Wilson Foundry and Machine Co.

In the Matter of WILSON FOUNDRY AND MACHINE COMPANY and FORE- MAN'S ASSOCIATION OF AMERICA Case No. 7-C-1440.-Decided August 26, 194.6 Mr. David Citrin, for the Board. Mr. Leonard A. Keller, of Detroit, Mich., for the respondent. Mr. William Valiance, of Detroit, Mich., for the Union. Mr. Julius Topoi , of counsel to the Board. DECISION AND ORDER On May 7, 1946, Trial Examiner Robert M. Gates issued his Inter- mediate Report in the above-entitled proceeding, finding that the re- spondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error-was committed. • The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the respondent's exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following addition and modification : 1. At the hearing before the Trial Examiner, the respondent made application for a subpoena daces tecwm directed to an official of the Union, requiring production of any documents showing the Union's affiliation with, or control, assistance or encouragement by other labor organizations admitting rank and file employees to membership. The Trial Examiner denied the application, and the respondent, in ac- cordance with the Board's Rules and Regulations, requested leave to file an appeal directly with the Board. The Board, in effect, then reserved ruling on this matter. We have again considered the re- spondent's application in connection with the entire record of the case, and we are of the opinion that, under the principles enunciated 70 N. L. R. B., No. 42. 557 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the Jones cfi Laughlin case,' the evidence sought by the respondent is immaterial and irrelevant to any issue herein. We, accordingly, sustain the Trial Examiner's ruling and hereby deny the respondent's application for the requested' subpoena duces tecum.2 2. The Trial Examiner has found that the respondent, by stating that in the event of organization by its foremen the respondent probably "would have another step of supervision between the fore- men and management," threatened its foremen with "loss of authority and prestige" in violation of the Act. It is not clear from the record whether the suggested change in the respondent's supervisory hier- archy would have substantially altered the working conditions of the foremen or otherwise impaired their supervisory status. Under the circumstances of this case, we are unable to find the statement to be violative of the Act and we, accordingly, reverse-the Trial Examiner in this respect. 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, Wilson Foundry and Ma- chine Company, Pontiac, Michigan, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Foreman's Association of Amer- ica, or any other labor.organization, by discharging any of its super- visory employees or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its supervisory employees in the exercise of the right to self -organi-, zation, to form labor organizations, to join or,assist Foreman's As- sociation of America, or any other labor organization, to bargain collectively through, representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargain- ing, 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), Upon application by Ronald C. Hallenbeck, within ninety (90) days after his discharge from the armed forces of the United States, 'Matter of Jones & Laughlin Steel 'Corporation, Vesta-Shannopin Coal Dtioision, 66 N. L R. B 386. ' For similar reasons, we affirm other rulings by the Trial Examiner rejecting certain exhibits offered by the respondent to show cooperation between the Union and other labor organizations admitting to membership rank and file employees. WILSON FOUNDRY AND MACHINE COMPANY 559 offer him reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privi- leges; (b) Make whole Ronald C. Hallenbeck for any loss of pay he has suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned, together with vacation pay; if any were due him, during the periods (1) from April 24, 1945, the date of the respondent's discrimination against him, to August 2, 1945, the date of his.entry into the armed forces of the United States," and (2) from a date five (5) days after his timely application -for reinstatement, if any, to'tile date of the offer of reinstatement by the respondent, less his net earnings during these periods; (c) Post at its plant in Pontiac, Michigan, copies of the notice at- tached, to the Intermediate Report herein, marked "Appendix A." 4 Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the respondent's rep- resentative, be posted by the respondent immeSliately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the re- spondent to insure that said notices are not altered, defaced, or covered by any other material; ' _ . (d) Notify the Regional Director for the Seventh Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. GERARD D. REILLY, dissenting : I cannot concur in the decision reached by my colleagues. Re- spondent made application for a subpoena daces tecuns directed to an official of the Union requiring the production of any documents show- ing affiliation with, or control, assistance or encouragement by other labor organizations admitting rank and file employees to membership. I would remand this case for further hearing to take this evidence. If the respondent could show a connection between the Union and rank and file unions admitting to membership rank and file employees, the respondent would not only be justified in discharging employee Hal- lenbeck but might be obliged to do so in order to preserve its neutrality. 