Textile Machine Works

In the Matter of TEXTILE MACHINE WORIis and UNITED STEELWORKERS OF AMERICA, C. I. O. Case No. 4-C-1474.Decided July 03, 1946 Mr. John H. Garver, of Philadelphia , Pa., for the Board. Messrs. Joseph S. Kleinbard and Robert John Brecker, of Phila- delphia, Pa., for the respondent. Mr. Harry Boyer, of Reading, Pa., for the Union. Miss Helen Hart, of counsel to the Board. DECISION AND ORDER On March 5, 1946, Trial Examiner T. B. Smoot issued his Inter- mediate Report in the above-entitled proceedings, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, on April 12, 1946, the respondent filed exceptions to the Intermediate Report, and a brief in support of its exceptions. The Board has considered the rulings made by the Trial Examiner at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. Upon request of the respondent and pursuant to notice, a hearing was held before the Board in Washington, D. C., on June 11, 1946, for the purpose of oral argument. The respondent and the Union were represented by counsel and participated in the argument. The Board has considered the Intermediate Report, the excep- tions and briefs filed by the respondent, and the entire record in the case, and hereby adopts the findings of fact, but not the conclu- sions of law, of the Trial Examiner, except insofar as they are incon- sistent with our findings hereinafter set forth; and sustains the ex- ceptions to the extent indicated below. 1. The Trial Examiner made the subsidiary finding that statements made in direct violation of Section S (1) of the Act occurred in only one instance. In January 1945, when the Union was attempting to expand its organization to include the machine shop, the Trial Exam- 69 N. L. R. B., No. 96. 784 TEXTILE MACHINE WORKS 785 iner found that Assistant Foreman Kantner, while setting up Harry Snyder's work, made certain derogatory remarks about the Union, including the statement that "anyone who joins the Union is a damn fool." This incident involved an isolated and unauthorized statement of a minor supervisory employee who had personal reasons for his animosity toward unions. In view of the absence of evidence showing that the respondent harbored general hostility toward the Union and our subsequent finding that the discharge of Harry Snyder was not motivated by anti-union bias, we consider this statement only as an ex- pression of personal opinion.' Therefore, we are of the opinion that this statement alone does not warrant a finding that the respondent has violated Section 8 (1) of the Act.2 2. The Trial Examiner found that the respondent discriminatorily discharged Harry Snyder on February 8, 1945, because of his activities on behalf of the Union. The respondent contends, however, that Sny- der, an employee with an unsatisfactory work record, was discharged for violation of the Company's no-smoking rule. We cannot agree with some of the subsidiary findings upon which the Trial Examiner's conclusion is based, nor with his ultimate conclusion that Snyder was discharged for union activity. In referring to the discussion of Snyder's employment record by Superintendent Kaul and his assistants a few days prior to Snyder's discharge, the Trial Examiner states that the respondent did not attempt to explain why the discussion of Snyder occurred at this time. He asserts that no explanation was given by the respondent as to why, with over 2,000 employees in its machine shop, 1 employee, who at the time had committed no overt act, aside from his union activity, was singled out for discussion of his work record and rule violations for the purpose of deciding whether his employment should be terminated. From this the Trial Examiner infers that Snyder's union activity was responsible for his being thus singled out, and that his hold on his job was precarious from that date. But the uncontradicted testimony of Kaul is that the work records of all employees were discussed practi- cally daily after 5 o'clock because these records were submitted to his office at this time, and that, on this particular occasion, general rule violations were. discussed and Snyder's name was brought up. Thus, it does not appear that Snyder was inexplicably singled out for dis- 1 See Matter of Gulf States Utilities Company, 42 N. L. It. B. 988. 2 The Trial Examiner also found that Foreman Gross, who met Snyder at the Lone Star Athletic Club after the Union's meeting, told employees of the respondent that Snyder was an "agitator." The record , however, establishes the fact that Gross made the state- ment to Mr. Lewis, a Board Agent , telling him that he was not surprised at seeing Snyder at the union meeting because Snyder was always an "agitator." There was no testimony to show that Gross made this remark about Snyder to any employees of the respondent. Accordingly , we find that Foreman Gross did not tell employees that Snyder was an "agitator." 701592-47-vol. 69-51 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cussion at this particular meeting, but rather that he was logically the subject of conversation due to his infraction of factory rules on several occasions. The Trial Examiner's finding to the contrary, and the in- ference he draws therefrom, is not supported by the record. The Trial Examiner found, in connection with the widespread viola- tion of the no-smoking rule, that supervisors and Army and Navy personnel could smoke anywhere, at any time, in the plant. The im- plication is that this group were permitted to smoke and the Trial Examiner states that such a policy could not but reduce in the employ- ees' minds the necessity of the no-smoking rule and thus lead to its open violation. This finding of the Trial Examiner that supervisors and Army and Navy personnel could smoke anywhere, at any time, is apparently based on the General Remarks Section which appears at the end of the regular inspection report of the respondent's insurance company. The report is dated May 1943 and reads : Smoking during working hours is not permitted in the machine shop areas. Smoking on the part of those in charge, as well as by the representatives of the U. S. Army or Navy, should not be prac- ticed during operating hours, thus setting the proper example to other employees. At