to Cordova, "What, again?" and asked Cordova for the reason, to which Cordova replied that the accident the preceding day was not the reason but would say no more. Cordova testified that Bash asked him whether he had asked the War Labor Board if lie could discharge him and that Cordova replied that he did not have to ask anybody-that so far as he was concerned, Bash was through. The undersigned credits Cordova's testimony and rejects the apparent implication of Bash's testimony that Cordova had intended him to understand that the dischage was based upon union activities. Upon the evidence, the undersigned concludes that Bash was in fact dis- charged, as the respondent contends and Cordova and Long testified, because of his insubordination when properly taken to task for disobeying his foreman's instructions in the operation of his machine and for thus causing the accident already described. The undersigned, therefore, finds that the respondent, by discharging Frank Bash, did not discriminate against him in regard to his hire or tenure of employment. 7. The alleged discriminatory discharge of James Robertson James Robertson was employed by the respondent from January 1944 until his discharge on June 6, 1945. For the first 7 months ne worked in the straight tooth division and thereafter in the spiral gear division, both of which divisions are in Department 10 under Foreman Thomas (Ted) Robinson. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robertson joined the Union in December 1944, solicited memberships openly in the plant, wore his union button, and, as Foreman Robinson admitted. was known by Foreman Robinson to be a union member. According to Robinson's uncontradicted testimony, he solicited the union membership of Set-up Alan Ernest Lee Hopkins in March 1945,' and Hopkins, after some discussion, said, "If you keep it up, you are going to get fired with that union stuff around here." According to the testimony of Hopkins and Test Set-up Man Anthony Verhagen, Robertson was a disagreeable, uncooperative fellow-employee who, by what be termed "kidding", kept the department "in an uproar." Hopkins testified that he had been a supervisor in the spiral gear division for 2 years, an employee of the respondent for 5 years, and a gear cutter for 25 years ; and that Robertson appeared unwilling to do what Hopkins tried to teach Jilin. Although Robertson testified that, to his knowledge, Hopkins was not a supervisor, Verliagen, whose job was to pick up and test the gears turned out by the operators, testified that 4 months before the hearing, Robertson had told Verhagen that he had just found out that Hopkins was his boss, to which Verhagen had replied, "Why certainly he is. Ile is my boss, too." Verhagen also testified that Robertson was always saying that "he didn't want to take no crap from Hopkins" ; that Robert- son constantly complained about the number of machines he had to operate; that Robertson came to work grouchy every day ; that, as an example of his unpleasantness, Robertson said, "Aw, go to Hell," when asked to wipe gears for a test run ; that Robertson also refused to stamp his gears 2' unless told to do so by Verhagen and then would habitually blow up and would shout across the shop, "Go to hell," or "Mind your own business"; and that Robertson also refused to cooperate with Verhagen when the latter asked him to run his machine on a test. Both Hopkins and Verhagen testified that they complained to Foreman Robin- son about Robertson's work and lack of cooperation. Verhagen testified that he made these complaints 6 or 7 times ; and Hopkins, that he complained 15 or 20 times. Verhagen, Hopkins, and Foreman Robinson testified that Foreman Rob- inson, upon receiving these complaints said that Verhagen and Hopkins should try to get along with Robertson and help him. Although Robertson denied the incidents given by Verhagen as illustrative of his offensive refusals to cooperate, the undersigned credits the testimony of Verhagen and Hopkins con- cerning Robertson's typical conduct and also finds that Hopkins was Robertson's supervisor and Robertson knew it. On June 19, 1945, Hopkins was at work filing gear on a special, unusually diffi- cult job which Robertson, who had been a gear cutter only one and a half years, admitted that he was incapable of performing. Hopkins testified that Robertson remarked, "Well, he has cut gears twenty-five years and he still has to cut them with a file"; that Hopkins then said "If I cut this gear and stand here and roll it and test it for two weeks, is that any of your business?" ; that Robertson replied, "I was only kidding" ; that Hopkins said "Sure, you were only kidding, but don't do those things. It keeps guys nervous and worked up. Hell, you go around like that to all the guys" ; that Robertson said, "What the can you do about it" ; that Hopkins said, "Jim, I can do more about it than yon think I can" ; and that Robertson rejoined, "Oh, the hell with you. You can't do anything about it," and then walked