3 This sum shall be paid to Hallenbeck immediately. * This notice, however, shall be, and hereby -is, amended by substituting the words "A DECISION AND ORDER" in lieu of the words "THE RECOMMENDATIONS OF A TRIAL EXAMINER" appearing in, the first paragraph, and by deleting the entire NOTE at the bottom and substituting in lieu thereof the following . NOTE) -If the above-named employee is presently serving in the armed forces of the United States he will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. _ 560 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD INTERMEDIATE REPORT I David Citrin, Esq., for the Board. Leonard A. Keller, Esq., of Detroit, Mich., for the respondent. Mr. William Valiance, of Detroit, Mich., for the Union STATEMENT OF THE CASE Upon a charge duly filed by' Foreman's Association of America, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Seventh Region (Detroit, Michigan), issued its com- plaint dated November 21, 1945, against Wilson Foundry and Machine Company, herein called the respondent, alleging that respondent had engaged in and is engaging in'unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3), and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notices of hearing were duly served upon the respondent and the Union. With respect to unfair labor practices the complaint- alleged in substance that the respondent: (1) on or about April 24, 1945, discharged and thereafter re- fused to reinstate Ronald C. Hallenbeck because he had joined and assisted the Union and engaged in other concerted activities for purposes of collective'bar- gaining and other mutual aid and protection; and (2) from on or about April 16, 1945, interrogated supervisory employees concerning affiliation with and activities on behalf of the Union, advising them to refrain from joining or assist- ing the Union or their duties would be altered to inferior rank and authority as respondent was opposed to the organization of its supervisory employees in the Union. On December 11, respondent filed an answer admitting the facts alleged in the complaint relating to the interstate character of, its business; that it had discussed with certain supervisory employees the matter of union organization by them, that it was respondent's opinion that such organization would interfere with proper discharge of their supervisory duties, and that respondent -would not voluntarily recognize the Union of supervisory employees, but denying that it had engaged in or was engaging in the alleged unfair labor practices. , The respondent also admitted the discharge of Hallenbeck, but explained that it was for good cause, namely, his inability and refusal to work effectively with and under certain other supervisory officials. Pursuant to notice, a hearing was held in Detroit, Michigan, on December 11, 12, and 17, 1945 and January 15, 16, and 17, 1946, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by a repre- sentative and participated in the hearing. Full opportunity to be heard and examine and cross-examine-witnesses and to introduce evidence bearing on the issues was afforded all parties. At the close of the Board's case and at the conclusion of the hearing the respondent moved to dismiss the complaint on the grounds that the supervisory employees concerned are not,employees within the meaning of Section 2 of the Act, that continuation with the proceeding ,would not effectuate the purposes of the Act, and for lack of proof. These motions were denied.' The parties did not present oral argument at the end 1 See Soss Manufacturing, Company, et al., 56 N. L. R. B. 848; Packard Motor Car Corii- pany, 61 N. L It. B. 4 , and 64 N. L. R B. 1212; L. A . Young Spring & Wire Corporation, 65 N. L. R B 298; Edward G. Budd Manufacturing Company, 65.N. L. R. B 612; Jones & Laughlin Steel Corporation, Vesta-Shannopin Coal Division, 65 N. L. R. B. 3$6. Respondent in its answer and at the hearing conceded that the Union is a labor organ- ization within the meaning of the Act, but contended that its supervisors involved in this ,. a WILSON FOUNDRY AND MACHINE COMPANY 561 of the hearing nor were any briefs filed with the undersigned thereafter. 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 Wilson Foundry and Machine Company is a Delaware corporation. Its principal plant and its business office are located on West Wilson Avenue, in the City of Pontiac, Michigan It also has a small plant called Plant 2 on Sanford Avenue, in the City of Pontiac, Michigan. The respondent is engaged in the production of grey iron castings'for automotive parts and also in machining and assembling certain other parts of automotive equipment. Until the end of the war, it also was engaged in the production of 40 mm anti-aircraft shells and tank gun elevating mechanisms, and other tank parts. The respondent, at the time of the bearing, employed approximately 1500 persons, of whom 1250 were production workers and the balance were office and supervisory employees.- During the war, approximately 2200 persons were employed. For the fiscal year ending June 30, 1945, the respondent purchased for produc- tive use approximately $13,186,084 of raw materials and supplies, of which approximately $8,201,733 was purchased within the State of Michigan, and approximately $4,984,351 was purchased outside the State of Michigan for use in the State of Michigan. During the salve year the respondent had gross sales of approximately $24,776,950, of which approximately $14,039,916 was in sales to customers within the State of Michigan, and approximately $10,737,034 was in sales to customers outside the State of Michigan, including the United States Government and foreign countries. At the present time the respondent receives a substantial portion of its raw materials and other purchases from outside the State of Michigan, and makes a substantial portion of its sales outside the State of Michigan, the exact percentage not being available at the time of the hearing. The only plants owned by the respondent are located in the State of Michigan. II. THE ORGANIZATION INVOLVED The Foreman's Association of America is a labor organization admitting to membership employees of respondent. - III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; and the discriminatory discharge Ronald C. Hallenbeck was elected temporary president of a group of respond- ent's supervisory employees attempting to, become organized in the Union. proceeding are not employees within or entitled to protection under the Act. For the reasons stated by the Board in the above-cited cases, the undersigned rejects this contention. Respondent made application for subpoena duces tecum to be directed to an official of the Union requiring production of any documents showing affiliation with, control, assist- ance or encouragement by other labor organizations admitting rank-and-file employees to membership The application was denied by the undersigned and respondent requested the Board for permission to file an appeal directly with it in accordance with the Rules and Regulations of the Board, Article II, Section 16. The Board has notified the respondent that when and if the matter comes before it, and it appears from the entire record that such testimony is necessary and relevant to the proceeding, it will then consider ripening the hearing for this purpose 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He was discharged a