the hearing, Assistant Superintendent Kline was asked if smok- ing was being engaged in by,foremen, assistant foremen, or any of the supervisory personnel in the machine shop. Kline stated that it occurred "only during that period before the war or at the beginning of the war when smoking was permitted during overtime periods." Kline's attention was also directed to that portion of the insurance company's report set forth above. Kline testified that Superintendent Kaul had warned some of the Army and Navy inspectors that "it was a rule at Textile not to smoke during working time on the premises," and that steps were taken to bring about discontinuance of the prac- tice. He further stated that the rule was and still is strictly enforced as far as he knew. This testimony was unrefuted.3 On this state of the record we cannot conclude that the Trial Examiner was justi- fied in finding that the no-smoking rule did not apply to supervisors or to Army and Navy personnel, and drawing an inference therefrom. The finding of the Trial Examiner that "the record fails to show that Snyder was warned in the 4 years of his last employment with re- spondent that he was unsatisfactory in any manner" is not borne out by the record.4 The record is replete with warnings, The Trial 3 Charles Kilpatrick, another employee of the respondent and a Board witness, testified that he had never seen any foremen or assistant foremen smoking during working hours. 4 It is noted that, in a footnote following this statement, the Trial Examiner states that Assistant Superintendent Smith did testify that lie had "cautioned" Snyder about not ex- pending enough effort on his work. In view of this footnote, it appears that when the Trial Examiner refers to the dearth of warnings given Snyder during his last employment, TEXTILE MACHINE WORKS 787 Examiner himself refers to the testimony of Assistant Superintend- ents Smith and Kline that they had "cautioned" Snyder about smok- ing. In a footnote to the Intermediate Report, he also sets forth Foreman Behney's testimony that on one occasion he had warned Snyder and other employees in a group to "cut out smoking" and that on another occasion he had warned Snyder alone. Snyder, him- self, admitted that he was cautioned by Foreman Behney and Assist- ant Superintendent Kline; he failed to recall that Smith had spoken to him about smoking but he did not deny that he may have. Behney testified that about 6 months before Snyder's discharge he had "cau- tioned [Snyder] about smoking and he [Snyder] realized it was a violation and what the penalty might be." Behney further testified that a month before Snyder's discharge, lie had cautioned Snyder again about smoking and about "a slight violation in certain things." Kline testified that he had reminded Snyder about factory rules regarding smoking approximately 6 months prior to Snyder's dis- charge and that he told Snyder "that this held for him or any other employee. If we caught any one smoking during working hours in the plant they were subject to immediate dismissal." 5 Assistant Superintendent Smith testified that he had cautioned Snyder "3 times at least, about his efforts that he was expending on work and also that [he] had suspicions that he was smoking." On the last occasion. about 3 months prior to Snyder's discharge, Smith testified that he "called his attention to the breaking of the rule of smoking," and that breaking the rule would lead to discharge. The record supports the respondent's contention that it was engaged in war production involving many fire hazards and that as a result it sought to enforce the no-smoking rule.° The facts set forth above show that Snyder was given repeated warnings by the respondent for his disregard of the no-smoking rule, and had ample opportunity to mend his ways. The admonitions given Snyder by Assistant Super- intendents Kline and Smith were clear notice that he would be sub- ject to immediate dismissal if he continued to violate the rule. When Superintendent Kalil made the decision to discharge Snyder for his last violation of the rule, he had been informed by his assistants of the previous warnings given Snyder and was aware of the inferior he had in mind admonitions concerning the quality of his work and not concerning in- fractions of factory rules. But smoking violations by an employee would be a "manner" in which he would be regarded as "unsatisfactory." 5 Snyder admitted that Kline had talked to him about smoking but denied that Kline had told him that any one found smoking during working hours would be discharged. The respondent posted at least two notices in the plant warning its employees that smoking during working hours was prohibited. One of these notices posted in July 1943 stated that this was the last warning and that henceforth all employees who smoked dur- ing working hours "are to be reported to the Superintendent's Office and must be prepared to face the penalty which shall be imposed upon them." In November 1944, the respond. cut again posted it notice instructing foremen to send employees found smoking on the premises to the Employment Office immediately. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment record made by Snyder.' We do not believe that the evidence reveals that the treatment accorded to Snyder under the cir- cumstances differed substantially from that afforded other employees of the respondent so as to support an inference that he was given disparate treatment. In some smoking violation cases it is true that warnings and final warnings were entered on the personnel record of the violator before punishment, but the Employment Manager testi- fied that this was not always the procedure, there being no uniform method of keeping records on rule violations., On two occasions em- ployees were sent home without any previous warning. The fact is that the warnings Snyder received from Kline and Smith were plainly "final," and we do not believe it to be of great significance that they were not actually recorded on Snyder's personnel card. Moreover, one other employee besides Snyder was discharged during the war period primarily for smoking and without prior notice being indicated on his employment record.9 In view of the fact that there was ample reason to discharge Snyder for the repeated violations of the no-smoking rule, the absence of any satisfactory evidence that he actually received disparate treatment or that the respondent was hostile to union organization so as to be motivated to dismiss Snyder for the purpose of discouraging union activity, we find that the respondent did not discriminatorily dis- charge Snyder because of his activities on behalf of the Union. We have already found that the respondent did not engage in independent violations of Section 8 (1) of the Act. We shall, accordingly, dismiss the complaint. 