away., According to his further testi- mony, Hopkins thereupon told Foreman Robinson in Robertson's presence that he had gone as far as he could with Robertson, that Robertson kept the whole "Robertson's testimony which indicated that this occurred in March 1945, was to the effect that he received union membership applications on January 10, 1945, the day La Faire left the plant ; that shortly thereafter lie solicited Hopkins ; and that he again solicited Hopkins 2 months later on the occasion mentioned in the text. 28 The gears were stamped to indicate which of the operators had produced them. AMERICAN GEAR & MFG. CO. 687 department "torn up," and that either Robertson or he would have to leave the respondent's employ. Foreman Robinson testified that Hopkins told him what had happened and that if Robertson did not leave, Hopkins would. Both Hopkins and Foreman Robinson testified that upon Robinson's question, Hopkins said he wanted Robertson discharged, and that Robinson then discharged Robert- son who said nothing at the time. Robertson denied that he bad used any profane language or that he had asked Hopkins "What the hell can you do about it?" He admitted that he liked to kid people and that lie kidded Hopkins, Verhagen, and another employee named McCormick but denied that lie did it for the purpose of annoying them. He also admitted that, on the occasion of his discharge, he had said to Hopkins in the hearing of another employee, "Look at `Red' [Hopkins] filing the gear." 29 Robert- son testified that Hopkins then asked him whether it was any of his business what lie did with the gear; that Robertson, thinking that Hopkins was kidding, laughed at first but when the question was repeated, he agreed with Hopkins that it was none of his business, whereupon Hopkins said, "From now on, I want you to mind your own business, you are nothing but a labor agitator any- way"; that Robertson replied, "Listen, Red, so far as labor agitator is con- cerned, that is my business as well as it is your business filing that gear, so pipe down"; that Robertson walked over to his machine but Hopkins said, "Don't run that machine, you are fired" ; that Robertson answered, "You have no au- thority to fire me, Red" because, so far as he knew, Hopkins had no supervisory authority; that Hopkins then brought over Foreman Robinson who asked Hopkins if he wanted Robertson discharged ; and that upon Hopkins' saying "Yes," the foreman said to Robertson, "Come on, you are fired." The undersigned credits Hopkins testimony concerning his altercation with Robertson. It is apparent from the credible testimony of Verhagen, as well as that of Hopkins, that Robertson was disposed not only to be uncooperative and sarcastic in his relations with his fellow employees but also to be resentful of Hopkins' authority as a supervisor. On the other hand, Hopkins, whose ability and careful attention to his work was unquestioned, appeared to the undersigned to be a highly strung, sensitive man, whose testimony was inherently credible, and to whom the typical conduct of Robertson--particularly that on the day of Robertson's discharge-would be extremely annoying and unsettling. Therefore, although Foreman Robinson and Hopkins knew of Robertson's union activities and although Hopkins had 2 months previously warned Robertson he might be discharged, the undersigned nevertheless credits not only Hopkins' denial that he made any reference to Robertson's union activities on the date of the Tatter's discharge but also Hopkins' testimony that the discharge was the spur-of-the- moment result of Robertson's flouting of his supervisory authority. The under- signed consequently finds that the respondent, by discharging James Robertson, did not discriminate in regard to his hire and tenure of employment. Iv. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES, Ul'ON COMMERCE The activities of the respondent found to be unfair labor practices 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 bur- dening and obstructing commerce and the free flow of commerce. 2U Robertson testified that it was unusual for a gear cutter to file a gear and when he did, it was the subject of jocular comment. 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Since it has been found that the respondent has engaged in certain unfair labor practices, the undersigned will recommend that it cease and desist there- from and take certain affirmative action in order to effectuate the policies of the Act. The undersigned has found that by discharging Julius R. Haluska and by trans- ferring George Staley to the night shift, the respondent discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the Union. It will be recommended that the respondent offer Julius R. Haluska and George Staley immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and that the respondent make Julius R. Haluska whole for any loss of pay he may have suffered by reason of the discrimination against him by pay- ment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discriminatory discharge, to the date of the offer of reinstatement, less his net earning,30 during that period. No recom- mendation is made for the reimbursement of George Staley for loss of earnings, since it does not appear from the record that his discriminatory transfer to the night shift involved any reduction in his wage rate or earnings. Upon the basis of the above findings of fact, the undersigned makes the fol- lowing : CONCLUSIONS OF LAW 1. United Steelworkers of America, C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Julius R. Haluska and George Staley and thereby discouraging membership in United Steelworkers 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. 