week later. Many of the events about which there is evidence occurred over a period of approximately 4 months prior to the period previously mentioned and have no connection with the Union though alleged to be material in relation to the discharge of Hallenbeck. During the recent war respondent was engaged entirely or at least largely in the production of material used in the active prosecution of the war by the military and naval forces.' In this connection most or all of the contracts were initiated through the office of the Detroit Ordnance District under the War Department. The Detroit Ordnance District or DOD as it is referred to in the transcript of the proceedings made periodic- inspection of respondent's plants particularly with respect to safety conditions, or lack of them, that might... result in injury to employees of DOD acting as inspectors in the plant or might in any other way affect the prosecution of the war effort. Safety conditions were discussed with various officials of respondent and were the subject of several reports by DOD inspecting officers. One of the many complaints men- tioned in these reports and the only one with which we are here concerned related to the cleanliness of the plant or "housekeeping" as it was sometimes ,described. At this time sweepers and chip haulers (described as a very poor class of labor) who were responsible for janitor-like functions had as their immediate supervisor one John Schmidt but were under the direct supervision of Loyal C. Riley, a class A foreman in charge of building and ground main- tenance. Riley's supervision of the sweepers, however, was a comparatively subordinate part of his responsibilities and he directed the work of many additional employees such as carpenters, plumbers, steamfitters and gas men. After continued complaints and conferences in which the subject of plant housekeeping arose, Wallace O. Leonard, president and general manager of respondent, after discussion with Ferdinand N. Thiefels, respondent's master mechanic, decided to develop a new job with broadened responsibility for house- keeping and the cleanliness of the plant.' They also determined that they would offer the job to Hallenbeck. Hallenbeck had been employed by respondent since June 1942°and since March 1943 had worked in the Planning and Scheduling Department on various jobs resulting in reclassification and added responsibilities with corresponding in- creases in salary. When he entered the employ of respondent he was hired at the rate of $160 a month plus overtime ; this was increased to $175 a month plus overtime when he was transferred to the above-mentioned department. There- after lie had several increases in salary and was being paid at the rate of $275 a month with no overtime at the time in question. In December of 1944 he was classified as a production clerk and his duties required, frequent trips throughout the plant and contact with the foremen of the several departments therein. He was dissatisfied with the salary he was being paid and notified his superior, one Rand, that he intended to look for another job Due to the pressure of business, Rand apparently did nothing about finding a successor. On or about December 27, 1944, Hallenbeck became ill which necessitated his going to the hospital, apparently without notifying respondent.' Several days -thereafter Leonard's secretary called' Hallenbeck at his home asking if he had quit. He told her, "not necessarily," that he had been sick; she then informed him that Leonard wanted to talk with him for the purpose of offering him one of two jobs then open. After an absence of about 7 days Hallenbeck returned to work 2 All parties agree that respondent has had an agreement with the UAW-CIO covering its production employees since 1937. 8 For example there had been complaints about oil and dirt on the floors in the machine shop and elsewhere as well as metal scrap and similar hazardous material on the floors. WILSON FOUNDRY AND MACHINE COMPANY 563 and shortly thereafter had a conversation with Leonard during which Leonard told him of the two jobs and urged him to take the job relating to housekeeping mentioned above, with salary of $300 a month plus 11/L,, time overtime pay. Leonard said he did not want Hallenbeck to quit and that he thought Hallenbeck could do a good job there as he got along with all of the foremen. Hallenbeck testified he told Leonard that he was not sure as he had some difficulty in getting along with Riley, but that Leonard said lie would not be working for Riley but_ directly for Thiefels. Leonard also suggested that Hallenbeck talk with R. W. Wenzell, the plant manager, to get some suggestions for carrying_ out the job. Hallenbeck decided to take the job and thereafter did talk with Wenzell. He was responsible for supervising the sweepers and chip haulers, and had as many as 53 men working under him. Hallenbeck's transfer to his new job which was under the master mechanic's department was dated January 9, 1945, to become effective the following day, and according to respondent's personnel records he was classified as an assistant foreman. which is-frequently referred to as a class B foreman, although Wenzell said that his job title would be Sanitation Engineer and he is so referred to in a DOD report on a safety conference he attended .4 Several witnesses 5 testified that during his first 2 weeks on the job Hallenbeck's supervision resulted in considerable improvement around the plant, but they were virtually unanimous in stating that this level of improvement was not maintained. thereafter Hallenbeck testified that after he had been on the job about 2 weeks he accompanied Wenzell to a meeting of the shop foremen where Wenzell told them that Hallenbeck "was working with Mr. Leonard and they would have to cooperate with him." In addition to this a memorandum dated January 22, 1945. was sent to all foremen and superintendents announcing Hallenbeck's ap- pointment and duties, stating that he reported to Riley and the master mechanic's division and requesting their cooperation in improving orderliness and cleanliness in the plant. This was signed by Thiefels and Wenzell. Hallenbeck testified that he did not see a copy of this although he understood it had been distributed. Thiefels testified that a copy was sent to Hallenbeck. - Hallenbeck's version of the situation is that he was unable to obtain cooper- ation from Riley both in finding out about work to be done by himself and with respect-to 'work for