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 complaint against the respondent, Tex- -tile Machine Works, a corporation, Wyomissing, Pennsylvania, be, and it hereby is, dismissed. MR. JOHN M. HOUSTON, dissenting : This record convinces me that Snyder was discharged in violation of Section 8 (3) of the Act. Y Although there was a conflict in the testimony as to whether Snyder had refused to work Sundays and had had to be changed from piece rate to a day rate because his work output was so low he could not earn an adequate wage on the piece rate , the fact remains that Snyder's personnel record, prior to his discharge , shows his conduct rating as only "fair," his production record also as "fair," and his ability as only "fair " ; subsequent to his discharge, his conduct was rated as "poor." s Fleischmann , Employment Manager, stated that he did not always receive a record of the infractions of the rules or breach of duty of an employee , although in most cases he was notified of the warnings. eAs the Trial Examiner points out, the employment card of James Haddow, who was discharged in November 1943, reveals that he was dismissed for disorderly conduct, smok- ing and intoxication. The back of the card, however, indicates that disagreement with his foreman over smoking was the dominant reason for his dismissal . No warnings were in- dicated on the card previous to this controversy but were apparently administered verbally to Haddow according to the foreman's remarks on the card at the time of the discharge. TEXTILE MACHINE WORKS 789 The Trial Examiner has found, and there is no reasonable basis for a contrary conclusion, that Snyder was the foremost proponent of the Union in its organizational attempts in the respondent's machine shop. In view of the open character of Snyder's activity on behalf of the Union, the Trial Examiner's conclusion that the respondent had knowledge of Snyder's leadership is amply warranted. I con- sider the disparity with which Snyder was treated as contrasted with the treatment accorded other employees who disregarded the re- spondent's no-smoking rule as decisive of the issue of discrimination. The credible evidence discloses that there was widespread disregard of that rule. However, during the war period, only 6 out of approxi- mately 2,400 employees were disciplined for offenses in connection with the rule. In no case, except Snyder's, did disciplinary action amount to more than a 5-day lay-off even for the most flagrant in- fraction. Violators were usually given a warning noted on their personnel record after a visit to the employment office. This pro- cedure was abandoned in Snyder's case and his discharge was the severest penalty ever imposed upon an employee charged with violat- ing the no-smoking rule. The inference is reasonable that, by its conduct in relation to Snyder, the respondent sought to prevent his organizational efforts in its machine shop. I must therefore dissent from the dismissal of this portion of the complaint. INTERMEDIATE REPORT Mr. John H. Garver, of Philadelphia, Pa., for the Board. Messrs. Joseph S. Kteinbard and Robert John Brecker, of Philadelphia, Pa., for the Respondent. Mr. Harry Boyer, of Reading, Pa., for the Union. STATEMENT OF THE CASE Upon a second amended charge duly filed by United Steelworkers of America, C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourth Region (Philadelphia, Pa.), issued its complaint dated January 17, 1946, against Textile Machine Works,' a corporation, Wyomissing, Pa., herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notice of hearing, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the respondent: (1) from and after December 1944, made disparaging and derogatory remarks about the Union and its members, advised, suggested to, and warned its employees that their membership in and activities in behalf of the Union or participation in other concerted activities would result in discharge 'The complaint was directed against Textile Machine Works , Inc., but by stipulation the correct name of Respondent was shown to be Textile Machine Works. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from employment, (2) on February 8, 1945, discharged Harry A. Snyder for the reason that he joined or assisted the Union or engaged in other concerted activi- ties, and (3) by such acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent filed an answer dated January 24, 1946, denying the commission of any unfair labor practices. Pursuant to notice a hearing was held at Reading, Pennsylvania, on February 13, 14, and 15, 1946, before the undersigned, T. B. Smoot, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the Respondent were represented by counsel and the Union appeared by its representative ; all participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the hearing, motion of counsel for the Board to conform the complaint to the proof in formal matters was allowed without ob- jection, and counsel for the Board and respondent argued orally before the under- signed. Counsel for the respondent thereafter filed a brief. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. TIIE BUSINESS OF THE RESPONDENT The respondent, Textile Machine Works, a Pennsylvania corporation, is engaged at Wyomissing, Pennsylvania,2 in the manufacture of knitting and braiding ma- chines and during the war manufactured articles of ordnance for the Armed Serv- ices. Respondent annually purchases raw materials valued in excess of $700,000 which are shipped to it from points outside the Commonwealth of Pennsylvania and annually manufactures and sells products valued in excess of $5,000,000 which it distributes to points outside the Commonwealth of Pennsylvania. Respondent admits that it is engaged in commerce within the meaning of the National Labor Relations Act. If. 