3. By interfering with, restraining, and coercing his 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. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent did not interfere with, restrain, or coerce his employees by physically preventing the distribution outside the respondent's plant building of leaflets and handbills urging the employees to become members of United Steel- workers of America, C. I. O. 6. The respondent did not discriminate in regard to the hire and tenure of employment of John E. La Faire, Joseph Johnnie, Clifford E. Nelson, Frank Bash, or James Robertson. RECOMMENDATIONS On the basis of the above findings of fact and conclusions of law, the under- signed hereby recommends that the respondent, Maurice A. White, doing business '*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 this unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. AMERICAN GEAR & MFG. CO. 689 as American Gear & Mfg. Co. and as American Stock Gear Company, his agents, successors, and .assigns shall : 1. Cease and desist from : (a) Discouraging membership in United Steelworkers of America, C. I. 0., or in any other labor organization of his employees, by discriminatorily discharging or transferring employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing his em- ployees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist United Steelworkers of America, C. I. 0., or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, 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 Julius R. Haluska and George Staley immediate and full rein- statement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make Julius R. Haluska whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discriminatory discharge to the date of the offer of reinstatement, less his net earnings" during that period. (b) Post at his plant in Bedford 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, be posted by him immediately upon receipt thereof, and main- tained by him for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; (c) Notify the Regional Director for the Thirteenth Region in writing, with- in ten (10) days from the date of the receipt of this Intermediate Report, what steps the respondent has taken to comply-with the foregoing recommendations. It is recommended that the complaint, as amended, be dismissed so far as it alleges (1) that the respondent interfered with, restrained, and coerced his employees by physically preventing the distribution outside the respondent' s plant building of leaflets and handbills urging the employees to become members of United Steelworkers of America, C. I. 0., and (2) that the respondent discrim- inated in regard to the hire and tenure of employment of John E. La Faire, Jo- seph Johnnie, Clifford E. Nelson, Frank Bash, and James Robertson, thereby discouraging membership in the United Steelworkers of America, C. I. O. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the respondent has notified said Re- gional 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. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, effective November 27, 1945, as amended, 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, S' See footnote 30, supra. 701592-47-vol. 69-45 690 DECISIONS OF NATIONAL LABOR RELATIONS 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 mo- tions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the parties and shall file a copy with the Re- gional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. WILLIAM F. S CHARNIKOw, Trial Examiner. Dated December 19, 1945. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist UNITED STEELWORKERS OF AMERICA, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to Julius R. Haluska and George Staley immediate and full reinstatement to their former or substantially equivalent positions with- out prejudice to any seniority or other rights and privileges previously en- joyed, and make Julius R. Haluska whole for any loss of pay suffered as a result of the discrimination. 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. MAURICE A. WHITE DOING BUSINESS: AS AMERICAN GEAR & D'TFG. CO. AND AS AMERICAN STOCK GEAR COMPANY 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 accord- ance with the selective service act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.