which Riley was responsible, chiefly removal of discarded heavy metal building material and equipment from operating areas to proper storage or scrap. It was customary among the supervisory employees of respondent to issue routine requests to the person considered responsible for cer- tain duties when something was observed which seemed to require calling it to the attention of the person responsible. Such routine request is known as an AVO, short for "avoid verbal orders." Hallenbeck issued a number of AVOs addressed to Riley. Riley undoubtedly complied with some of these requests but definitely did not with others. Sometime during the latter part of February or early March of 1945 Hallenbeck and John Gillespie, then classified as safety engineer, prepared a series of "work orders"' several of which were directed to Riley. Hallenbeck said this was done because his AVOs to Riley had, not been effective. The work orders were signed by Thiefels and Hallenbeck delivered them to Riley ,who became angry and took them to John L. Hopkins, then assist- ant to the plant engineer. Riley and Hopkins then went to see Thiefels who 4 The description of the events discussed above is based primarily upon the testimony of Hallenbeck , whom the undersigned finds to be a credible witness. i Particularly Leonard, Thiefels, and Riley. "The work order is an accounting device, the form specifying the job to be done and to what account it is to he charged . It is not used for normal routine functions but rather for some special or major construction , maintenance or salvage job 712344-47-vol. 70-37 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreed that the work orders should be disregarded and destroyed . Hallenbeck was present at this conference and was told that he was subordinate to and should report to Riley and not go over Riley's head to Hopkins and Thiefels. According to Jack White, then chief of plant protection, after Hallenbeck came out of this meeting he told White that he had expected to be discharged. -Hallenbeck testified that about the first of March 1945 he asked Leonard to take him off the job, that Leonard wanted to know why and Hallenbeck told him it was because Riley would not cooperate with him. He further testified that Leonard said he thought Hallenbeck was doing a good job, that he, Leonard, would have a talk with Riley. Leonard did not testify concerning this conver- sation though he denied that another incident occurred which Hallenbeck in his testimony placed at about the same time. He merely stated that he did not recall additional conversations but did not deny that they might have taken place. The undersigned credits Hallenbeck's testimony and finds that he did seek to be relieved of the job due to difficulties with Riley. On a list dated March 24, 1945, Hallenbeck's name was included among those of 126 employees for whom the respondent requested deferment from induction. The list indicates that employment as of January 1, 1945, less than-3 months before, the total employment of respondent had been 2180. The list was sub- mitted to the- War Production Board which in turn certified to the appropriate Selective Service officials the names of those whom it considered necessary to be deferred. This practice had been inaugurated a short time before. The instructions in effect at the time respondent submitted the list were that the local War Production Board officials would certify no more than 15 percent of the list submitted by respondent and that the remainder would be considered by the Washington headquarters of that organization. Respondent's personnel manager, Thorland H. Peck, asserted that he did not know of and that respond- ent did not comply with an additional instruction which would require the respondent to list employees in order, the most important first and the least important last. Instead Peck claims they listed first the 18 or 19 names which the 15 percenf rule would allow the local offices to certify and that the remain- ingnumber in the 126 were listed haphazardly. He also stated that the list included any supervisory employee who might be subject to. induction and in a draft classification that would otherwise make him available. To support its request for deferment respondent was required to submit individual affida- vits for each employee giving its reasons for considering deferment to be necessary. This was done with respect to Hallenbeck although a copy was ndt introduced in evidence. As a result Hallenbeck was given a draft classification which resulted in deferment for 6 months. On Sunday, April 15, 1945, a group of respondent's supervisory employees met to discuss the matter of self-organization and affiliation with the Union. As a result of this preliminary meeting which had been held in the offices of the Bald- win Rubber Company Chapter of the Union, a meeting was called for the following Tuesday evening, April 17. This meeting was held in a vacant storeroom, ap- parently adjacent to an enterprise referred to in the testimony as the Top Hat- ters Club, and the meeting has been characterized in the evidence as the one held at that Club, although it apparently was not held in space occupied by the Club itself. Several representatives of the Union attended the meeting and discussed prior experiences of the Union. During the course of the meeting, Hallenbeck was elected temporary president and Norman Bentley was elected temporary secretary and treasurer of the group. A day or so after this meeting, Thiefels approached both Riley and Hopkins individually, asking them to fill out a termination slip for the discharge of Hal' WILSON FOUNDRY AND MACHINE COMPANY 565 lenbeck. Both men refused to do so and Thiefels said he would do it himself. Neither of the men stated his reason for refusing to comply with Thiefels' request at that time, though they did in their testimony in the hearing of this case. Both had substantially the same reason which was variously phrased and was in effect that Leonard had put Hallenbeck on the job and Leonard and Thiefels should fire him, and Hallenbeck had Leonard's backing and they did not want to go at cross purposes to the latter . Thiefels testified that he had already discussed the possible discharge with Leonard, who had made no objection , but Thiefels dill not mention this to either Hopkins or Riley. Thiefels did not make out a termi- nation slip at that time , although there is testimony that Hopkins did have one- in his desk on the same day or shortly