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. The discharge of Harry A. Snyder 1. The circumstances surrounding Snyder's discharge Harry A. Snyder worked for respondent most of the time from 1913 to 1924 2 when he voluntarily left respondent's employ not to return until December 22, 1941, at which time he was employed in respondent's inspection department. After six months Snyder requested a transfer to Department 2 under Foreman Behney, which request was granted after appi oval by Behney and Superin- tendent Kaul. He worked in Department 2 as a machinist until his discharge February 8, 1945. During the summer of 1944 Snyder joined the Union which was then engaged in organizing the foundry department. This department, with 2 Wyomissing is a borough of Reading, Pennsylvania. 2 His periods of employment were as follows : March 17, 1913 to November 28, 1917; December 11, 1917 to February 23, 1918; June 11, 1919 to February 20, 1920; March 9, 1920 to December 12, 1924. TEXTILE MACHINE WORKS 791 300 employees, is separated from the machine shop with its 2400 employees. The Union filed a petition with the Board for an election among the foundry workers, which after hearing was denied on the ground that the appropriate unit was not the foundry but the foundry and the machine shop together.4 Snyder became a volunteer organizer for the Union in the machine shop, and during December 1944 and January 1945 passed out union application cards, obtained signatures thereto, carried cards with him, had cards in his open tool box for employees to take and distribute or sign, had assistants obtaining sig- natures and collecting signed cards and returning them to him for delivery or mailing to union headquarters." In the month or so prior to February 8, 1945, these activities of Snyder were occurring coincidental with the union drive to expand its organization to the machine shop, which drive reached its height in January 1945. In December 1044 the foundry employees struck for a short time and from January 15 to January 22, 1945, the foundry was closed down by a strike which resulted in benefits to foundry employees. During the same period handbills were often distributed by the Union to machine shop employees. Two of these handbills were posted on the bulletin board in Department 2 by Snyder and were torn down by Foreman Adam Behney. The last occasion was but a week before Snyder's discharge, when Behney followed Snyder to the bulletin board, saw him post the handbill and immediately tore it down 4 Every two weeks during December and January at the Lone Star Athletic Club the Union held a meeting of foundry employees which Snyder attended and at such a meeting on either January 19 during the foundry employees' strike, or Janu- ary 26 immediately after the strike, Foreman John Gross saw Snyder and re- marked about it later to his employees, calling Snyder an agitator. During the same period Assistant Foreman Kantner, while "setting up" Snyder's work told him that "Anyone who joins the Union is a damn fool" and when Snyder replied "Oh I don't know" Kantner said (paraphrased to avoid obscene lan- guage ) "I got a bad deal by belonging to the union the last time." 7 Despite all the union activity occurring, and despite the fact that Snyder's activities were noted by three supervisors, the superintendent and two of his assistants denied knowing that Snyder belonged to or was active on behalf of the Union. Yet a day or so before Snyder's discharge he was "discussed" by the assistant super- intendents and the superintendent. The discussion, Superintendent Kaul testi- fied, was about "Mr. Snyder's continuolts violation of the no-smoking rule and during the course of conversation other violations [by him] were naturally dis- cussed." The "other violations" discussed at this meeting, according to Mr. Kaul, were Snyder's reporting to work intoxicated once in 1942, and the fact that he hadn't worked on Sundays though most employees did and that he wasn't "a good employee." Respondent did not attempt to explain why the discussion occurred at this time. 4 Textile Machine Works, Inc., 58 N. L. R. B. 549. ' Kilpatrick, an employee called by the Board but not a union member, stated the union activities around Snyder's work bench "was talked about." 6Behney denied seeing Snyder post the handbill, denied knowing it was a union hand- bill, denied knowing anything abort its contents, and testified that without reading the handbill he knew it was not a "proper" document to be posted although church notices, letters from servicemen, etc., were allowed and would have to be read before their propriety could be determined. His denials are not credited by the undersigned. ' Kantner denied making these statements. His animus against the Union was obvious from his attitude while on the witness stand and he admitted that he had been forced to quit his job by the 1919 steel strike and seek other employment and that his brother in 1919 went on strike and was refused strike benefits by the union involved, and was so bitter about the matter he still preserved the letter denying benefits. In view of these facts it is logical that Kantner in substance at least made the remarks quoted and his denial is not credited by the undersigned. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Kaul's knowledge of Snyder's smoking was based, he testified, on a state- ment made by Assistant Superintendent Smith that 3 months previously he "suspected" Snyder of smoking and cautioned him, and by a statement by Assistant Superintendent Kline that 6 months previously he "suspected" Snyder of smoking and warned him.' Yet the purpose of this discussion, Mr. Kaul testi- fied, was "to decide whether it was desirable to continue with him [Snyder]." Mr. Raul then further testified that the decision reached after this discussion was to discharge Snyder and that the "consensus of opinion" reached at this discussion was that Snyder "was not a desirable employee." However, he then said he didn't recall whether he had decided to discharge Snyder or not at that meeting and finally, on further questioning, he contradicted himself en- tirely and said that it was decided not to discharge Snyder then, There was no explanation given as to why with over 2,000 employees in its machine shop 1 employee who at that time had committeed no overt act, aside from his union activities to call himself to respondent's attention, was singled out for a discussion of his work record and rule violations with the purpose of deciding whether his employment should be terminated. It is therefore reason- able to draw the inference and the undersigned finds that after 2 paralyzing strikes in the foundry and the spread of union organization in the machine shop coupled with Snyder's open and extensive organizing activities in the machine shop, that Snyder's union activities were known not only to the foremen but to Superintendent Raul and that the discussion in the superintendent's office was for the purpose of scrutinizing Snyder's record because of his union activities. Whether it was decided at this time to discharge Snyder cannot be determined as Mr. Raul was the only witness to testify about this meeting. Kaul was an evasive, arrogant, and wholly unconvincing witness who baldly contradicted himself without explanation. Yet it is obvious from his testimony that from that meeting on Snyder's hold on his job was precarious because of his union activities. A day or so later Snyder furnished respondent an excuse for dis- charging him. On February 8, 1945, Charles Epting, chief of the plant police force, caught Snyder smoking and telephoned the fact to the superintendent's office, and told Snyder to report to the employment office.' Snyder told Fore- man Behney what had occurred. Behney said nothing to Snyder but he testified that although he hadn't known and hadn't reported Snyder's union activities yet when Snyder told him about Epting's ordering him to the employment office he (Behney) "knew Snyder would be discharged" although he admitted he never knew of any other employee being discharged for smoking. Snyder on arriving at the employment office was discharged by Employment Manager David Fleischmann, who had just been ordered by Superintendent Raul over the telephone to discharge Snyder and never rehire him. Fleischmann did not question this order although he usually discussed the discipline to accord em- ployees for infractions of rules with Mr. Raul and although the normal and customary penalty for smoking as found hereafter was a "final" warning or a 5-day lay-off and although as far as the personnel records were concerned Snyder had never before been disciplined in any manner. Fleischmann, in fact, told 8 Both Smith and Kline testified that they had never seen Snyder smoking. Kline told Behney he suspected Snyder of smoking and Behney once told a group of employees, in- cluding Snyder, to cut out smoking and once warned Snyder alone against smoking while Assistant Foreman Kantner testified he saw Snyder smoking several times and reported it only to Behney. Behney never reported any of this to his superior nor to anyone else so neither Behney 's nor Kantner's knowledge could have been known by Superintendent Kaul or the assistant superintendents. Epting did not know Snyder and merely reported his clock number to the superintend- ent's office where the number was checked and his Identity determined. TEXTILE MACHINE WORKS 793 Snyder, "I guess we'll have to let you go. I don't like to do it but I got orders from higher ups." Snyder on returning to his department saw Assistant Super- intendent Smith, an old friend,10 and told him what had happened. Smith, in an apparent attempt to alleviate the blow, told Snyder he was but the first of a number to be discharged in order to stop smoking. Snyder asked about the wide- spread smoking in the toilet to which Smith replied, "We are going to break that all up."" As shown hereafter only the customary penalties were inflicted when an employee was detected smoking after Snyder's discharge as well as before. 2. Respondent's defenses Respondent averred in its answer that "Harry A. Snyder was disrespectful and insubordinate and was an unsatisfactory employee . The respondent justly terminated his employment for proper cause when he continued to violate com- pany rules after warning was given him." Respondent offered no proof that Snyder was disrespectful or insubordinate. The record fails to show that Snyder was warned in the 4 years of his last employment with respondent that he was unsatisfactory in any manner." He was sent home for being drunk once in 1942 but was otherwise not disciplined . Thus respondent's defenses boil down to its counsel's statement in oral argument before the Trial Examiner as follows : "[This] is a clear and simple case of a man flagrantly violating the rules of the company [against smoking] which were enforced against other employees equally and in the same degree as they were enforced insofar as he was con- cerned, and that he happened to be the most flagrant of the violators." (a) Respondent's rule regarding smoking For years respondent has had a no-smoking rule in force in the plant. This rule, published as Rule 16 in the "Employee Handbook " ( which is given each employee when he is hired) under the heading "Factory Regulations" reads: "Smoking on the premises not permitted during working hours." The evidence is clear that smoking was permitted in the plant at the employees ' machines or elsewhere prior to the commencement of work, during the regular lunch hour and immediately after work. There was testimony that at the beginning of the war smoking was prohibited in the plant at any time but this prohibition only lasted for approximately 6 months when the rule was relaxed to be as it appears above. Respondent's witnesses testified that respondent was constantly under pressure from its underwriters and the "Army & Navy" to enforce the rule. This, however, is not borne out by the record. The underwriter and apparently the "Army & Navy" wanted the rule changed so it would be effective . No employee of the underwriter, Associated Factory Mutual Fire Insurance Companies, was called as a witness but one letter dated January 2, 1942 and two inspectors' reports dated "March 4, 5, 1943" and "August 9, 10, 1943." respectively , all pre- pared by the underwriter , were introduced in evidence and prove conclusively that the underwriter, while concerned with smoking, among other fire hazards," did not agree with respondent on the efficacy of its no -smoking rule . In its "May 4, 5, 1943" report the underwriter states "Restricted smoking areas should be 10 They served their apprenticeship together. 