thereafter when he told one of his assist- ants that he had a job to do but that he didn ' t want to do it. Hallenbeck was not fired that day but was about a week later. On Saturday morning, April 21, 1945 , Hopkins instructed Hallenbeck to clean out a room in the office building which constitutes the main entrance to the plant, as it was intended to move in the medical or first aid department that weekend. The testimony is not clear as to precisely what Hopkins' instructions. were. Hopkins testified he told Hallenbeck it was a "hot job" and that , in effect, it should be completed as soon as possible. Hallenbeck, on the other hand, denies that Hopkins said anything about a "hot job" and implied that a deadline of 2: 30, p. in. was established . He testified further, that the job was completed an hour and a half prior to the deadline The undersigned does not regard this as im- portant, as it is clear Hopkins did instruct Hallenbeck to have the room clean and to put _men on it immediately . Hallenbeck also testified he put eight men on the job, but when it became necessary for him to leave for a short trip to, Plant No . 2, he left his predecessor Schmidt in charge of the sweepers . The room itself was not large. Testimony indicated that it was probably about 30 by 10 feet. Shortly after the above events , Hopkins went to the room, presumably to check on workers . Instead of eight men under Foreman Schmidt" he found two men from Hallenbeck 's gang who were not making progress he considered satisfactory. Hopkins thereupon communicated with Riley , who agreed to produce additional men for the completion of the job . Two'men were thus produced and apparently the job was nearly finished by 11: 30 a. in., at least sufficient for the employees to start shifting furniture. Hallenbeck testified that he had gone to Plant 2 about 10: 30 and returned a half an hour later However, apparently he was not seen at the first aid room until approximately 12: 30. Hopkins demanded an explanation, but was not sat- isfied with the information he received . Hallenbeck testified that he had an emergency call from Plant 2 which required his presence , and also that he should. take with him 2 additional sweepers to assist with the work in Plant 2. At about 1: 30 that afternoon , Hopkins told Thiefels of the incident , saying that he was disgusted and that it was the last straw. On Monday, April 23, Thiefels told Riley that he wanted to see Hallenbeck,. but Riley did not see Hallenbeck for the remainder of the day . Accordingly, Riley left a note on the time card of Hallenbeck requesting him to report to Thiefels upon his arrival at work on Tuesday, April 24. Upon reporting for work that 'Apparently Schmidt no longer had the stains of a foreman, but was recognized to. have more responsibilities than the ordinary sweeper. There was a disproportionate amount of testimony on the point, in support of respondent's contention that Schmidt Nxas not working that day but was on a 30-day leave of absence ending April 24th. The under- signed accepts such evidence as credible and finds that Schmidt was not working on April 21, but also finds that the difference between the fact and the testimony of Hallenbeck does not discredit the testimony of the latter on other matters. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day, Hallenbeck received the notice and went directly to Thiefels' office. When the latter arrived somewhat later, be, apparently with some reluctance, informed Hallenbeck that he was being discharged. Hallenbeck asked the reasons and was informed that it was due to complaints by Hopkins and Riley that he had not been performing his work properly and that he refused to take orders from Riley. Hallenbeck then stated that lie did not mind losing his job, but that he would like to get such complaints straightened out before leaving. He asked Thiefels to call in Hopkins and Riley for that purpose. Thiefels refused and Hallenbeck went to the personnel office where he was informed that his termina- tion papers had not been received. He was requested to return the following day. He then had a conversation with Thorland H. Peck, personnel manager of the respondent, who stated that he did not know about the discharge or the reasons for it. Nevertheless, he refused to recommend Hallenbeck for a job in the shop or for, a job in the Planning and Scheduling, Department, even though Hallenbeck told;him there was an opening there and Hallenbeck had worked there for several years prior to being hired for the job he had just been holding. Hallenbeck com- plained that he thought he was being discharged because of his activities in behalf of the Union. Peck was not inclined to agree with this, but said he would investigate and subsequently did inquire of Thiefels as to the matter. Thiefels denied that such activities were connected with the discharge. Hallenbeck also called on Leonard, principally to say goodbye. Leonard told him he.was sorry, but indicated he was not inclined to intervene or interfere with the responsibilities and functions of subordinates in such a matter. On April 23, Hallenbeck had prepared and distributed notices announcing a union meeting to be held the following day. This notice was actually prepared by a clerk in the Planning and Scheduling Department, and Hallenbeck passed out copies to respondent's foremen. The meeting was held on April 24, as scheduled. The following morning, April 25, Hallenbeck reported at the plant where he was escorted by a guard to the medical department for clearance. Approximately 2 days thereafter, respondent's personnel department notified Hallenbeck's draft board that he had quit,' and shortly thereafter he was reclassified into 1A, which classification effectively prevented his obtaining satisfactory employment of the type for which he was qualified. On August 2, 1945, he was inducted into the Army, and at the time of that part of the hearing held in December, had been permitted to return from his military station for the purpose of giving testimony in this case. _ Both Hopkins' and Riley testified that they were aware of the activity con- nected with the attempted organization of the supervisory employees the day after the meeting on April 17, and that they had knowledge of the fact that Hallenbeck had been elected temporary president, and Bentley temporary secre- tary, and,treasurer. Hallenbeck testified that on the morning of April 18, while having a regular morning coffee period-with Jack White, chief of plant protection, and William R. McClure, assistant personnel manager, White questioned him about the Union and the names of employees who -had joined. White also'testi- fied that he thought Hallenbeck had spoken about union matters to McClure while having coffee. White did not admit the detailed facts contained in Hallenbeck's testimony, but admitted that he might have discussed matters concerning the Union with Hallenbeck on that day, and that he might have learned of the latter's election as much as a.week before his discharge. McClure denied being present at s Peck explained that the "quit" notice to the local draft board was sent through A clerical error. ' The respondent admitted that Hopkins as well as White and McClure who vre mentioned below were members of "top management." WILSON FOUNDRY AND MACHINE COMPANY 567 such a conversation, but his testimony lacks credibility in some respects ; in addition, the undersigned was not favorably impressed with McClure as a witness, and accordingly, his denial of being present at such a conversation is not=accepted10 White-also made inquiries as to his eligibility for membership and what advantages there would be in becoming a member. Hallenbeck also testified that he gave White a copy of the contract between the Ford Motor Company and the Union. White denied ever seeing such a contract. The under- signed considers that this conflict is inconsequential and does not undermine the veracity of either witness, hence no finding it made with respect to it n, White denied reporting any information concerning the Union that had come to him to his superiors, but admitted that he "probably spoke to McClure about it." McClure testified that he may have had discussions with Peck and White con- cerning the rumors that had come to him, and the undersigned finds that he did have such discussions with Peck and White. Leonard testified he discussed the Union with Peck. - Respondent's answer admitted discussion of the matter of union organization of its supervisory officials with certain of them, informing them of its opinion "that such organization would interfere with the proper discharge of the duties and responsibilities of supervisory officials," and that such an organization would not be recognized voluntarily. Respondent's position is further amplified in the testimony of Leonard and Peck. Peck testified, "The Company is strenuously opposed to the principle of our particular foremen forming an Association to bargain collectively for them." This position was repeated with variation by Peck and endorsed by Leonard in his testimony. Pursuant to this policy, respond- ent made it known to its supervisory employees. It had been the custom to have weekly group meetings of foremen for the purpose of discussion of their problems and their relation to problems of the top management. In connection with this, certain leaders who met with the groups, met together once a week with Peck for discussion of the matters that would be taken up in the meetings during the ensuing,week. In.oneror:more.of';these,meetings,,the,question of organization of supervisory employees was brought up by Peck. He admitted instructing group.leaders •as to the respondent's-'policy of opposition_to.selfzorganization by its supervisory employees and that it was probable, should such organization take place, that the respondent-"would have another step of supervision intervene between the foremen and management, to serve as the direct representatives of management, in the event the foremen did not consider themselves as such any "For example, he denied ever hearing about the policy of the respondent with respect to organization of its supervisory employees and its intention to impose another step of supervision between foremen and top management should effective organization be achieved. "There are a•considerable number of such contradictions in the testimony of several witnesses, some perhaps due to concern over what they may consider their own best inter- est, but many no doubt caused by a lapse of memory due to the passage of time. For example, White when recalled as a witness, slightly more than a month after his first appearance on the stand, did not recall having given certain testimony. Also indicative of this is Leonard's testimony when questioned about the testimony of another witness with respect to a certain conversation which Leonard agreed had taken place, but ques- tioned some of the details and in respect to one item stated, "I think he is mistaken. His memory probably isn't any better than mine on something that happened several months ago, because I was quite careful not to try to pry out of him anyone else's connection with the foremen's union " [Italics added ] It is clear from the record, as well as from the facts related earlier in this report, that 9 months to a year elapsed between the events with which we are concerned and the testimony of the witnesses in the hearing. It is also clear that most of the events were unimportant though some perhaps were irritating. Accordingly, the undersigned tends to accept the testimony of the witnesses in general without attempting to resolve minor inconsistencies that have little or no bearing upon' the principal issues 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD longer." - Peck did not recall the date of such discussion, but Hallenbeck who attended group meetings conducted- by the group leader who had met with Peck testified that he had been informed of the respondent's opposition. This was obviously prior to the date of his discharge. Accordingly, the undersigned finds that Peck's discussions with the group leaders on this matter occurred prior to April 25, 1945, although there may have been subsequent discussions of a similar nature.'s B. Conclusions It is apparent from all the testimony that there was a conflict of personality between Hallenbeck and Riley, between subordinate and superior" There was testimony concerning an incident in which Riley was called upon to thaw out some pipes in the Planning and Scheduling Department shortly before Hallen- beck's transfer to the job here in question. An argument between the two ensued, due to the fact that someone told Riley that Hallenbeck had turned off the steam valve or valves, which resulted in the freezing of the pipes. The fact that there was such an argument and that Hallenbeck denied turning off the valves was not disputed by any of the parties. Thereafter, Hallenbeck was selected by Leonard to undertake