11 Apparently mollified Snyder then said "well I guess I got what was coming to me." 11 Smith did testify that during the 4 years of Snyder's last employment he had "cau- tioned" Snyder about not expending enough effort in his work. 13 Over 50 recommendations were made in these reports regarding elimination of fire hazards other than smoking . The record shows that a few of these recommendations were followed. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provided and properly supervised at all times. Practice of smoking in manu- facturing areas during non-working periods should be discontinued." This rec- ommendation was ignored. Again, in its report dated "August 9, 10, 1943" the underwriter stated "Restricted smoking areas should be provided and properly supervised at all times." Again this recommendation was ignored. The letter of the underwriter dated January 2, 1942, composed of eight paragraphs on var- ious fire hazards, one of which stated that no-smoking regulations should be en- forced was written during the period when respondent banned all smoking on the premises. Vague references by respondent's witnesses to "Army and Navy" pressure to enforce this no-smoking rule is evidenced only by one letter from the Army Third Service Command pertaining to all factories devoted to war work which again, among other recommendations regarding fire hazards, recommends restricted smoking areas. It is clear and the undersigned finds that respondent declined to follow the recommendations that the rule be changed to make it effec- tual" (b) Widespread disregard of the rule The record shows that at least three notices were posted by respondent dur- ing the war period regarding smoking. One, undated, but posted in 1942, an- nounced the relaxation of the complete ban against smoking and stating smok- ing during non-working hours would be permitted. One of the other notices dated July 6, 1943, stated, inter elia, "It now appears that our factory regu- lations pertaining to smoking are completely ignored by certain employees who smoke whenever they desire" and advised employees if they violated the regulation they "must be prepared to face the penalty." The other notice dated November 27, 1944, stated, "In order to curb the flagrant violations" of the smok- ing regulations foremen were instructed to send employees detected smoking to the Employment Office for discipline.'b That respondent's rule against smoking during working hours was openly breached is obvious from the wording of the notices referred to above and from the testimony adduced at the hearing. Kanter, an assistant foreman, called by respondent, testified that all during the war lie saw employees smoking in the toilets during working hours but paid no attention to it because they were not from his department. The Employment Manager testified "there was a good deal of disregarding the rule of smoking." 16 Snyder and Kilpatrick, Called by the Board, testified that they and others smoked during working hours in groups usually after eating a sandwich or piece of fruit at 9 :00 a. in. or 3 p. m." Supervisors and Army and Navy personnel could smoke anywhere at any time 1' One of the respondent's witnesses testified that it had no room for restricted areas and for that reason did not follow tha underwriter' s recommendations. The testimony showed, however, that the locker rooms and toilets would easily have been suitable "areas" for smoking. 15 Respondent's witnesses testified that these notices were posted because of "pressure" exerted by its underwriter. This is not conceivable in view of the underwriter' s own re- ports which recommended that the rule be entirely changed. 19 Respondent' s witnesses further showed their disregard for the recommendations of outsiders by testifying that "sneak smoking" was dangerous but that "open" smoking was not.'' These "extra" lunches were enjoyed by most employees every day. It was testified by respondent's witnesses that this was allowed and that machines could be shut down for this purpose. This is despite the fact that such lunches violated Rule 13 of the "Factory Regulations" which rule like Rule 16 pertaining to smoking was covered by Rule 21 which reads: "The shop regulations are considered a part of the contract with every person in our employ. Workers disregarding or violating these rules or any regulations, notices, or orders posted by the management on the bulletin boards or elsewhere on the premises will have to bear the consequences." TEXTILE MACHINE WORKS 795 in the plant and this could not but reduce, in the employees' minds, the neces- sity for this rule and thus lead to its quite open violation. (c) Respondent's "equal enforcement of the rule against all employees" Despite the widespread violation of the regulation, respondent seldom dis- ciplined anyone for smoking. Respondent was adequately staffed with fore- men and assistant foremen and uniformed guards patrolled regular routes throughout the plant,' all of whom were supposed to report violations of all factory regulations. Respondent introduced in evidence all personnel records of employees disciplined for smoking from 1938 to the date of the hearing in February 1946 and some records of employees disciplined for infractions of other regulations. Respondent's Employment Manager testified that prior to the war violators of the no-smoking rule were summarily discharged upon de- tection and. referred to employment records of two employees so disciplined in 1938, four in 1939 and one in May 1941.'