direct supervision of work for which Riley was responsible. Apparently there was some resentment against Hallenbeck on the part of Riley because of this. Without passing upon whether Thiefel's version that Hallenbeck was informed in the beginning that he was to work under Riley or Hallenback's version that he was not so informed until sometime thereafter, it appears that tl}ere was some friction or conflict between Riley and Hallenbeck. In any event, the respondent tolerated the conditions, whatever they may have- been, until the issue of the Union arose. It would further seem that respondent adopted a stop gap or temporary cure for the defects complained of by DOD and hoped that it would work out: Respondent's witnesses testified that there was an improvement for a short time after Hallenbeck came on the job, and the DOD report of an inspection made on February 27, indicated that the improvement was still manifest. Moreover, the successor selected to take over Hallenbeck's job after his discharge, did not improve conditions, though the "housekeeping" may have been no worse. It was respondent's acknowledged policy to transfer men back to their previous jobs when it became necessary to demote them from a supervisory position. Admittedly, most of the testimony on this point related particularly to "rank and file" employees paid on an hourly basis, rather than salaried employees, which Hallenbeck had been. Nevertheless, approximately a month before, respondent regarded men who were physically capable of doing work as being at a premium. In view of this, it is difficult to explain Peck's attitude in denying any knowledge as to the reason for the discharge and refusing to consider the request for employment of Hallenbeck elsewhere in the organization. It is respondent's contention that Hallenbeck's failure to properly supervise the cleaning of the room where it was intended to move the medical department was also the basis for the discharge of Hallenbeck, but this is difficult to accept. Both Hopkins and Riley admit that two of Hallenbeck's men were working there at the time Riley put his men on the job. It does not appear that Riley "Counsel for the Board asserted at the hearing that the demotion of Norman Bentley _ and Ruskin Finney on the day of Hallenbeck's discharge and Wayne Culver during the next month was related to or bore upon Hallenbeck's discharge and the interference, alleged. While it appears that the respondent was aware of their union activities, the undersigned is of the opinion that the matter was not fully explored and therefore makes no finding with respect to it. 12 Hallenbeck testified that he did not get along with Riley off the job either, and that their homes were next door to each other. WILSON FOUNDRY AND MACHINE COMPANY 569 remained on the job at all times to supervise his two men, and Hopkins admits that Hallenbeck might have been in and out of the room during the time the work was accomplished. Furthermore, Thiefels had made up his mind to dis- charge Hallenbeck 3 days before. His explanation for the delay in executing this intention after his subordinates had refused included the following state- ment : "I was trying to make up my mind if we could no anything with him. I liked Hallenbeck personally. He was aggressive and I thought probably we could do something with him." However, he further testified that he did not do anything to improve Hallenbeck's work or change any attitude that may have been found unsatisfactory. Instead he recognized the friction between Hallen- beck and Riley, and gives this as the reason for the discharge. Although the personnel department form which he initiated to effect the discharge gives as reasons "Work not satisfactory. Does not cooperate," Thiefels also testified that the quality of Hallenbeck's work was not the reason for his discharge. Top management of the respondent admitted it knew of Hallenbeck's election to office the day after it occurred, including both Hopkins and McClure, Peck's assistant. Riley too, knew of this. Thiefels had discussed the Possible dis- charge with Leonard, but it was not until Hallenbeck became temporary presi- dent of the Union that respondent decided to discharge him and give him no opportunity for other employment. Leonard liked him well enough to select him for the job. Thiefels testified that he liked him, and apparently many other supervisory employees did also, as indicated by his election to the office of tem- porary president. It is clear that respondent could put up with Hallenbeck, whatever his deficiencies may have been, and that it was only when he became actively associated with the Union that respondent determined to end his em- ployment. Respondent fully admits its opposition to the organization of its foremen. However, it went beyond harboring such an opinion and confining discussion concerning it to members of top management, but in addition, undertook to pass the word around through the medium of discussion with the group leaders by Peck, who in turn were expected to relay such information to the groups of foremen when the leaders conducted their own meetings. Hallenbeck indi- cated that the secretary of respondent, Paul, probably was present at one of the meetings when the matter was discussed and made similar statements. It is not contended that respondent threatened more drastic forms of discrimi- nation such as discharge ; instead, it used a more subtle threat, the threat of loss of authority and prestige. Respondent in effect was threatening to make the foremen mere straw bosses or group leaders who would not be speaking for management in connection with whatever supervisory functions they re- tained. One reason given for the attempt at organization by respondent's em- ployees was that being on a salary basis with government-imposed restrictions on overtime earnings, they were earning less than the hourly rated employees for whose supervision they were responsible. This was a wartime condition, of course. Such a threat as was made, if carried out, would strip supervisory positions of almost all vestige of desirability. That the threat was effective, in combination with the discharge of Hallenbeck, is demonstrated in the testimony of Leonard himself, who asserted that VerBeek came to his office on his own volition "and said that he had refunded the money that he had collected from prospective members of the Foremen's Union, and tore up the receipt book which he had in my presence." It is difficult to conceive of more compelling evidence of the effectiveness of respondent's campaign to prevent organization of its supervisory employees. By such conduct respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is found that respondent discharged Ronald C. Hallenbeck on April 24, 1945, and thereafter refused to reinstate him because of his union activities and thereby interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, the undersigned will iecommend that it cease and desist therefrom, and take certain affirmative action to effectuate the policies of the Act. In view of the respond- ent's threat to demote its supervisory employees or otherwise adversely affect their status representing management in its affairs with the rank and file employees because of the supervisors' self-organization and since the respond- ent's position is to continue to oppose such self-organization of its supervisors, the undersigned will recommend that the respondent cease and desist from in any manner interfering with, restraining, or coercing its supervisory employees in the exercise of the rights guaranteed in Section 7 of the Act. Also it has been found that the respondent discharged Ronald C. Hallenbeck and there- after refused to reinstate him for the reason that he joined and assisted a labor organization and engaged in concerted activities for the purposes of col- lective bargaining and other mutual aid and protection. Hallenbeck was inducted into the United States Army on August 2, 1945. It will be recommended that the respondent, upon application by him within ninety (90) days after his discharge from the Armed Forces of the United States, offer him reinstatement to his former or substantially equivalent posi- tion without prejudice to his seniority 'or other rights and privileges and make him whole for any loss 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 he would normally have earned as wages during the periods: (1) between April 24, 1945, and the date of his induction, August 2, 1945, and (2) between, a date five (5) days after his timely application for reinstatement and the date of respondent's offer of reinstatement to him, less his net earn- ings 14 during these periods. Upon the basis of the foregoing findings of fact and upon the entire record in the ease the undersigned makes the following: CONCLUSIONS OF LAW 1. The Foreman's Association of America is a labor organization within the meaning of Section 2 (5) of the Act. 14 By "net earnings" is meant earnings less expenses , such as for transportation,' room and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See 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. it. B., 311 U. S. 7. WILSON FOUNDRY AND MACHINE COMPANY 571 2. By discriminating in regard to the hire and tenure of employment of Ronald C. Hallenbeck, thereby discouraging membership in a labor organization, re- spondent 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 its employees in the exercise of the rights guaranteed in Section 7 of the Act, 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 commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed hereby recommends that the respondent, Wilson Foundry and Machine Company, of Pontiac, Michigan, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in the Foreman's Association of America, or any other labor organization by discriminating in regard to hire and tenure of employment, or any term c.r condition of employment of its supervisory employees ; (b) In any other manner interfering with, restraining, or coercing its super- visory employees in the exercise of the lights to self-organization, to form labor organizations, to join or assist Foreman's Association of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Upon application by Ronald C. Hallenbeck, within ninety (90) days after his discharge from the Armed Forces of the United States, offer him reinstate- ment to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges he may have; (b) Make whole Ronald C. Hallenbeck for any loss of pay he may have suf- fered by reason of the respondent's discrimination against him in the manner set forth in "The remedy", by payment to him of a sum of money equal to the amount which he normally would have earned as wages during the periods between April 24, 1945 and August 2, 1945, the date of his induction into military service," and between five (5) days after his timely application for reinstate- ment and the date of the respondent's offer of reinstatement, less his net earn- ings 1e during these periods ; (c) Post at its plants in Pontiac, Michigan, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the Seventh Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; 16 The sum here provided to be paid shall be paid immediately without awaiting a final determination of the full amount he is awarded. 10 See footnote 14, supra. 572 DECISIONS , OF NATIONAL LABOR RELATIONS BOARD (d) File with the Regional Director for the Seventh 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 Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended , effective November 27, 1945, any party or counsel for the Board may within fifteen ( 15) days from the date of the entry of the order transferring the case to the Board , pursuant to Section 32 of Article II of said Rules and Regulations , file with the Board, Rochambeau Building, Washington 25, D. C, an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding ( including rulings upon all motions or objections ) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing - of such state- ment of exceptions and/or brief , the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said 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. ROBERT M. GATES, Trial Examiner. Dated May 7, 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 super- visory employees in the exercise of their right to self -organization, to forit labor organizations , to join or assist Foreman 's Association of America, or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will offer to the employee named below immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. Ronald C. Hallenbeck All our supervisory 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 employ- WILSON FOUNDRY AND MACHINE COMPANY 573 ment against any employee because of membership in or activity on behalf of any such labor organization. WILSON FOUNDRY & MACHINE 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 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.