° The personnel records disclosed that although there were 2,400 employees in the Machine Shop and despite the widespread violations of the no-smoking rule as shown above, only 6 employees Y0 (aside from Snyder) were disciplined for smoking in the 4-year period from December 1941 to February 1946. In Sep- tember 1943 an employee was "sent home 5 days by W. Smith for smoking". In July 1944 1 employee was "found smoking in the machine shop--last warning." On February 23, 1945, 2 weeks after Snyder's discharge, an employee was "Send [sic] home for 5 days for smoking" and in May 1945 another employee was "warned about smoking in the toilet" while on November 8, 1945, 2 employees were given "Final warning about smoking during working hours." All 6 of these employees are still working for respondent.' It is obvious that the penal- ties imposed on these 6 employees, namely, a warning or a 5-day lay-off were the customary penalties imposed during the wartime period. J. Leroy Kline, as- sistant superintendent, testified that for a "flagrant" violation which he explained to be immediately after one of the no-smoking notices was posted, employees were laid off for 5 days and that ordinarily after continued warnings he would refer a violator to the Employment Office "for discipline." Adam Behney, foreman 'g With 90 employees in 1945 in one room in Dept. 2 where Snyder was employed, re- spondent had a foreman, 3 assistant foremen and 2night foremen. '9 Although not particularly pertinent to the issues herein inasmuch as it was prior to the war when respondent admitted different circumstances existed, an examination of these records disclosed that four of these employees were discharged for smoking during working hours and other reasons, while one was discharged for smoking after having been pre- viously laid off for the same reason. Only one of the six was discharged only because of smoking. 20 One other employee , James Haddow, was discharged for several reasons in November 1943, namely, "Disorderly conduct, smoking in toilet and intoxicated." Under "addi- tional information" on his employment card was the notation "Accused of smoking during working hours in the shop and toilet. Was warned several times about it. Foreman de- cided to transfer him. Employee dissatisfied with decision and decided to quit. Employee denied above accusations and accused foreman of disliking him." Obviously smoking was not the motivating reason for Haddow's discharge. 21 The personnel records introduced by respondent regarding disciplining of employees for infractions of other factory regulations involved four employees and the punishment and infraction in each case was as follows : 1. "4-4-45 Warned about fighting during working hours" 2. "11-6-45 Final warning about reporting to work intoxicated" 3. "Warned about absence without report" 4. "Warned about absences on Mondays without being sick" This bears out Fleischmann 's testimony that in all cases employees were given a final warning before discharge. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Dept. 2, cautioned 16 or 20 men about smoking during the war but never laid a man off or sent anyone to the Employment Office because of his smoking.`' David Fleischmann, Employment Manager, testified that during the war in all cases of rule violations "We had to warn them [the employees] because we needed the help" and that in all violations of rules such as intoxication, smoking, absence without notice, etc., that were reported to him he called "the man in and gave him his final warning." Walter S. Smith, assistant superintendent, testified that during the war "I saw several fellows sneak a smoke." Upon being asked what he did about it he testified "I sent a recommendation up to the Employment Office to give them five days to think it over." The undersigned finds that ordinarily whoever caught an employee smoking warned him but in the extreme cases when the Employment Office was notified of violations of the no-smoking rule the customary "discipline" administered was either a "final" warning or a 5-day lay-off. 3. Concluding findings as to Snyder's discharge The record affirmatively shows that Snyder's discharge was not considered during his 4 years' employment until a day or so previous to February 8, 1945; that no discussion as to discharging him took place in 1942 when he was sent home for drunkenness nor at either of the occasions 3 and 6 months previous to February 1945 when Assistant Superintendents Smith and Kline, respectively, had "suspected" him of smoking. Whether to discharge him or not was dis- cussed shortly prior to February 8 when the Union had secured benefits for the foundry employees through striking and when it was vigorously expanding its organization to the machine shop and while Snyder was leading the campaign which reached its height in January 1945. Then Snyder's faults were thoroughly discussed and when on February 8 he was caught the respondent struck im- mediately and harshly. All other employees received the customary penalty of a warning or 5-day lay-off for violation of the smoking rule (or for intoxication or fighting) but not Snyder; he, was discharged summarily and was never to be hired again despite respondent's manpower needs." It is not an issue whether respondent's rule about smoking was reasonable or unreasonable or whether Snyder received the customary penalty for an in- fraction of the rules or more severe penalty. The only issue with which the undersigned is concerned is whether Snyder was discharged because of his union activity and whether respondent would have discharged him had he not been leading the union drive in the machine shop. Clearly, Snyder's in- fractions of the rules 3 and 6 months previously did not move the respondent to consider his discharge a day or so prior to February 8. Yet at that time his discharge was clearly considered by respondent. Accordingly it is obvious that his discharge was imminent and his smoking on February 8 served as the needed pretext not as the motivating factor. From all the evidence the undersigned finds that Snyder was discharged because of his activities in behalf of the Union as a means of forestalling the spread of union organization to the machine shop, 4 to discourage membership in the Union. 22 Behney also testified that in case of "good" employees "certain things [ such as smok- ing] would be overlooked." n When Snyder was discharged in February 1945 respondent had a "top priority" with United States Employment Service and during the first 3 months of 1945 hired some 200 employees. There was some testimony that most of these were unskilled workers and that some of the skilled work Snyder and others were doing was becoming less urgent. How- ever, Snyder could do unskilled as well as skilled work and there was no showing that respondent did not still need skilled workers. 24 The Board in Matter of Textile Machine Works 65 N. L. it. B. 1030, found that this campaign to organize the machine shop did fail. TEXTILE MACHINE WORKS IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE 797 The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. By discharging Harry A. Snyder because of his activities on behalf of the Union respondent utilized the most effective form of intimidation possible and one which cannot be more violative of the Act 2' Although the evidence adduced showed that statements made in direct violation of Section 8 (1) of the Act occurred in only one instance the illegal conduct shown by the discharge of Snyder at the height of the Union's organizational campaign in the machine shop discloses a purpose to defeat self-organization and its objects among its em- ployees. The deprivation of a person 's employment as a reprisal for his union activities strikes not only at that employee's livelihood but is notice to all em- ployees that respondent is willing to shatter their job security if they join with others in an attempt to attain the privileges afforded them by law. Such extreme disregard of fundamental rights now guarded by statute convinces the under- signed that the unfair labor practices found are persuasively related to the other unfair labor practices hereinafter proscribed and that danger of their commission in the future is to be anticipated from respondent's conduct herein set forth 26 The deterrent purposes of the Act will be defeated if the order is not as com- prehensive as the threat. Limiting the order to the particular violations found herein would encourage the respondent in finding other and more subtle means of achieving its demonstrated purpose of defeating its employees in the exercise of their rights to self-organization for the purpose of collective bargaining. In order therefore to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act it is recommended that respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. It will also be recommended that respondent make Harry A. Snyder whole for losses incurred because of the respondent's discrimination against him by pay- ment to him of a sum of money equal to that which he would normally have earned from February 8, 1945, the date of the discriminatory discharge, to the date of respondent's offer of reinstatement less his net earnings, during the said period Y4 25 N. L. R. B. v. Automotive Maintenance Machinery Co., 116 F. ( 2d) 350 (C. C. A. 7) ; N. L. R. B. Y. Entwistle Manufacturing Co., 120 F. (2d) 532 (C. C. A. 4). a0 See N. L. R. B. v . Express Publishing Company, 312 it. S. 426, and May Department Stores, 326 U. S. 376. 2' By "net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica. Lumber and Sawmill Workers Union, Local 2590, 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. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : 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 interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Harry A. Snyder, thereby discouraging membership in the United Steelworkers of Amer- ica, C. I. 0., the respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (3) 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. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, Textile Machine Works, Wyomissing, Pennsylvania, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Steelworkers of America, C. I. 0., or any other labor organization of its employees, by discharging or refusing to rein- state any of its employees, or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of their employ- ment ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form, join or assist United Steelworkers of America, C. I. 0., or any other labor organization, to bar- gain 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 ef- fectuate the policies of the Act : (a) Offer Harry A. Snyder immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges ; (b) Make whole Harry A. Snyder for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages during the period from February 8, 1945, the date of his discharge, to the date of the respondent's offer of reinstatement, less his net earnings during such period ; (c) Post at its plant at Wyomissing, Pennsylvania, copies of the notice at- tached hereto, marked "Appendix A." Copies of the said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- TEXTILE MACHINE WORKS 799 tomarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) File with the Regional Director for the Fourth Region on or before ten (10) days from the receipt of this Intermediate Report, a report in writing setting forth in detail the manner and form in which the respondent has complied with the foregoing recommendations. It is further recommended that, unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies said Regional Direc- tor in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the Na- tional Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations file with the Board, Rochanibeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Interme6liate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing within ten (10) days from the date of the order transferring the case to the Board. T. B. SMOOT, Trial Examiner. Dated March 5, 1946. 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 the 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 col- lective bargaining or other mutual aid or protection. We will offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Harry A. Snyder 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 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 organizatiop. TEXTILE MACHINE WORKS, Employer. Dated-------------------- By ------------ ---------------- (Representative) (Title) NOTE.-Any of the above-named employees presently serving in the Armed Forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.